Something that has been bugging me... (WARNING: GRAPHIC CONTENT)

[andreww]

You're wish is my command, andreww.

http://www.cbsnews.com/news/searching-the-interrogation-tapes/

But she did go on the record with 48 Hours Investigates.

What does she think about these fibers? Says Patsy: "When I - after John discovering the body, and she was brought to the living room, when I laid eyes on her, I knelt down and hugged her. But I was, had my whole body on her body. My sweater fibers, or whatever I had on that morning, are going to transfer to her clothing, OK?"

Now, here's what John had already written in DOI:

I run to the living room and lay JonBenet on the floor in front of the Christmas tree. Patsy will be coming in the room. She must not see JonBenet like this. I get a blanket to cover JonBenet. I lay the blanket on her.

This is NOTY the same blanket from the basement. So Patsy couldn't have transferred the fibers like that, because she never came into contact with JB's body when she did her "Lazarus" performance.

Boston prosecutor Wendy Murphy summed it up thusly: Patsy's story would require "flat-out magic" to be true.

Thanks for that Dave.

 

[Anti-K]

That's really easy for any of us to say now.



Pot, meet kettle. That's the argument I've BEEN making, just the other way.

Bottom line: PR would have done well just keeping her mouth shut.



Somehow, I didn't THINK it would be.

I completely missed the post by questfortrue that you are quoting. Where may I find it?

I don’t know why you keep referring to Carnes, depostions, etc when I’ve pointed out that I am talking primarily about prosecutors acting in an investigatory role.

The paper I quoted involves a prosecutor who pretended to be a lawyer and that case itself does not support what I am saying, but the paper does.

I agree that Wood, et. al probably play loose with the rules, but I think this can and should also be said about Levin et. al. the difference here is that the Depositons were part of a formal legal process, whereas the interviews were not.
...

AK

 

[andreww]

.

I agree that Wood, et. al probably play loose with the rules
...

AK

Understatement of the year right there.



Sent from my iPhone using Tapatalk

 

[otg]

Sorry, but I didn’t express any concern for your credibility. I merely commented on it within a specific context.

...as I assumed. My response was given in the same vein as yours.

How do you know that the paragraph quoted shows an “obvious slant?”

...because I had English teachers throughout my education who taught me how to use and recognize words that produce the desired effect of an author. Words (as I pointed out previously) like “well intentioned”, “highly qualified”, and “credible” used to describe one side, as opposed to words like “weak”, “frustration”, “viciousness”, “attack”, and “unprecedented assault” to describe the other. Can you really not recognize the difference yourself?


(emphasis mine):

Perhaps, in an earlier paragraph Fisher established that the persons named were well intentioned, highly qualified and credible witnesses.

And, maybe Kane’s case was weak (many would agree); maybe Rile described Kane as being vicious in his attack and Fisher was simply using his description; maybe, Fisher, in a previous paragraph, showed reason to believe Kane was frustrated; etc (you don’t know, because you didn’t read the book).

Fisher does not need to be claiming that he heard from each of the four men. He could have spoke to one of them, he could have spoke to someone else present, he could have extrapolated one thing from another, he could have been carried away with hyperbole and assumptions; etc.

“Perhaps”, “maybe”, “could have spoke” (sic), “could have extrapolated”, “could have been”... Why speculate about what the author might have meant, AK? You claim to have read it (I didn’t). If that’s what the author said or “established” in an earlier paragraph, just say so. Did he? Did he say he got his information from each of the four witnesses personally, or second or third hand from someone else? Did he indeed “in an earlier paragraph... establish that the persons named were well intentioned, highly qualified and credible witnesses”? How did he establish that? Did he somehow set them apart from all the other “experts” he was referring to in the section of his book titled “Hired Guns, Smoke Blowers, and Phonies: The Expert Witness Problem”?

I think that when you write “it’s interesting that the book referenced (author, Jim Fisher) discusses how corruptible and unreliable “expert” witnesses are, and yet he refers to statements apparently made to him (Fisher) about “secret” GJ testimony by the three “hired guns” that you are indeed talking about ethical behavior. Indeed.

Previously you stated the following:

Nothing “secret” or unethical to see here, as the courts did determine (see: http://tinyurl.com/krhse8s) that witnesses may speak “about their testimony once a grand jury is disbanded.”

To which I replied:

I never claimed anything was unethical about their discussing their testimony.

However, it’s been called to my attention (thank you, Cynic) that I may have been wrong about the propriety of their discussing their GJ testimony. Your link to the district court’s decision was overturned (at least partially) on appeal to the circuit (higher level than district) court. The appeal by Mary Keenan (later Lacy) on that decision to the U.S. Court of Appeals for the Tenth Circuit in 2003 upheld the constitutionality of the Colorado statute governing the secrecy of grand jury investigations. The decision can be read here:

http://law.justia.com/cases/federal/appellate-courts/F3/338/1136/550043/

As to how my closing remarks were relevant to the quote - what? See where I wrote, BTW? That means that I’m adding information.

BTW, the title for the chapter being discussed is: Expert vs Expert.
...

AK

BTW, the above referenced circuit court decision didn’t limit LHP (or Rile, Cunnigham, or Vacca) from discussing their knowledge (independent of the GJ proceedings) about anything outside of the GJ room. The limitation is only on anything taking place within the context of the GJ proceedings. That being the case, I think the ethics of an “expert witness” who does reveal information about the GJ proceedings (or their testimony in it) might indeed be questioned.


I doubt Stan Garnett will be filing charges against any of them any time soon -- but certainly, he could.

 

[questfortrue]

I completely missed the post by questfortrue that you are quoting. Where may I find it?
~RSBM~
AK

Respectfully, AK, the document written by Ms. Cross does not support that attorneys in Colorado may lie when involved in an investigatory activity, as for example when they are interviewing clients. Ms. Cross was advocating (simply as a law student) for a change to the Rules of Professional Conduct, in cases where it is deemed to be for the public good.

In the two cases cited in Cross’s paper, the Colorado courts ruled against the attorneys Pautler and Reichman on the use of deceit, fraud, dishonesty, misrepresentation during an investigation. In the case of Pautler the ruling was actually appealed, however the court sustained the ruling.

It is noted that there is a body of law which states that if an attorney is acting in the role of a cop, and lies to protect a life or lives, then, depending on the circumstances, the Rules of Professional Conduct may not necessarily apply. That’s not the situation in an interview process.

Had the case against the Rs ever been prosecuted, the evidence of fibers in the ligature, paint tray and in the crotch of the panties, would be argued by experts for the defense. As the lawyers for Patsy and JR were present at these interviews, I personally think it would have been really foolish of Levin or Haney to manufacture any false evidence. Besides jeopardizing the licenses of the attorneys responsible for deceit, had it ever gone to court, false evidence might enable the case to be thrown out.

When LW heard the fibers in the crotch of the panties question, he had a lawyerly explosion. There were a couple of reasons for the meltdown, imo. One, he wanted to make sure that on behalf of his client he objected strenuously to a report he had not seen, and did not want anyone else to consider to be true, if the interviews ever became public. Two, he really wanted to see those reports, to make sure that they had experts lined up to dispute them.

I’m guessing we’ll have to agree to disagree on this paper, but here are the links to my previous posts:

http://www.websleuths.com/forums/sh...nBenet-Ramsey’s-death&p=11051379#post11051379
http://www.websleuths.com/forums/sh...nBenet-Ramsey’s-death&p=11064294#post11064294

 

[Anti-K]

...as I assumed. My response was given in the same vein as yours.


...because I had English teachers throughout my education who taught me how to use and recognize words that produce the desired effect of an author. Words (as I pointed out previously) like “well intentioned”, “highly qualified”, and “credible” used to describe one side, as opposed to words like “weak”, “frustration”, “viciousness”, “attack”, and “unprecedented assault” to describe the other. Can you really not recognize the difference yourself?


(emphasis mine):“Perhaps”, “maybe”, “could have spoke” (sic), “could have extrapolated”, “could have been”... Why speculate about what the author might have meant, AK? You claim to have read it (I didn’t). If that’s what the author said or “established” in an earlier paragraph, just say so. Did he? Did he say he got his information from each of the four witnesses personally, or second or third hand from someone else? Did he indeed “in an earlier paragraph... establish that the persons named were well intentioned, highly qualified and credible witnesses”? How did he establish that? Did he somehow set them apart from all the other “experts” he was referring to in the section of his book titled “Hired Guns, Smoke Blowers, and Phonies: The Expert Witness Problem”?

Previously you stated the following:
To which I replied:


However, it’s been called to my attention (thank you, Cynic) that I may have been wrong about the propriety of their discussing their GJ testimony. Your link to the district court’s decision was overturned (at least partially) on appeal to the circuit (higher level than district) court. The appeal by Mary Keenan (later Lacy) on that decision to the U.S. Court of Appeals for the Tenth Circuit in 2003 upheld the constitutionality of the Colorado statute governing the secrecy of grand jury investigations. The decision can be read here:

http://law.justia.com/cases/federal/appellate-courts/F3/338/1136/550043/


BTW, the above referenced circuit court decision didn’t limit LHP (or Rile, Cunnigham, or Vacca) from discussing their knowledge (independent of the GJ proceedings) about anything outside of the GJ room. The limitation is only on anything taking place within the context of the GJ proceedings. That being the case, I think the ethics of an “expert witness” who does reveal information about the GJ proceedings (or their testimony in it) might indeed be questioned.


I doubt Stan Garnett will be filing charges against any of them any time soon -- but certainly, he could.

I completely understand what you’re saying about the use of specific words, an, if I was forced to make an assessment based on a single paragraph – the same paragraph that I posted – then, I would draw the same conclusion as you did. Except, I would say that it SEEMS and not IT IS. But, I’m a Skeptic. I want to know more before I come to conclusions. Before I come to my conclusion I want to know the answers to as many of the questions you’ve just asked as possible.

I’m also aware that sometimes a bias is justified, so I try not to let the bias itself influence me too much. I just need to keep aware of it.

Anyway, let me give you the closing paragraphs of the chapter in question:
Within the forensic community, the debate over who wrote the ransom note was not over. In August 2004, at the American Society of Questioned Document Examiners annual convention held that year in Memphis, Howard Rile and Gideon Epstein presented their contradictory findings to the hundred or so document examiners in attendance. Using comparison word charts and other exhibits, Rile carefully pointed out the dissimilarities in the known and questioned writing that led him to the conclusion that Patsy Ramsey had probably not written the ransom note. Gideon Epstein, without word charts or exhibits to support his conclusion, spoke about the need for independent thinking and the value of an open mind. He thought that perhaps his colleagues were a bit too critical of their graphology-oriented counterparts, going so far as to say that in some cases the graphological point of view might be helpful in the analysis of a document. This was not what most of those in the audience wanted to hear. With forensic handwriting identification being regularly challenged in court as unscientific and unreliable under Daubert criteria, this was not the time to associate it with graphology or graphologist-trained document examiners.

There are Gideon Epsteins in all the forensic sciences, practitioners who are mavericks but qualified, courageous and sincere. Free thinking, open-mindedness, and independence are not bad traits for a forensic scientist. The questions that have to be answered, however, are these: is Epstein (and the two former FBI examiners) correct and the majority wrong? is there in fact too much groupthink in forensic science? Could Epstein be wrong about the Ramsey document but right about his profession, generally? Or is he wrong on all counts?

The Jonbenet Ramsey case, like the Lindbergh kidnapping trial earlier in the century, publicized forensic document examination. The Lindbergh case, considered a landmark in the history of this criminalist field, did not involve competing experts. That case put forensic handwriting on the map, while the Ramsey case, featuring credible experts on both sides of the issue, put its future in danger. And there was more to come in the Jonbenet Ramsey case. With respect to the field of forensic document examination, the second act [JMK] would not be helpful.

And, after typping all that out, I’ve forgotten if I had anything else to say.

Oh yeah! Thanks for the information on the appeal. This is new to me. On this, I was wrong. Thanks for the correction.
...

AK

 

[Anti-K]

Respectfully, AK, the document written by Ms. Cross does not support that attorneys in Colorado may lie when involved in an investigatory activity, as for example when they are interviewing clients. Ms. Cross was advocating (simply as a law student) for a change to the Rules of Professional Conduct, in cases where it is deemed to be for the public good.

In the two cases cited in Cross’s paper, the Colorado courts ruled against the attorneys Pautler and Reichman on the use of deceit, fraud, dishonesty, misrepresentation during an investigation. In the case of Pautler the ruling was actually appealed, however the court sustained the ruling.

It is noted that there is a body of law which states that if an attorney is acting in the role of a cop, and lies to protect a life or lives, then, depending on the circumstances, the Rules of Professional Conduct may not necessarily apply. That’s not the situation in an interview process.

Had the case against the Rs ever been prosecuted, the evidence of fibers in the ligature, paint tray and in the crotch of the panties, would be argued by experts for the defense. As the lawyers for Patsy and JR were present at these interviews, I personally think it would have been really foolish of Levin or Haney to manufacture any false evidence. Besides jeopardizing the licenses of the attorneys responsible for deceit, had it ever gone to court, false evidence might enable the case to be thrown out.

When LW heard the fibers in the crotch of the panties question, he had a lawyerly explosion. There were a couple of reasons for the meltdown, imo. One, he wanted to make sure that on behalf of his client he objected strenuously to a report he had not seen, and did not want anyone else to consider to be true, if the interviews ever became public. Two, he really wanted to see those reports, to make sure that they had experts lined up to dispute them.

I’m guessing we’ll have to agree to disagree on this paper, but here are the links to my previous posts:

http://www.websleuths.com/forums/sh...nBenet-Ramsey’s-death&p=11051379#post11051379
http://www.websleuths.com/forums/sh...nBenet-Ramsey’s-death&p=11064294#post11064294

Thank you questfortrue.

Respectfully, the cases that you refer to (from the paper) involve prosecutors deceiving the court. This is not what we are talking about and not the relevant parts of the paper. Please re-read the following (from the paper) and tell me what you think is being said. BBM. I might have missed some snips. Here’s the paper: http://tinyurl.com/krhse8s

At the same time, however, prosecutors are "regulated
less restrictively than other lawyers." '
24 This divergent treatment
is not seen in ethics rules, but rather in the absence of rules
addressing much of prosecutors' conduct and in the absence of
cases where disciplinary authorities have sanctioned prosecutors. 25
The cases that do address prosecutorial deceit make it clear that,
regardless of what the Colorado authorities may have said in
Pautler, the context of the perpetrated deceit does count. 26 There
are two main lines of case law dealing with prosecutorial deceit.
The cases that find deceit impermissible are those in which prosecutors
deceive the courts in some way, while the cases which find
deceit permissible deal with prosecutors instructing law enforcement
officers to use deceit during investigations.
..
Both Pautler opinions rely mainly on three cases, Friedman,l2 8
Malone,'129 and Reichman,13 ° in which laudable motive is found not
to excuse deceit. All of these cases, however, have to do with deceit
perpetrated on a court.
<snip>
Authorities, however, have not tended to question prosecutors'
use of out-of-court misrepresentations during investigations. 138
Disciplinary authorities have allowed prosecutors to supervise and
direct investigations involving deceit. 39 Law enforcement officers
regularly deceive suspects; it is considered an accepted investigative
technique. 4 Disciplining an attorney for supervising these investigatory
practices would encumber meaningful investigations, so courts have determined that public policy favors deception over
unchecked lawlessness and have given prosecutors discretion in directing
investigations. 141
When prosecutors are directly involved in investigations, the ethical
standards that apply are not so clear. Up until 2001, few ethics
opinions or rules had ever directly addressed this question.
<snip>
In 2002, a Utah ethics opinion stated
that "as long as a prosecutor's. . .conduct employing dishonesty,
fraud, deceit or misrepresentation is part of an otherwise lawful
government operation, the prosecutor... does not violate [the ethics]
Rule.'14 The Committee further stated that there should be
no distinction between supervising an activity and directly taking
part in it.145 [yes, I understand Utah is not Co. ]
<end>

I would agree with everything you said about Haney, Levin, and the fibers if the questions had been asked during a deposition. But, they were asked during informal interviews where deceptions is accepted and is the norm.
...

AK

 

[BBB167893]

I completely missed the post by questfortrue that you are quoting. Where may I find it?

Here you are:

http://www.websleuths.com/forums/sh...nBenet-Ramsey's-death&p=11064294#post11064294

I don&#8217;t know why you keep referring to Carnes, depostions, etc when I&#8217;ve pointed out that I am talking primarily about prosecutors acting in an investigatory role.

The subject was brought up and you segued into the current subject. I'm trying to keep the narrative unified. Excuse me.

I agree that Wood, et. al probably play loose with the rules, but I think this can and should also be said about Levin et. al. the difference here is that the Depositons were part of a formal legal process, whereas the interviews were not.

If you had some proof that Levin did such.

 

[BBB167893]

Anyway, let me give you the closing paragraphs of the chapter in question:
Within the forensic community, the debate over who wrote the ransom note was not over. In August 2004, at the American Society of Questioned Document Examiners annual convention held that year in Memphis, Howard Rile and Gideon Epstein presented their contradictory findings to the hundred or so document examiners in attendance. Using comparison word charts and other exhibits, Rile carefully pointed out the dissimilarities in the known and questioned writing that led him to the conclusion that Patsy Ramsey had probably not written the ransom note. Gideon Epstein, without word charts or exhibits to support his conclusion, spoke about the need for independent thinking and the value of an open mind. He thought that perhaps his colleagues were a bit too critical of their graphology-oriented counterparts, going so far as to say that in some cases the graphological point of view might be helpful in the analysis of a document. This was not what most of those in the audience wanted to hear. With forensic handwriting identification being regularly challenged in court as unscientific and unreliable under Daubert criteria, this was not the time to associate it with graphology or graphologist-trained document examiners.

There are Gideon Epsteins in all the forensic sciences, practitioners who are mavericks but qualified, courageous and sincere. Free thinking, open-mindedness, and independence are not bad traits for a forensic scientist. The questions that have to be answered, however, are these: is Epstein (and the two former FBI examiners) correct and the majority wrong? is there in fact too much groupthink in forensic science? Could Epstein be wrong about the Ramsey document but right about his profession, generally? Or is he wrong on all counts?

The Jonbenet Ramsey case, like the Lindbergh kidnapping trial earlier in the century, publicized forensic document examination. The Lindbergh case, considered a landmark in the history of this criminalist field, did not involve competing experts. That case put forensic handwriting on the map, while the Ramsey case, featuring credible experts on both sides of the issue, put its future in danger. And there was more to come in the Jonbenet Ramsey case. With respect to the field of forensic document examination, the second act [JMK] would not be helpful.

And, after typping all that out, I&#8217;ve forgotten if I had anything else to say.

Oh yeah! Thanks for the information on the appeal. This is new to me. On this, I was wrong. Thanks for the correction.
...

AK

Just let me put my two cents in here: Gideon Epstein and Cina Wong were threatened before and after the Wolf case to get them to renounce their findings and no-show the depositions. Wong got threatening calls and both were threatened with libel suits afterwards if they ever stated that PR wrote the note again. Despite these scare tactics, neither shrank away. Neither of them hid behind lawyers or rules and regulations, and neither of them has EVER recanted or shied away from their findings. If that's not courageous, I don't know what is.

 

[BBB167893]

Thank you questfortrue.

Respectfully, the cases that you refer to (from the paper) involve prosecutors deceiving the court. This is not what we are talking about and not the relevant parts of the paper. Please re-read the following (from the paper) and tell me what you think is being said. BBM. I might have missed some snips. Here&#8217;s the paper: http://tinyurl.com/krhse8s

At the same time, however, prosecutors are "regulated
less restrictively than other lawyers." '
24 This divergent treatment
is not seen in ethics rules, but rather in the absence of rules
addressing much of prosecutors' conduct and in the absence of
cases where disciplinary authorities have sanctioned prosecutors. 25
The cases that do address prosecutorial deceit make it clear that,
regardless of what the Colorado authorities may have said in
Pautler, the context of the perpetrated deceit does count. 26 There
are two main lines of case law dealing with prosecutorial deceit.
The cases that find deceit impermissible are those in which prosecutors
deceive the courts in some way, while the cases which find
deceit permissible deal with prosecutors instructing law enforcement
officers to use deceit during investigations.
..
Both Pautler opinions rely mainly on three cases, Friedman,l2 8
Malone,'129 and Reichman,13 ° in which laudable motive is found not
to excuse deceit. All of these cases, however, have to do with deceit
perpetrated on a court.
<snip>
Authorities, however, have not tended to question prosecutors'
use of out-of-court misrepresentations during investigations. 138
Disciplinary authorities have allowed prosecutors to supervise and
direct investigations involving deceit. 39 Law enforcement officers
regularly deceive suspects; it is considered an accepted investigative
technique. 4 Disciplining an attorney for supervising these investigatory
practices would encumber meaningful investigations, so courts have determined that public policy favors deception over
unchecked lawlessness and have given prosecutors discretion in directing
investigations. 141
When prosecutors are directly involved in investigations, the ethical
standards that apply are not so clear. Up until 2001, few ethics
opinions or rules had ever directly addressed this question.
<snip>
In 2002, a Utah ethics opinion stated
that "as long as a prosecutor's. . .conduct employing dishonesty,
fraud, deceit or misrepresentation is part of an otherwise lawful
government operation, the prosecutor... does not violate [the ethics]
Rule.'14 The Committee further stated that there should be
no distinction between supervising an activity and directly taking
part in it.145 [yes, I understand Utah is not Co. ]
<end>

I would agree with everything you said about Haney, Levin, and the fibers if the questions had been asked during a deposition. But, they were asked during informal interviews where deceptions is accepted and is the norm.
...

AK

If Lin Wood accepts my offer, you just might get your wish!

 

[questfortrue]

Thank you questfortrue.

Respectfully, the cases that you refer to (from the paper) involve prosecutors deceiving the court. This is not what we are talking about and not the relevant parts of the paper. Please re-read the following (from the paper) and tell me what you think is being said. BBM. I might have missed some snips. Here&#8217;s the paper: http://tinyurl.com/krhse8s

At the same time, however, prosecutors are "regulated
less restrictively than other lawyers." '
24 This divergent treatment
is not seen in ethics rules, but rather in the absence of rules
addressing much of prosecutors' conduct and in the absence of
cases where disciplinary authorities have sanctioned prosecutors. 25
The cases that do address prosecutorial deceit make it clear that,
regardless of what the Colorado authorities may have said in
Pautler, the context of the perpetrated deceit does count. 26 There
are two main lines of case law dealing with prosecutorial deceit.
The cases that find deceit impermissible are those in which prosecutors
deceive the courts in some way, while the cases which find
deceit permissible deal with prosecutors instructing law enforcement
officers to use deceit during investigations.
..
Both Pautler opinions rely mainly on three cases, Friedman,l2 8
Malone,'129 and Reichman,13 ° in which laudable motive is found not
to excuse deceit. All of these cases, however, have to do with deceit
perpetrated on a court.
<snip>
Authorities, however, have not tended to question prosecutors'
use of out-of-court misrepresentations during investigations. 138
Disciplinary authorities have allowed prosecutors to supervise and
direct investigations involving deceit. 39 Law enforcement officers
regularly deceive suspects; it is considered an accepted investigative
technique. 4 Disciplining an attorney for supervising these investigatory
practices would encumber meaningful investigations, so courts have determined that public policy favors deception over
unchecked lawlessness and have given prosecutors discretion in directing
investigations. 141
When prosecutors are directly involved in investigations, the ethical
standards that apply are not so clear. Up until 2001, few ethics
opinions or rules had ever directly addressed this question.
<snip>
In 2002, a Utah ethics opinion stated
that "as long as a prosecutor's. . .conduct employing dishonesty,
fraud, deceit or misrepresentation is part of an otherwise lawful
government operation, the prosecutor... does not violate [the ethics]
Rule.'14 The Committee further stated that there should be
no distinction between supervising an activity and directly taking
part in it.145 [yes, I understand Utah is not Co. ]
<end>

I would agree with everything you said about Haney, Levin, and the fibers if the questions had been asked during a deposition. But, they were asked during informal interviews where deceptions is accepted and is the norm.
...

AK

Well, looks like we need a judge here. Thank you, AK.
Just to be clear, in terms of my understanding, I grasp what you&#8217;re saying regarding the difference between lawyers functioning as prosecutors (advocates) in a court and involving themselves as investigators outside the court.

But to stick with Colorado's decisions - from the Colorado Bar website pertaining to the Pautler&#8217;s decision:
The Rules of Professional Conduct apply to anyone licensed to practice law in Colorado. See In re C de Baca, 11 P.3d 426, 429-30 (Colo. 2000) (ruling that lawyers must adhere to the Rules of Professional Conduct even when suspended from the practice of law). The Rules speak to the "role" of attorneys in society; however, we do not understand such language as permitting attorneys to move in and out of ethical obligations according to their daily activities. Pautler cites Higgs v. District Court, 713 P.2d 840 (Colo. 1985), for the proposition that this court has provided a test for distinguishing when prosecutors act as "advocates" and when they act as "investigators," for purposes of governmental immunity. Id. at 853. Such test exists, but we hold here that in either role, the Rules of Professional Conduct apply. The obligations concomitant with a license to practice law trump obligations concomitant with a lawyer&#8217;s other duties, even apprehending criminals.

Reichman violated DR 1-102(A)(4), the identically worded predecessor to Colo. RPC 8.4(c) (One of Pautler's violations.)

The Colorado Bar website further notes that Only Utah and Oregon have construed or changed their ethics rules to permit government attorney involvement in undercover investigative operations that involve misrepresentation and deceit.

 

[Anti-K]

Well, looks like we need a judge here. Thank you, AK.
Just to be clear, in terms of my understanding, I grasp what you&#8217;re saying regarding the difference between lawyers functioning as prosecutors (advocates) in a court and involving themselves as investigators outside the court.

But to stick with Colorado's decisions - from the Colorado Bar website pertaining to the Pautler&#8217;s decision:
The Rules of Professional Conduct apply to anyone licensed to practice law in Colorado. See In re C de Baca, 11 P.3d 426, 429-30 (Colo. 2000) (ruling that lawyers must adhere to the Rules of Professional Conduct even when suspended from the practice of law). The Rules speak to the "role" of attorneys in society; however, we do not understand such language as permitting attorneys to move in and out of ethical obligations according to their daily activities. Pautler cites Higgs v. District Court, 713 P.2d 840 (Colo. 1985), for the proposition that this court has provided a test for distinguishing when prosecutors act as "advocates" and when they act as "investigators," for purposes of governmental immunity. Id. at 853. Such test exists, but we hold here that in either role, the Rules of Professional Conduct apply. The obligations concomitant with a license to practice law trump obligations concomitant with a lawyer&#8217;s other duties, even apprehending criminals.

Reichman violated DR 1-102(A)(4), the identically worded predecessor to Colo. RPC 8.4(c) (One of Pautler's violations.)

The Colorado Bar website further notes that Only Utah and Oregon have construed or changed their ethics rules to permit government attorney involvement in undercover investigative operations that involve misrepresentation and deceit.

[video=youtube;3hIcKkKID8k]https://www.youtube.com/watch?v=3hIcKkKID8k[/video]


I don&#8217;t think that the Pautler&#8217;s decision pertains because Paulter was pretending to be a lawyer, he was misrepresenting his position and role.

IMO, the only thing from your quote that might be relevant is this: The obligations concomitant with a license to practice law trump obligations concomitant with a lawyer&#8217;s other duties, even apprehending criminals.

However, &#8220;even apprehending criminals&#8221; applies specifically to Paulter; but does not specifically address informal interviews conducted during an investigation; which, bring us back to my previous post.

Anyway, if we need a judge (we do! We do!), then wouldn&#8217;t it be fair to say that the point has been made well enough to allow for the possibility that a prosecutor, during informal interviews, may use deception because 1) &#8220;the absence of cases where disciplinary authorities have sanctioned prosecutors,&#8221; 2) &#8220;authorities... ...have not tended to question prosecutor&#8217;s use of out-of-court misrepresentations during investigations;&#8221; and, 3) Risk vs benefit. As I&#8217;ve said (I hope we agree on this!), during informal interviews deceptions is accepted and is the norm.
...

AK

 

[questfortrue]

I don’t think that the Pautler’s decision pertains because Paulter was pretending to be a lawyer, he was misrepresenting his position and role.

IMO, the only thing from your quote that might be relevant is this: The obligations concomitant with a license to practice law trump obligations concomitant with a lawyer’s other duties, even apprehending criminals.

However, “even apprehending criminals” applies specifically to Paulter; but does not specifically address informal interviews conducted during an investigation; which, bring us back to my previous post.

Anyway, if we need a judge (we do! We do!), then wouldn’t it be fair to say that the point has been made well enough to allow for the possibility that a prosecutor, during informal interviews, may use deception because 1) “the absence of cases where disciplinary authorities have sanctioned prosecutors,” 2) “authorities... ...have not tended to question prosecutor’s use of out-of-court misrepresentations during investigations;” and, 3) Risk vs benefit. As I’ve said (I hope we agree on this!), during informal interviews deceptions is accepted and is the norm.
...

AK

I do agree that there is lax oversight of prosecutors. Common ground on lax oversight!

If I understand you correctly your view is that slipshod oversight means attorneys will violate their Professional Rules of Conduct, and that it’s the norm that attorneys will lie to a suspect about evidence to entrap them. This seems like a question for the legal community about what the practice of law is in real life situations (as in interviewing suspects).

The subject matter I was focused on pertained to the Colorado Rules of Conduct and what the repercussions might be if they are violated. AFAIK, Colorado does not have specific rules releasing attorneys from the Professional Rules of Conduct whether it’s within an undercover sting operation (Reichman), whether it’s an attorney falsely claiming on the phone to be a public defender (Pautler) or whether it’s in an informal interview designed to entrap a suspect. It’s all under Professional Rules of Conduct 8.4.

A good discussion, AK, for reasons that may not be apparent to everyone here. We do indeed look at this from different viewpoints, and that describes much of the discussion on the forum. It seems as the evidence from the books written by detectives involved with the case and the evidence presented by attorneys in the interviews, cannot be “proven” here. Thus, all we are left with, as Olivia1996 says, is the Ramseys’ word on it all.

 

[cynic]

The subject matter I was focused on pertained to the Colorado Rules of Conduct and what the repercussions might be if they are violated. AFAIK, Colorado does not have specific rules releasing attorneys from the Professional Rules of Conduct whether it&#8217;s within an undercover sting operation (Reichman), whether it&#8217;s an attorney falsely claiming on the phone to be a public defender (Pautler) or whether it&#8217;s in an informal interview designed to entrap a suspect. It&#8217;s all under Professional Rules of Conduct 8.4.
.

Hey QFT,

The Pautler case you presented illustrates your point unambiguously as to the legal landscape in Colorado.
If you put it all together, it shows that regardless of the setting and motive (and even when an attorney is under license suspension) adherence to RPC 8.4 is demanded.

Purposeful deception by an attorney licensed in our state is intolerable, even when it is undertaken as a part of attempting to secure the surrender of a murder suspect.
[SNIP]
The complaint charged Pautler with violating Colo. RPC 8.4: "It is professional misconduct for a lawyer to: . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation." This rule and its commentary are devoid of any exception.
[SNIP]
Thus, in Reichman, we rejected the same defense to Rule 8.4(c) that Pautler asserts here. We ruled that even a noble motive does not warrant departure from the Rules of Professional Conduct. Moreover, we applied the prohibition against deception a fortiori to prosecutors:
District attorneys in Colorado owe a very high duty to the public because they are governmental officials holding constitutionally created offices. This court has spoken out strongly against misconduct by public officials who are lawyers. The respondent&#8217;s responsibility to enforce the laws in his judicial district grants him no license to ignore those laws or the Code of Professional Responsibility.
[SNIP]
Hence, Reichman unambiguously directs that prosecutors cannot involve themselves in deception, even with selfless motives, lest they run afoul of Rule 8.4(c).
[SNIP]
The level of ethical standards to which our profession holds all attorneys, especially prosecutors, leaves no room for deceiving Neal in this manner. Pautler cannot compromise his integrity, and that of our profession, irrespective of the cause.
[SNIP]
The Rules of Professional Conduct apply to anyone licensed to practice law in Colorado. See In re C de Baca, 11 P.3d 426, 429-30 (Colo. 2000) (ruling that lawyers must adhere to the Rules of Professional Conduct even when suspended from the practice of law). The Rules speak to the "role" of attorneys in society; however, we do not understand such language as permitting attorneys to move in and out of ethical obligations according to their daily activities.
[SNIP]
&#8230; we stand resolute against any suggestion that licensed attorneys in our state may deceive or lie or misrepresent, regardless of their reasons for doing so.
[SNIP]
This sanction reaffirms for all attorneys, as well as the public, that purposeful deception by lawyers is unethical and will not go unpunished.
http://www.cobar.org/opinions/opinion.cfm?opinionid=627

 

[Anti-K]

I do agree that there is lax oversight of prosecutors. Common ground on lax oversight!

If I understand you correctly your view is that slipshod oversight means attorneys will violate their Professional Rules of Conduct, and that it&#8217;s the norm that attorneys will lie to a suspect about evidence to entrap them. This seems like a question for the legal community about what the practice of law is in real life situations (as in interviewing suspects).

The subject matter I was focused on pertained to the Colorado Rules of Conduct and what the repercussions might be if they are violated. AFAIK, Colorado does not have specific rules releasing attorneys from the Professional Rules of Conduct whether it&#8217;s within an undercover sting operation (Reichman), whether it&#8217;s an attorney falsely claiming on the phone to be a public defender (Pautler) or whether it&#8217;s in an informal interview designed to entrap a suspect. It&#8217;s all under Professional Rules of Conduct 8.4.

A good discussion, AK, for reasons that may not be apparent to everyone here. We do indeed look at this from different viewpoints, and that describes much of the discussion on the forum. It seems as the evidence from the books written by detectives involved with the case and the evidence presented by attorneys in the interviews, cannot be &#8220;proven&#8221; here. Thus, all we are left with, as Olivia1996 says, is the Ramseys&#8217; word on it all.

Yes, a very good discussion. It&#8217;s been nice. Thank you.

But, we have a small misunderstanding.

I don&#8217;t think that &#8220;slipshod oversight means attorneys WILL violate their Professional Rules of Conduct.&#8221;

My understanding is that the Professional Rules of Conduct do not properly address informal interviews, and that has given prosecutors engaged in informal interviews, as part of an investigatory process, some leeway. It isn&#8217;t that they WILL violate the rules, it&#8217;s that they CAN.

Also, I don&#8217;t think that &#8220;it&#8217;s the norm that attorneys will lie to a suspect about evidence to entrap them.&#8221; I think that it is the norm for investigators (Smit, Thomas, for example) to use deception during informal interviews for various reasons (&#8220;entrapment&#8221; COULD be one). IOWS, this is what generally happens during these sessions. So, if a prosecutor is leading, or supervising, or somehow participating in such an interview, than it is POSSIBLE that they might also engage in deception. Because, they can, and because this (deception) is what often occurs.
...

AK

 

[Anti-K]

Hey QFT,

The Pautler case you presented illustrates your point unambiguously as to the legal landscape in Colorado.
If you put it all together, it shows that regardless of the setting and motive (and even when an attorney is under license suspension) adherence to RPC 8.4 is demanded.

Purposeful deception by an attorney licensed in our state is intolerable, even when it is undertaken as a part of attempting to secure the surrender of a murder suspect.
[SNIP]
The complaint charged Pautler with violating Colo. RPC 8.4: "It is professional misconduct for a lawyer to: . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation." This rule and its commentary are devoid of any exception.
[SNIP]
Thus, in Reichman, we rejected the same defense to Rule 8.4(c) that Pautler asserts here. We ruled that even a noble motive does not warrant departure from the Rules of Professional Conduct. Moreover, we applied the prohibition against deception a fortiori to prosecutors:
District attorneys in Colorado owe a very high duty to the public because they are governmental officials holding constitutionally created offices. This court has spoken out strongly against misconduct by public officials who are lawyers. The respondent&#8217;s responsibility to enforce the laws in his judicial district grants him no license to ignore those laws or the Code of Professional Responsibility.
[SNIP]
Hence, Reichman unambiguously directs that prosecutors cannot involve themselves in deception, even with selfless motives, lest they run afoul of Rule 8.4(c).
[SNIP]
The level of ethical standards to which our profession holds all attorneys, especially prosecutors, leaves no room for deceiving Neal in this manner. Pautler cannot compromise his integrity, and that of our profession, irrespective of the cause.
[SNIP]
The Rules of Professional Conduct apply to anyone licensed to practice law in Colorado. See In re C de Baca, 11 P.3d 426, 429-30 (Colo. 2000) (ruling that lawyers must adhere to the Rules of Professional Conduct even when suspended from the practice of law). The Rules speak to the "role" of attorneys in society; however, we do not understand such language as permitting attorneys to move in and out of ethical obligations according to their daily activities.
[SNIP]
&#8230; we stand resolute against any suggestion that licensed attorneys in our state may deceive or lie or misrepresent, regardless of their reasons for doing so.
[SNIP]
This sanction reaffirms for all attorneys, as well as the public, that purposeful deception by lawyers is unethical and will not go unpunished.
http://www.cobar.org/opinions/opinion.cfm?opinionid=627

I&#8217;m only going by what was written in the paper being discussed. http://tinyurl.com/bpvd2d4

If this paper is to be believed, &#8220;The cases that do address prosecutorial deceit make it clear that, regardless of what the Colorado authorities may have said in Pautler, the context of the perpetrated deceit does count. 26&#8221;

It states that, &#8220;There are two main lines of case law dealing with prosecutorial deceit. The cases that find deceit impermissible are those in which prosecutors deceive the courts in some way, while the cases which find deceit permissible deal with prosecutors instructing law enforcement officers to use deceit during investigations.&#8221;

That seems pretty clearly stated.

Paulter, Reichman, etc all fit into the former category: &#8220;cases that find deceit impermissible&#8221; because they &#8220;deceive the courts in some way.&#8221; They can&#8217;t do that, regardless of motive. Not even to &#8220;secure the surrender of a murder suspect.&#8221;
This is not what is being discussed. Paulter, Reichman, etc are beside the point.

If this paper is right, &#8220;Authorities, however, have not tended to question prosecutors' use of out-of-court misrepresentations during investigations. 138 Disciplinary authorities have allowed prosecutors to supervise and direct investigations involving deceit. 39 Law enforcement officers regularly deceive suspects; it is considered an accepted investigative technique. 4 Disciplining an attorney for supervising these investigatory practices would encumber meaningful investigations, so courts have determined that public policy favors deception over unchecked lawlessness and have given prosecutors discretion in directing investigations. 141&#8221;
.

This is what happens, sometimes. You have your rules and regulations. Sometimes they&#8217;re challenged, and sometimes, as a result, the interpretation of the rule changes. If we are to believe this paper, this is pretty much what has been happening. Because, apparently, &#8220;courts have determined that public policy favors deception over unchecked lawlessness and have given prosecutors discretion in directing investigations. 141&#8221;
...

AK