Ethics Case Against a Top State Appeals Lawyer Is Thrown Out

Washington Post Staff Writer
Friday, August 14, 2009

The Virginia State Bar's attempts to stop the state attorney general's office from distributing a letter to jurors in death penalty cases and to sanction a senior assistant attorney general for allegedly lying under oath have quietly died after a special counsel to the bar had the case dismissed.

The bar filed ethics charges in April against Katherine Baldwin Burnett, the senior assistant attorney general who oversees the state's handling of appeals by convicted murderers. It was the second time the bar tried to discipline a government attorney over a letter that Burnett's office asks that local prosecutors send to all jurors in capital cases in which convictions are being appealed. The letter advises jurors that defense lawyers or investigators may misrepresent themselves and that the jurors should contact the prosecutor before cooperating.

Legal ethics prohibit lawyers in a case from discouraging witnesses from speaking with the other side. In 2006, the bar tried to sanction Winchester Commonwealth's Attorney Alexander R. Iden for sending the letter to jurors, and a bar committee ruled that Iden deserved to be "publicly admonished." But Iden appealed to a three-judge panel and won a reversal.

The bar's special counsel, John M. Oakey Jr. of Richmond, said the ruling convinced him that he could not make a case against Burnett.

Oakey had filed the initial charges against Burnett, but he said he "was essentially doing what they told me to do," referring to members of a bar subcommittee. The subcommittee had recommended that he file charges against Burnett, a nationally known lawyer in death penalty appeals. Gov. Timothy M. Kaine (D) appointed Oakley to handle the case after the state bar decided that it had a conflict of interest because it is represented by the attorney general's office in other matters.

Complaints filed against any lawyer in Virginia are first examined by a three-member subcommittee, which then votes whether to file charges with a regional bar committee. After reviewing the case, Oakey said, he "recommended they not go forward." A majority of committee members disagreed.

"They voted 2-1 to go forward," he said. "I felt I had a professional obligation to prepare the charges, but I told the committee that my own ethical findings would require me to dismiss them."

Oakey and Burnett, through her attorney Craig S. Cooley, agreed to bypass the full bar committee in Richmond and go straight to a three-judge panel, which functions as an appeals court in the process. In late July, Oakey made his motion to dismiss, which the judges granted.

In addition to promoting the letter, Burnett was accused of "knowingly making a false statement of fact or law to a tribunal" for her sworn testimony in Iden's 2006 hearing. Burnett was asked, "So, you think that interviewing jurors is something that just should not be done?" Burnett responded: "Not without a court order. That is my belief, yes, sir, under the law. That's not just my belief. That's what the Virginia Supreme Court has said."

Burnett stated that belief two more times. Asked a fourth time by seemingly incredulous committee members, Burnett acknowledged that no law prohibits juror contact by defense lawyers. Cooley said that Burnett "misunderstood what she was being asked" the first three times and that she corrected herself.

Burnett did not return a call seeking comment. Cooley said he did not think that Burnett had committed a violation. He said the letter to jurors "will be changed to clarify that it's up to a juror" to decide whether to speak with defense counsel.

Jonathan Sheldon, the Fairfax lawyer who filed the complaint against Burnett, said he does not understand why Burnett cannot be pursued for repeatedly testifying to "something that she knew was false or intentionally misleading." Oakey said he could not discuss specifics of the case.

David Baugh, the state's capital case public defender in Richmond, said he resigned from the regional bar committee in April because of "many examples where there appears to be a different ethical standard for prosecutors" than for other lawyers cited for violations. In Burnett's case, "Oakey said, 'I don't see anything here' and deep-sixed it," Baugh said. "That's sad."

Attorney General William C. Mims said he was "very pleased with the decision to dismiss the case."

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