Death Sentence Commuted After Lawyer Receives Permission to Reveal Misconduct

If there is a nightmare that haunts criminal defense attorneys, it is being forced to remain silent when speaking out would prevent an innocent man from going to prison ... or worse. That was Leslie Smith's dilemma after he watched prosecutors coax his client, William Jones, to change his story so that it would match other evidence. Prosecutors used Jones to convince a jury that Daryl Atkins shot a man to death, resulting in a death sentence (later vacated) for Atkins.

“As he began to describe the positions of the individuals and the firing of the shots,” Mr. Smith said last month, referring to his client, a prosecutor “reached over and stopped the tape recorder.” ... The problem was that Mr. Jones’s account did not match the physical evidence. “This isn’t going to do us any good,” Ms. Krinick said, according to Mr. Smith.

For 15 minutes, Mr. Smith said, prosecutors coaxed and coached Mr. Jones to produce testimony against Mr. Atkins that did match the evidence.

After being told by ethics authorities for years that he could not reveal the prosecutor's misconduct, Smith finally received approval from the state bar's ethics authority to tell what he knew.

His testimony caused a state court judge in Yorktown, Va., to commute the death sentence of Daryl R. Atkins to life on Thursday, citing prosecutorial misconduct.

Smith's pursuit of the right result saved Atkins from facing the possibility of a second death sentence. Let's hope both Smith and Atkins can finally sleep easy.

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    And Justice For All.... (none / 0) (#1)
    by oldpro on Fri Jan 18, 2008 at 11:30:02 PM EST
    ...remember that Al Pacino movie?  Heartrending...also hilarious, unlike this story which isn't a movie -- but could be.

    I remember a lawyer in Washington State a few years ago who lost his license over revelations about a corrupt judge...

    this (none / 0) (#2)
    by wg on Fri Jan 18, 2008 at 11:58:53 PM EST
    This I like totally don't get. Isn't there a general rule that you are supposed to report official and private misconduct, crimes, etc. For example medical people and teachers are required to report all cases where they see evidence of abuse or maltreatment,  spousal and parental, aren't they? They are penalties for not doing that for Christ sake!  

    Besides even mere suspicions are supposed to be reported these days, see for example Department of Homeland Security web site where they strongly imply that this is your patriotic duty. Same with snitching which was always an essential part of the legal system.  

    Is this some kind of a joke?

    Lawyer ethics (none / 0) (#3)
    by womanwarrior on Sat Jan 19, 2008 at 12:54:58 AM EST
    I had the same question.  The article in the NYT says that the lawyer was told he could not jeopardize his own client's position.  But apparently that was because he did not tell them that his client had already been sentenced?  Or would it have made his client liable to be prosecuted for perjury?  I don't think a jury would find someone guilty for doing what the prosecutor said to do?  H'mm.  Glad the lawyers conscience kept bothering him.  

    Good to have you back, TChris.  


    Wow (none / 0) (#4)
    by Nowonmai on Sat Jan 19, 2008 at 06:53:20 AM EST
    Here is another man that was almost executed for something he didn't do. He was one of the lucky ones, the mistake/misconduct was made known before the execution, not afterward.

    Ethical rules (and real ethics) can create (none / 0) (#5)
    by Deconstructionist on Sat Jan 19, 2008 at 09:00:42 AM EST
     conflicts or dilemmas in certain cases.

      Here the lawyer's duty of loyalty to his client was seens as being in conflict with duties relating to the administration of justice.

     In situations such as this there is no course of action that does not compromise some important interest. As is true in amy aspects of life, sometimes there is not one course of action that is totally right and one that is totally wrong. At times like that the rules themselves offer incomplete guidancer and one must be guided by one's personal beliefs and conscience.

    confused (none / 0) (#6)
    by wg on Sat Jan 19, 2008 at 10:33:25 AM EST
    ...conflicts, dilemmas ???  ...

    What kind of ethics could possibly be behind prohibition on disclosure of prosecutorial or judicial misconduct?

    I guess one could argue that in theory at least everybody follows some kind of ethics including  thieves,  pimps, corrupted politicians, cops, judges etc, it is just that their morals are somewhat different than those of the rest of us.

    But clearly this is not the definition of ethics as generally accepted by any civil society.


    Re conflicting interests. The overriding interest here is that of the society at  large  and its citizens. The interest of justice is at best  secondary, although I would venture that they are not in conflict altogether. Exposing as widely as possible prosecutorial or judicial conduct is, ipso facto,  in  the best interest of the society and its citizens as IT IS in the interest of the justice.

    Hiding it could only be in the interest of a judicial system that has something to hide or system that wants to preserve its right to abuse its prerogatives.

    In other words the prosecutor had, imo,  an unqualified obligation to go public with what he knew about prosecutorial misconduct - the fact that the local "ethics" board was able* to silence him is shocking and tells you how far things degenerated in this profession.  

    Thanks TC for exposing this regrettable situation.


    * actually I shouldn't be really that surprised, some two years ago when checking rules of my local bar in connection with Mayfield affair I discovered to my great surprise that misrepresentation, even lying by members of Oregon bar has been fully immunized (when they act in their official capacities). For the rest of us those happen to be serious, prosecutable offenses.


    Consider the plea agreement v. defense lawyer's (none / 0) (#9)
    by Molly Bloom on Sat Jan 19, 2008 at 01:32:02 PM EST
    disclosure.  What was required of the defendant to receive the benefit of the plea?

    A lawyer has a duty of loyalty to his client. By exposing the prosecutorial misconduct- coaching the witness to change his story to conform to the physical evidence- will the lawyer be  violating his duty of loyalty to his client? Does the revelation expose his client to legal jeopardy? Remember a defense lawyer is an advocate for his client. He is not a judge, he is not a jury. His duties in the system are separate from both.  


    A lawyer has duties to HIS CLIENT (none / 0) (#7)
    by Deconstructionist on Sat Jan 19, 2008 at 11:50:46 AM EST

     that can and sometimes do conflict with the interests of the administration of justice and of society at large-- hence the possibility for dilemmas.

     This story is NOT about a PROSECUTOR facing a dilemma about whether to disclose information. It is about A DEFENSE LAWYER facing a dilemma about whether to expose prosecutorial misconduct when he feared doing so might jeopardize the interests of HIS CLIENT.

      If you do not even understand that it is not surprising you cannot grasp the reality that in real life simple answers are not always available.

    I wonder (none / 0) (#8)
    by Deconstructionist on Sat Jan 19, 2008 at 01:07:31 PM EST
     what Smith would have done if he had not received advice it was proper for him to disclose the information (or informed it was improper)  and the execution was imminent.

      Smith  never faced the ultimate dilemma, but if his client was in a position where the outcome of his case could still change for the worse and Smith had been forced to choose between potentially jeopardizing his client or allowing the execution to proceed he would have faced it.