By Tom Jackman
Washington Post Staff Writer
Sunday, June 21, 2009
The Virginia State Bar is trying to stop the state attorney general's office from distributing warning letters for jurors in capital cases that it says might discourage them from talking to defense lawyers.
The office represents the state in all appeals by condemned murderers, including civil challenges once criminal appeals are exhausted. For a decade, the office has supplied local prosecutors with a letter to send to jurors once a civil case starts, advising them that they might be contacted by someone representing the convicted killer who "may try to give the false impression that they are working on behalf" of the prosecution or the courts.
A state bar counsel has argued that the letter is "offensive" and an "impediment that's placed in the path of [a defense lawyer] who is trying to save another person's life." For the second time, the bar has begun disciplinary proceedings to stop the state from distributing the letter. In the first instance, the commonwealth's attorney in Winchester was publicly admonished by the bar for sending the letter to jurors, but a panel of judges reversed that finding.
The state bar is seeking to discipline the state's senior assistant attorney general in charge of death penalty cases for distributing the letters, which are to be signed by the local prosecutor. Since 2001, Katherine P. Baldwin Burnett has headed the attorney general's capital litigation unit, and she has testified that she has worked on every death penalty case in the state since joining the office in 1985. Burnett, 58, is a nationally recognized expert in handling death penalty appeals.
The letter first surfaced publicly in 2004. Attorneys for Edward Bell, who was convicted of killing a Winchester police officer in 1999, learned of it when they began contacting jurors several years later. The Virginia Association of Criminal Defense Lawyers filed a bar complaint against the Winchester prosecutor, Alexander R. Iden, and Iden was brought before a bar committee in April 2006 to answer charges that he had attempted to obstruct access to evidence and encouraged people to withhold information from the defense.
Iden, then a new prosecutor, hadn't tried the Bell case and said he wouldn't send the letter again. He said that Burnett provided him with the letter and that he sent it out largely unchanged. The bar committee determined that the prosecutor committed two violations and gave him a "public admonition." Iden's attorney, Rodney G. Leffler of Fairfax County, appealed the finding to a three-judge panel, which reversed the decision but did not issue an opinion or explanation.
The state bar is challenging Burnett's testimony in Iden's hearing, saying it was a "false statement of the law." Burnett said in her testimony that jurors are contacted by the defense team in every civil appeal and that the attorneys and investigators sometimes misrepresent themselves and coerce or harass jurors into signing false affidavits. She said it became the attorney general's policy in every capital case to send the warning letter to jurors.
Seth M. Guggenheim, assistant bar counsel, asked Burnett, "You think that interviewing jurors is something that just should not be done?"
"Not without a court order," Burnett said. "That is my belief, yes, sir, under the law. That's not just my belief. That's what the Virginia Supreme Court has said."
When bar committee members asked Burnett twice more about contacting jurors, she reiterated that "there is no duty or right for someone who is appointed to represent a death row inmate to go and contact every juror. No. The law to me says otherwise."
Jonathan Sheldon, a Fairfax lawyer who worked for Bell, filed a complaint against Burnett in 2006. Three years later, after the bar investigated and then recused itself -- the attorney general represents the bar in its own litigation -- a specially appointed lawyer in Richmond, John M. Oakey Jr., found that Burnett's answers in the hearings were "a false statement of the law" and that the juror letter violated the state rule prohibiting lawyers from obstructing another party's access to evidence.
Burnett has chosen to take her case directly to a three-judge panel. No hearing date has been set. If the panel finds that she violated rules or ethics, the discipline could range from a warning to the loss of her bar license, although many lawyers said they expect that a warning would probably be the harshest outcome.
Burnett declined to comment. In a written response to the bar complaint, she wrote that the juror letter was not intended "to prevent any juror from speaking to anyone, but simply to inform the juror so he or she would understand the situation accurately." The letter instructs jurors to demand official identification and contact the prosecutor for verification.
Guggenheim argued to the bar committee in the Iden case that "the letter is offensive because it serves an obstruction to these gentlemen [lawyers] doing their job effectively." In his appeal brief, Guggenheim said that lawyers are well within their rights to interview jurors, "in sharp contrast to the inaccurate and unfounded assertions contained in the testimony of the senior assistant attorney general."
The attorney general's office has continued to advise prosecutors to send the letter to jurors in capital cases. In a statement, Attorney General William C. Mims said, "I have complete confidence in Katherine's legal skills and ethical standards."
It is unclear how many prosecutors send the letter, but the two most experienced in the state, Prince William County's Paul B. Ebert (D) and Fairfax's now-retired Robert F. Horan Jr., said they had never used it but approve of it. Both said jurors often complained about post-trial contact by defense lawyers or investigators.
"There's guys involved in capital litigation who have really abused the sanctity of jurors," Ebert said. "I don't know that [Burnett] did anything wrong."
Horan said of the letter: "I don't think there's anything wrong with a prosecutor advising jurors that they can talk or not talk. I also think it's all right to say that the questioner doesn't have their best interests at heart."