A questionable prosecutor pursuing questionable prosecutions

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Lawyers are required to adhere to the Rules of Professional Conduct enacted by the highest court in each state and in the District of Columbia.

The rules of most jurisdictions are similar, whether Maryland, Virginia or the District of Columbia. What they have in common from state to state is they are enacted not to punish lawyers for misconduct but to protect the public from unscrupulous and unethical lawyers.

A grievance commission usually charges violations of the rules. Violations charged are ordinarily tried before the states’ highest courts. If a lawyer is found to have violated a rule, they will be subject to sanctions which can include a warning or in cases where the public is at risk, loss of license.

Rule 3.8 of the DC Rules, Special Responsibility of a Prosecutor, provides the prosecutor in a criminal case shall not, in exercising discretion to investigate or prosecute a case, discriminate against any person, nor shall that prosecutor file in court or maintain a charge that the prosecutor knows is not supported by probable cause. Nor shall the prosecutor prosecute to trial a charge that the prosecutor knows is not supported by evidence that would establish a prima facie showing of guilt.

Virginia’s version of Rule 3.8 is simplified and provides that a prosecutor shall not maintain a case the prosecutor knows is not supported by probable cause. Florida’s rule is pretty much the same as Virginia’s. For these purposes, probable cause is a reasonable belief that a crime was committed. For the belief to be reasonable, there has to be extrinsic support relied on by the prosecutor. Intuition or ESP is not sufficient.

Rule 3.8 is intended to ensure justice and fairness for a criminal defendant. The rule requires a prosecutor to act fairly. It recognizes that a prosecutor is a minister of justice, not just an advocate. A prosecutor has special obligations, and the fairly obvious goal of these obligations is to prevent the conviction of innocent people.

A new prosecutor, Lindsey Halligan, was appointed by the president to replace U.S. Attorney Erik Siebert, ousted by the president because he would not indict James Comey. She has no prosecutorial experience whatsoever. She knows little or nothing of criminal law; she was an insurance lawyer who had once been on Trump’s legal team. She is well aware that her predecessor, an experienced and aggressive prosecutor, said there was insufficient evidence to indict James Comey. She indicted anyway.

She was also aware because it was reported in the press that her head of major prosecutions, Elizabeth Yusi, also an experienced prosecutor, said there was not sufficient evidence to prosecute Letitia James. She indicted anyway.

By ignoring these opinions of experienced prosecutors and proceeding to indict these two individuals as she did, without any prosecutorial or criminal experience, by indicting Comey and James, she executed the written orders of the White House sent by the president to his attorney general in a social media post. This was her charge, regardless of the evidence or lack thereof. By doing so she violated Rule 3.8 and her responsibilities as a prosecutor. She did not have the experience or judgment to determine if probable cause existed or to go against the advice of experienced prosecutors who said it did not. But she did indict.

Her’s is not the type of violation that can be corrected with a warning from the highest court following charges brought. Nor, in our opinion, is suspension for a term a reasonable remedy. This is because the damage she has caused to the defendants, to the integrity of her office, and most importantly to the public by trampling the rule of law demands she be disbarred so she cannot continue to act as a lawyer. A prosecutor who serves the direction of a vengeful superior and ignores evidence in order to indict is a massive danger to this democracy. Their ticket needs to be pulled.

Editorial Advisory Board Members Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Catherine Curran O’Malley

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.