As part of its Continuing Legal Education (CLE) program, the Office of Legal Education has a Videotape Lending Library of tapes which are available for CLE credits in all states, except Delaware. Included in the OLE library is a two hour ethics training video entitled “Ethics Show with Mike Levy.” In his video seminar, Levy, Chief of the Computer Crime Section, reviews the Rules of Professional Conduct and addresses several applicable statutes, rules, regulations and cases, with particular attention to what the OLE describes as “the thorniest recurring ethical issues: Rule 3.3 on candor toward the tribunal; Rule 3.6 on publicity; Rule 3.8 on the special responsibilities of a prosecutor; and Rule 4.2 on contacts with represented parties.”
The entire lecture, produced by the DOJ in 2002, is long overdue for a formal showing in the Durham County District Attorney’s Office. However, one passage holds particular interest for those who took note of NC State Bar DHC Chair F. Lane Williamson’s recent reference to a seemingly obscure Colorado Supreme Court decision from May of 2002: In the Matter of Attorney C. At the April 13 DHC hearing on Nifong's motion to dismiss some of the ethical charges against him, Williamson announced his intention, absent any better suggestions, to employ the standards set forth by the Colorado Supreme Court as his guide in determining whether Defendant Nifong had violated Rule 3.8(d) which mandates, according to the model rule, that a prosecutor shall:
“make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”In part, the Colorado Supreme Court based its ruling on the American Bar Association model rul above and the ABA's Standards for Criminal Justice. The Colorado Supreme Court quotes the ABA standards as follows:
Per the Colorado case, Williamson noted that "timely" disclosure could rightly be defined as meaning prior to the next critical stage of the case, rather than at a “reasonable time" before trial as Defendant Nifong argued. To that end, the Colorado ruling reads:
The ABA Standards for Criminal Justice: Prosecution Function and Defense Function 3-3.11(a) (3d ed. 1993) provide that:A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.
"We do not accept the argument that the evidence need only be disclosed in advance of a proceeding at which that evidence would be specifically determinative. Rather, we conclude that if evidence is material to the outcome of the trial, then the prosecutor must disclose that evidence in advance of the next critical stage of the proceeding – whether the evidence would particularly affect that hearing or not."If the video by Mike Levy featured in the program is any guide, the Continuing Legal Education program offered by the Office of Legal Education uses exactly that Colorado standard and features the same case proposed by Williamson as its guide while comparing the ethics rules to the lower standard of due process.
A handout which accompanies the training video is a reminder of the April 13 DHC hearing:
Had attorneys Dudley Witt, David Freedman, and Mike Nifong viewed this training session prior to the hearing, they might have saved themselves some public embarrassment caused by their "medieval" argument. Other relevant portions of the ethics seminar would have served Defendant Nifong well had he viewed them prior to March 2006: