Fixing the Double Standard at the North Carolina Bar

Feb. 12, 2016 (Mimesis Law) — In North Carolina, the State Bar doesn’t seem to treat prosecutors and defense attorneys the same when it comes to lawyer discipline. The News and Observer reports:

For most of 2015, the North Carolina State Bar vigorously and publicly pressed ethics charges against two anti-death penalty lawyers for what were eventually judged to be unimportant inaccuracies in two sworn affidavits. During the same time, the bar privately dismissed complaints that three prominent prosecutors – one running for attorney general, another now a Superior Court judge – used a false affidavit in a racially divisive case that has roiled Winston-Salem for more than a decade.

It appears prosecutors in North Carolina experience a disciplinary system where their privacy matters. Like pretty much everywhere else, it seems they’re treated as upstanding public servants whose reputations shouldn’t be sullied by mere accusations of impropriety. They’re given a very fair shake too, and their problems quietly fade away unless they did something really wrong. They have higher office to seek or higher office to enjoy, after all, and even if they made a mistake, they were just trying to catch the bad guys and make everyone safer, right?

Sadly, that’s may be the opposite of what the three prominent prosecutors noted above were doing. Consider the facts of the case:

In December 1995, Jill Marker was five months pregnant and working at Silk Plant Forest, a store that sold artificial plants, when at the close of business an assailant beat her severely, nearly killing her. Marker gave birth months later while still in a coma. Today she is blind, brain-damaged, physically disabled and requires 24-hour care. For months, Winston-Salem police focused on Kenneth Lamoureux, a white man with a history of domestic violence. Marker had told a friend that Lamoureux became angry when she refused to go on a date with him. Witnesses saw him in the store the night of the attack.

And now consider the affidavit:

The affidavit, produced 12 years after the near-fatal assault, was the first and only document to allege that the victim, in the first minutes after the attack, identified her assailant as a black man, in a case where police pursued white suspects for the first five months of the investigation.

It’s almost hard to believe the situation isn’t a big, not very funny joke. Authorities had a guy with a history of domestic violence whom witnesses saw at the scene of the crime the night it happened and who was angry at the victim for not going on a date with him. Open and shut, right? Not in North Carolina, apparently, where authorities moved on to new suspects when that guy moved away (note to self: apply for admission to practice in North Carolina, where getting police to pursue a new suspect is apparently as simple as advising clients to leave town).

The unlucky new suspect who was ultimately convicted and sentenced to 29 years in prison happened to be black, and that sketchy affidavit only came to be after defense lawyers years later tried to get a hearing to examine evidence not heard at trial. It all started when an officer contacted the defense:

Miles said she was the first officer to interview Jill Marker at the store after the assault. According to Miles, Marker said her attacker was a black male. She also said Marker dictated a letter that night, as a last message to her husband, and asked Miles to give it to him. Miles said she passed it on that night to the lead detective.

That was totally different from what Miles said when they were still looking for the person responsible and not fighting to uphold a conviction. Back in the day, Miles said she wasn’t the first officer at the scene, that Marker was incoherent, and that she did not describe her attacker. And that letter? It seems the real letter was dated five months later and just congratulated Marker’s husband on the birth of his son, mentioning nothing about who committed the crime.

At that point, any rational prosecutor would’ve realized that Miles’ new version of events was false. An affidavit would be worthless. That’s what an agent assisting the prosecutors determined, and that’s what went into his report to them. They were undeterred:

Hall, the assistant district attorney, used parts of the SBI agent’s report as the foundation for an affidavit to be signed by Miles. The draft affidavit said Marker had identified a black assailant minutes after the attack, but did not mention that the SBI had noted that this contradicted Miles’ 1995 reports. Hall attached the letter to Marker’s husband as an exhibit.

Miles eventually even admitted her affidavit might be wrong too. She said her original report was more accurate.

It’s hard to imagine what more could’ve happened to show anyone with half a brain that anything involving Miles’s new recollection shouldn’t be taken seriously. So what did the prosecutors do with the thoroughly-discredited affidavit?

“I am holding in my hand a sworn affidavit by Arnita Miles, who was one of the first officers at the scene and the person who spoke with Jill while she lay on the floor of Silk Plant Forest,” O’Neill wrote. “Despite this evidence, the Duke Innocence Project continued to parade the name of Kenneth Lamoureaux as the person who likely committed this crime, knowing full well that Jill Marker said her attacker was a black man.”

While the prosecutors may not have tried to admit the affidavit into evidence in court, the fact anyone would talk about it at all is embarrassing. It should have been blatantly obvious that it was bullshit, yet the prosecution doubled down. They didn’t just quietly disagree about the facts based on some false evidence that supported their position; they actually mocked the defense with a false sworn statement, acting as if it was the defense with the indefensible position about what the victim said following the attack.

If that’s the sort of thing that gets privately dismissed by the state bar, then those publicly-pursued ethics charges against two defense attorneys must’ve involved something way worse, right? Something really awful?

Another article sums up one set of charges against a defense attorney quite succinctly:

The bar allegations against Stubbs focused on inconsistencies between court records and sworn statements that the defense team introduced from men who had been part of a 1994 jury pool but not selected for the panel in the case of Marcus Reymond Robinson, the first death-row inmate to have his sentence converted. The judge who heard the Racial Justice Act cases ruled in 2012 that the inconsistencies were immaterial and unintentional and did not weigh into his rulings.

So a prosecutor waves around an actual false affidavit, using it to underhandedly undermine defense attorneys, and the bar discretely lets it slide. A defense lawyer presents a sworn statement that a judge had already ruled contained only immaterial and unintentional inconsistencies, and she gets an admonishment that stands for five months before finally being vacated by a disciplinary panel. Luckily, as that article explained, the other defense attorney who apparently found herself facing bar discipline for essentially the same thing was cleared much sooner.

North Carolina certainly appears to have a double standard. While that sucks, however, it isn’t different from anyplace else, even if it does happen to be more extreme. What is different is that it’s gotten the attention of someone very important:

Bob Orr, a former North Carolina Supreme Court justice, says it’s time for a comprehensive outside review of the state agency that oversees lawyers.

And he’s identified the problem:

The bar, which has more than 28,000 members, has developed a divide similar to the one existing “in the society we live in,” Orr said. “There are two extreme camps,” Orr said, describing one side as more supportive of prosecutors and the other more supportive of defense attorneys. Orr sees a mindset of antagonism in disciplinary cases because many of the bar lawyers are former prosecutors themselves.

And then some:

“The ability to use the bar disciplinary process as a tool, a weapon, so to speak, is pretty powerful,” Orr added.

With that, a story of a double standard will hopefully turn into a push for serious reform that, while obviously much needed in North Carolina, should happen everywhere else too.

Defense attorneys simply aren’t as likely as prosecutors to rise in power in government. Prosecutors are the ones who will most likely go on to populate the higher level positions. They’ll become the judges or maybe even the legislators or governors. They’re the ones who are more likely to be calling the shots years from now, and they’re going to remember how tough it was to do their job. They’re going to have a mentality that theirs was noble work, and they’re going to think highly of a lot of the people who do it, including many whom they know personally. Orr apparently gets that.

More importantly, Orr sees the potential for abuse, and he isn’t willing to cast aside any thoughts of impropriety due to his automatic assumptions about the professionalism of prosecutors, something many people with his sort of power tend to do. That Orr is willing to not just point out that the bar is divided and that one side has the power, but to recognize that the situation is a real problem and actually subject the agency to scrutiny is a huge step.

Prosecutorial misconduct isn’t just a North Carolina problem. The disproportionately heavy-handed treatment of defense lawyers as compared to prosecutors in bar disciplinary matters isn’t just a North Carolina problem either. North Carolina stands out because now someone with the power to make a difference is actually using that power. It would be great if people like that in more states would do the same.

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