Rotunda in NY Times: Something Wrong With the Law?

Citing legal ethics, the Virginia State Bar advised Virginia lawyer Leslie P. Smith to remain silent for ten years about his belief that prosecutors in a landmark case committed misconduct by coaching a witness. He received different advice after approaching the state bar again in March 2007, subsequently coming forward to bring his observations to light. As a result, a state court judge commuted an inmate's death sentence to life in prison.

Commenting on the case in the New York Times, Professor Ronald Rotunda remarked that if the bar's initial advice was correct, "there is something wrong about the law, particularly if you are talking about execution or years in prison."

Lawyer Reveals Secret, Toppling Death Sentence, New York Times, January 19, 2007. By Adam Liptak.

"It was in Mr. Atkins's case that the United States Supreme Court ruled in 2002 that the Constitution bars the execution of the mentally retarded. But Virginia continued to pursue the death penalty against him, saying he was not mentally retarded. If Thursday's decision stands, that issue may never be resolved.

"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 Atkins defense did not learn of the coaching session for a decade, when Mr. Smith was freed from his ethical obligation not to prejudice his own client's case. Mr. Jones was sentenced to life in prison, and his case is concluded."

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