Mr. Smith Goes to Court: Ethics Rules Prevented Attorney From Revealing Alleged Prosecutorial Abuse

It has taken by Virginia attorney Leslie P. Smith has finally got something off his chest. Smith was counsel a decade ago for a cooperating witness, William Jones, who wanted to avoid the death penalty for a murder by fingering his co-defendant, Daryl R. Atkins. Atkins got tagged for the murder and the death penalty. However, Smith remained silent about a major problem: he allegedly watched prosecutors coach and conform Jones’ testimony, which was fatally flawed. Now there is a major ethical battle running concurrently with the ongoing battle over putting Atkins to death.

Jones and Atkins were guilty of Eric Nesbitt in August 1996, a crimes partially captured on a bank video camera near an ATM as they drove with the victim.

The Atkins case is already something for the history books after the United States Supreme Court ruled in 2002 that states could not execute the mentally retarded. The case, however, continued as prosecutors argued that Atkins was not technically mentally retarded.

Throughout the decade of litigation, Smith bit his tongue. He was told by the state ethics board that he could not ethically reveal what he saw in the interrogation room because it could endanger Jones’ deal. The New York Times reported:

Mr. Smith had represented Mr. Atkins’s co-defendant, William Jones. In a tape-recorded debriefing session with prosecutors on Aug. 6, 1997, Mr. Jones told his version of the 1996 killing of Eric Nesbitt, whom the two men had robbed and forced to withdraw money from a bank machine.The crucial point was who had shot Mr. Nesbitt. Under Virginia law, only the triggerman was eligible for the death penalty.

“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.” According to Mr. Smith’s testimony and a memorandum he prepared soon after the debriefing, the prosecutor, Cathy E. Krinick, said, “Les, do you see we have a problem here?”

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. They flipped over a table and pretended it was a truck. “We used a chair, or something like that, to simulate the open door,” Mr. Smith testified, “because only one of the doors on the truck would open.”When the tape was turned back on, Mr. Jones’s story bolstered the case against Mr. Atkins as the triggerman.

The commonwealth’s attorney for York County, Eileen M. Addison, has issued a statement basically calling Atkins a liar while Krinick has stayed silent. Bolstering Atkins’ claims, however, is a mysterious 15 minute gap in the length of the taped interrogation.

Atkins was finally released to tell his story by a state ethics official, who reportedly refused to give him a written letter and insisted on telling him orally that he could speak. Hopefully, this bizarre approach to ethical consultation will be explored by the state board. It is entirely unclear why an ethics official would insist on such conditions in answering a question.

In the meantime, Addison is trying to get the court to toss out the prosecutorial misconduct inquiry on technical grounds. Addison’s reaction appears entirely hostile to any consideration of the matter rather than seeking an independent forum for review of the allegations. Atkins told one other attorney through the years about his allegations and appears quite credible.

As discussed with regard to the Masters case and prior prosecutorial misconduct here, prosecutorial misconduct tends not to result in punishment for the prosecutors because the violations are disclosed years later. Even after spending years in litigation and undoing a conviction, the public rarely blames prosecutors or police for being “too aggressive” or “overzealous.”

For the full story on Atkins, click here

3 thoughts on “Mr. Smith Goes to Court: Ethics Rules Prevented Attorney From Revealing Alleged Prosecutorial Abuse”

  1. In no area of the law is governmental discretion more immune from oversight than that of the prosecutor’s decision to prosecute. The Commonwealth Attorney (CA) is typically beyond judicial control as they have the Grand Jury to get around the determination of the Judge in a preliminary hearing. And as we know, the GJ will indict a ham sandwich if asked to do so. The defense bar is usually handicapped by overwork, almost menial public reimbursement, and the desire to keep the prosecutor on his good side so as to get concessions in the future. This is especially true in rural Virginia. The prosecutor also has willing apparachicks in the form of the police or sheriffs deputies who have, at most, a rudimentary grasp of due process, and to further compound the problem both the Sheriff and the CA are political animals unwilling to risk unpopularity by making tough decisions, especially in high profile cases. The Courts could do more, but usually don’t, and it appears as here the Virginia Bar is unwilling to venture out on a limb to protect the whistle-blower. A strange system indeed.

  2. I have to wonder how far prosecutorial misconduct has to go before the public will wake up and realize that even prosecutors are NOT above the law. When they bend and even break the rules of law and criminal procedure in their zeal to “win” a case, everybody loses. We (the public) have seen the innocent be wrongfully convicted for crimes they never committed, and it has happened far too often than any citizen should be comfortable with.

    Maybe a large number of the public don’t blame police, prosecutors and judges for being “too aggressive” or “overzealous.” Well, I do, especially when their “overzealousness” includes such misconduct includes unconstitutional interrogations by police, withholding of evidence by prosecutors, and on occasion, judicial misconduct by some judges who were former prosecutors themselves.

    One can only hope that the public will wake up and realize that if they don’t hold law enforcement officials accountable when they break the rules of law, one day it could be THEM or one of their family members who is falsely or mistakenly accused of a crime and wrongfully convicted. After that, it will be too late. Personally, I would NOT vote for a district attorney or an attorney general who thinks it’s okay for prosecutors to disregard the rules of law whenever it suits them to do so. A prosecutor with an unchecked lust for power will almost inevitably become unbalanced.

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