Ethics

In 2016, the Supreme Court tossed out the murder conviction of Michael Wearry, who was found guilty of a 1998 murder and sentenced to death in 2002. After that conviction was vacated, Wearry sued Scott Perriloux, a prosecutor, and Marlon Foster, a police officer, alleging that the prosecutor and police officer conspired to intimidate and coach a 10-year-old child into providing false testimony implicating Wearry in the murder.

Prosecutor and police officer: our conduct is protected by absolute prosecutorial immunity.

District court: no immunity.

Fifth Circuit: "Ann Sheperd, the owner of a home-health agency, lawyered up after being indicted for Medicare fraud. But there was a tiny problem: Unbeknownst to Sheperd, her pretrial lawyer—who represented her until days before trial—also represented one of the Government's star witnesses. Oops." Remand for a hearing to determine whether lawyer's conflict of interest affected representation.

The case is United States v. Sheperd, 19-20073 (5th Cir. Mar. 8, 2022).

Federal prosecutors have been seeking to limit people's rights to win compassionate release from prison in plea negotiations across the country, a practice that advocates say undermines the intent of Congress and produces cruel outcomes (view full article).

Two advocacy groups asked Deputy Attorney General Lisa Monaco on Tuesday to prohibit U.S. attorneys from including the "pernicious" language in plea agreements.

Federal prosecutors have recently been facing scrutiny for allegedly misleading the defense and the court (view full article).

In yet another example, on Jan. 25, the Chief U.S. District Judge for the Western District of New York ordered an evidentiary hearing in a $500 million real estate fraud case to determine whether the charges should be dismissed with prejudice because of discovery violations and misrepresentations that she is concerned may have been intentional.

The Michigan Court of Appeals has once again vacated a sentence imposed by a Michigan judge known for giving higher sentences than what guidelines recommend and making controversial comments from the bench, citing his “blatant refusal” to follow precedent that bars judges from considering acquitted conduct in sentencing (view full article).

The appeals court said a different judge will now sentence the defendant, Dawn Marie Dixon-Bey, who fatally stabbed her boyfriend on Valentine’s Day in 2015.

If you're a criminal defense lawyer and your drug-smuggling client "sent around $90,000 to an attorney in Jamaica, who then wired it to a realtor in New York City, who then sent it to a Ugandan diplomat . . . , who wired the money" to you to send to the mother of his child, you just might be conspiring to launder money. So found a Baltimore jury. Attorney: this is a silly legal theory.

At least four cases handled by a Maryland judge are being challenged after he presided over a series of hearings and did not reveal he was in talks to accept a job in the office of local prosecutors (view full article).

Disgruntled lawyers may grumble about a judge in private. Really disgruntled lawyers might even post disparaging Facebook comments on the judge's personal Facebook page. Only super-mega-disgruntled lawyers, though, file First Amendment lawsuits against judges who block them from posting disparaging Facebook comments on the judge's personal Facebook page. And that last kind loses. Texas judge who blocked a lawyer from his Facebook page and deleted the lawyer’s negative comments sued judge for First Amendment. Fifth Circuit (unpublished): No violation.

The State Bar of Michigan recommended that judges rarely dig into a lawyer's reasons for withdrawal from a case and that lawyers concerned about mental incapacity of a client should ask the client to submit to an evaluation, in the bar's first pair of ethics opinions of the year (view full article).

The U.S. Supreme Court declined on Monday to examine the constitutionality of a criminal contempt conviction for disbarred human rights lawyer Steven Donziger that was obtained by court-appointed prosecutors, prompting a dissent from Justice Neil Gorsuch, who decried the broken "constitutional promise" of having separation between judges and prosecutors (view full order).