Unethical Conduct by Prosecutor Leads to Evidence Suppression
According to the U.S. Supreme Court, even if the police know that an arrestee's family has hired a lawyer for the arrestee, and know that the lawyer doesn't want the arrestee to be interrogated without counsel, the police may interrogate the arrestee if the arrestee agrees to answer questions without a lawyer. The arrestee must knowingly waive the right to counsel, but the police aren't required to tell the arrestee that a lawyer has been hired for him; it's up to the arrestee to ask for a lawyer even if the arrestee doesn't know that he already has one. (Many state appellate courts have concluded that their state constitutions are more respectful of the right to counsel.)
A prosecutor's ability to question a suspect under the same circumstances is a different story. At least in most places, a prosecutor (like other lawyers) is ethically prohibited from speaking to an adverse party who is represented by a lawyer about matters that fall within the scope of the lawyer's representation. A violation of that rule led to the suppression of Darren Mack's admission that he shot his wife.
Washoe County District Attorney Richard Gammick failed in his duties as a prosecutor by not telling Darren Mack during conversations they had while he was on the run in Mexico that he was represented by lawyers, a judge ruled Friday.
Gammick knew that Mack's family had hired two lawyers after he disappeared following the stabbing and shooting on June 12, but Gammick did not tell Mack when they spoke on the phone on June 19 -- violating a professional code of conduct.
Kudos to the judge for imposing a sanction for the prosecutor's misconduct that keeps the trial untainted by unethical behavior.
Mack lawyer Scott Freeman said Herndon "used courage and insight in his ruling," and Mack's other lawyer, David Chesnoff praised his decision. "It's refreshing in a case of such significance that ethical and constitutional standards could be maintained," Chesnoff said.
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