The Bar's Lax Ethical Standards?

Like most states, in North Carolina the bar adjudicates allegations of attorneys’ ethical misconduct. Since we know that complaints have been filed against the “minister of justice,” at some point, Mike Nifong will appear before the bar’s Disciplinary Hearings Committee (DHC). Indeed, the N&O’s Steve Ford recently argued that voters (and, apparently, his paper’s editorial board) should defer to the bar in cases of ethical improprieties, and refrain from either removing or (apparently) heavily criticizing unethical prosecutors, lest doing so undermine the integrity of the system.

In recent years, North Carolina has experienced two high-profile cases of prosecutorial misconduct. The DHC’s resolution of these cases raises serious concerns about the bar’s commitment to rooting out unethical behavior among its membership, calling into question the wisdom of Ford’s preferred solution to the Nifong affair.

The first, and best-known, case involved the prosecution of Alan Gell, fallout from which triggered the state’s Open Discovery law. The prosecutorial misconduct was obvious and enormous: in a thumbnail sketch, prosecutors withheld from the defense notes of interviews with 18 people who saw the victim, Allen Ray Jenkins, alive after April 3, the day that prosecutors claimed that Gell killed Jenkins. The relevance of this date? After April 3, Gell was either out of state or incarcerated on unrelated charges, and therefore could not have committed the crime.

In a good example of the flaws in the Ashley/Brodhead/N&O editorial board/state NAACP thesis that the “process” is best served by allowing a procedurally flawed case to proceed to the jury, the Gell jury came back with a guilty verdict, and voted to impose the death sentence. Corrupted procedures beget corrupted results.

In the appeals process, Gell’s representation changed (two attorneys involved in the lacrosse case, Joseph Cheshire and Jim Cooney, were involved in the late-stages Gell defense). The conviction was overturned on appeal, and a new trial led to Gell’s acquittal—though this demonstrably innocent man spent over nine years in prison.

The state bar considered ethics allegations against David Hoke and Debra Graves, the two attorneys who handled the Gell prosecution for the attorney general’s special prosecutions division. (Their boss? Then-attorney general and current North Carolina governor Mike Easley.) Hoke and Graves had taken over the case after the State Bureau of Investigation had completed its investigation and the local district attorney had filed charges against Gell.

Despite a judge’s order to turn over all exculpatory material, Hoke and Graves never even reviewed the entire case file they received from the local D.A. They thus failed to provide to the defense either the 18 witness statements or the transcript of a phone call between one of Gell’s alleged accomplices and her boyfriend, in which the accomplice contradicted the story that she told police after turning state’s evidence.

The decision for the DHC was clearcut, and the committee found that Hoke and Graves had violated three elements of the state bar’s ethics code:

(a) By failing to produce all exculpatory witness interview reports when the Defendants had a duty under the Rules of Professional Conduct and existing case law to know the contents of the investigation files in the possession of the State and its agents, Defendants failed to make timely disclosure to the defense of all evidence or information known to the prosecution that tends to negate the guilt of the accused;

(b) By failing to verify the accuracy of the assertion of SBI Agent Ransome [the lead investigator] that all of the witness statements that needed to be produced were in fact produced, Defendants failed to make reasonable efforts to ensure that a nonlawyer’s conduct over which Defendants had direct supervisory authority was compatible with Defendants’ professional obligations; and

(c) By failing to produce all exculpatory witness statements as required by both the Rules of Professional Conduct and by the order of the court, Defendants engaged in conduct prejudicial to the administration of justice.

The bar’s punishment? A reprimand—the mildest possible rebuke.

The DHC cited the prosecutors’ “absence of prior disciplinary record” and “absence of dishonest or selfish motive,” and noted that the duo were “inexperienced” in capital cases. The DHC concluded that the prosecutors’ behavior constituted an “aberration.”

To review: Hoke and Graves cared so little about the administration of justice that they failed, before trying a case that could lead to the death sentence, to read their own case files. (Sound familiar?) For this offense, they received a reprimand. Alan Gell received more than nine years in prison.

Carrying the Ashley/Brodhead/N&O editorial board/state NAACP position to its logical conclusion, the “process” worked in this case.

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The Hoke/Graves decision was quickly followed by an even more blatant case of prosecutorial misconduct, and an even more dubious decision by the DHC. In 1996, Jonathan Hoffman was sentenced to death, based largely on the testimony of his cousin, Johnell Porter. But the prosecutors in the case, Kenneth Honeycutt and Scott Brewer, never revealed the extent of a sweetheart deal they had cut with Porter in exchange for his testimony. They even altered documents they provided to a judge describing the extent of their activities on Porter’s behalf.

After conviction, Hoffman’s attorneys uncovered the withheld evidence, but they delayed filing an ethics complaint as they negotiated with Honeycutt to get their client’s conviction set aside.

With even more blatant misconduct than the Hoke/Graves case, and without the ability to claim an “absence of dishonest or selfish motive” for their actions, Honeycutt and Brewer seemed certain to receive severe sanctions. But Honeycutt was the elected district attorney of Union County, and Brewer had moved on to become a district court judge. They thus enjoyed considerable influence within legal circles.

In a bizarre move, Superior Court Judge W. Erwin Spainhour effectively attempted to preempt the bar inquiry by issuing a finding of fact that Honeycutt and Brewer knew nothing about the federal immunity agreement. But no evidence existed to substantiate this claim, while considerable evidence suggested otherwise.

The DHC rejected Honeycutt’s argument that Spainhour’s finding should be binding on the state bar. But it dismissed the ethics complaint against Honeycutt and Brewer anyway, citing two grounds that were nothing short of incredible.

First, the DHC contended that the statute of limitations had expired for the State Bar to even investigate Honeycutt and Brewer. It creatively interpreted a State Bar rule that seemed to give both the State Bar and defense attorneys a year from discovering misconduct to pursue a complaint. Instead, claimed the DHC, the one-year clock started when either defense lawyers or the Bar discovered misconduct.

This ruling effectively gutted the State Bar’s ability to independently file ethics complaints. In almost all cases (the Nifong fiasco is an exception), defense attorneys will discover possible ethics violations long before the State Bar. Under Honeycutt, defense lawyers will have to make the choice that Hoffman’s attorneys did: do they file an ethics complaint, knowing that doing so will permanently alienate the prosecutor and preclude possibly fruitful negotiations for their client; or do they keep quiet, knowing that doing so will mean the State Bar’s statute of limitations likely will expire?

But the State Bar had a second grounds to pursue Honeycutt: under the relevant rule, the statute of limitations was waived for purposes of felonious misconduct—the sort of behavior in which Honeycutt allegedly engaged, and also what we’ve likely seen from Nifong in this case.

Under North Carolina’s general statutes, an amendment to the state bar’s ethics rules must be:

(1) certified to the Chief Justice of the North Carolina Supreme Court;

(2) entered by the Supreme Court in its minutes;

(3) published in the next ensuing number of the North Carolina Reports; and

(4) published in the North Carolina Administrative Code.

The felonious misconduct amendment was certified by the Chief Justice, entered into Supreme Court minutes, and published into the state’s administrative code. But, due to a clerical error, it never appeared in the North Carolina Reports, although it was slated to do so. Citing this extraordinarily narrow technicality, the DHC invalidated the amendment. It then cited the statute of limitations to dismiss the entire complaint against Honeycutt and Brewer.

Concluding that the bar’s allegations “describe serious prosecutorial misconduct,” the DHC conceded that “such misconduct may go undisciplined is difficult to accept.” The panel also recognized that, “especially in light of the controversy surrounding” the Hoke/Graves decision, its dismissal of the complaint against Honeycutt would have “negative consequences . . . on the public’s confidence and that of lawyers themselves in the capacity of the legal profession to regulate itself.”

That prediction proved prophetic. Ruth Sheehan lamented that the DHC’s record, she lamented, seemed designed to ensure “the bad-guy prosecutors getting off scot-free.” Former Superior Court Judge Tom Ross expressed alarm at the trend, noting “From my perspective as a lawyer and judge, the adversarial system has gotten to the point where winning is more important than justice.” (Sound familiar?) Indeed, according to an article by Joseph Neff in the N&O, “the State Bar has not suspended or revoked a prosecutor’s law license, the most severe punishment it can exact. Shame has been the only punishment.”

To review: Honeycutt and Brewer cared so little about the administration of justice that they willfully and dishonestly manipulated the system to bring about an unjust conviction. (Sound familiar?) For this offense, they received no punishment. Jonathan Hoffman received more than seven years in prison.

Carrying the Ashley/Brodhead/N&O editorial board/state NAACP position to its logical conclusion, the “process” worked in this case.

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The bar giving a pass to Honeycutt was the DHC’s last high-profile decision before Nifong launched his full-scale assault on the bar’s ethics code, beginning on March 23. There are, however, three differences between the Nifong case and the two cases cited above:

1. Nifong’s misconduct has received extensive national attention, most spectacularly in the 60 Minutes broadcast, and has essentially become the national image of North Carolina “justice.”
2. Nifong’s support from the state bar appears to be a mile wide and an inch deep: while the silence of North Carolina lawyers regarding his misconduct has been notable, Nifong’s public support from attorneys has been confined to scattered figures associated with either the Durham defense bar (which has to deal with his office) or the state NAACP (which has used his crusade to turn its back on 70 years of principles associated with the organization).
3. Nifong’s misconduct has been multi-faceted, unlike the other two cases, which involved only one major violation.

These three factors make it more likely that the Bar will move aggressively—at some point—against Nifong. Also, perhaps the legislature will adopt a permutation of the “three strikes” rule common in sentencing guidelines. If the bar punts on punishing Nifong after having already given a pass to the Gell case prosecutors and to Honeycutt, the legislature could create another body to regulate North Carolina lawyers’ ethical conduct.

But even if it is somewhat more likely the Bar will act against Nifong than it has in other recent cases of prosecutorial misconduct, the record of the Gell and Honeycutt cases renders dubious the N&O editorial board’s breezy assertions that we can count on the Bar to do the right thing, to such an extent that the general public and editorialists should look away from Nifong’s misconduct.