g. ben cohen law offices 636 baronne street orleans ......feb 03, 2012  · baton rouge, louisiana...

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G. Ben Cohen Law Offices 

636 Baronne Street New Orleans, Louisiana 70113 

504­529­5955  The Honorable Charles Plattsmier, Chief Disciplinary Counsel, OFFICE OF DISCIPLINARY COUNSEL 4000 S. Sherwood Forest Blvd., Suite 607 Baton Rouge, Louisiana 70816 In Re Assistant District Attorney Eusi Phillips and District Attorney Leon Cannizzaro Dear Mr. Plattsmier, Per my ethical obligations to report actions that appear to violate the Rules of Professional Conduct, I direct the following letter to your office.1 As noted throughout the letter, I am unable to discern whether the misconduct herein was attributable solely to Assistant District Attorney Eusi Philips prosecuting the case, or whether District Attorney Leon Cannizzaro was both personally responsible as well as responsible in his supervisory capacity. The Rules of Professional Conduct at issue are:

RULE 3.8. SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows, or reasonably should know, either tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

1 I was initially informed by Assistant District Attorney Robert Freeman, that the District Attorney would refer Mr. Eusi Phillips to this office for reprimand. I am unaware whether this has occurred.

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. . .

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

With respect to The Honorable Leon Cannizzaro, the Rules at issue are:

RULE 5.1. RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

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I am attaching the pleadings and exhibits attached thereto, filed in the Tucker prosecution. In addition, I am attaching copies of the Gambit interview with District Attorney Cannizzaro and the Letter to the Editor written by District Attorney Cannizzaro.2 As you will see, after a series of mistrials,3 the State secured a conviction and life sentence against Mr. Tucker based upon the testimony of two incarcerated witnesses (Morris Greene and Joseph Allen). Both witnesses denied that they were offered any leniency or had any expectation of leniency in exchange for their testimony.4 Documents discovered after trial make clear that both witnesses received considerable leniency in exchange for their testimony. Moreover, documents discovered after trial indicate that both Mr. Cannizzaro and Mr. Philips engaged in an effort to provide leniency to these witnesses. Mr. Tucker’s counsel filed an extraordinary Motion for New Trial based upon the post-trial discovery of this information. Mr. Cannizzaro was subpoenaed to testify concerning his actions taken on behalf of one of these witnesses.

To their credit, on the eve of the evidentiary hearing on the extraordinary Motion for New Trial, Assistant District Attorneys Robert Freeman and Donna Andrieu provided the defense with letters written by one of the witnesses (Morris Greene) before trial that indicated that Greene was expecting leniency and reflecting that the Assistant District Attorney Philips knew that Greene was committing perjury when he testified that he had no expectation of benefit from his testimony. Upon disclosure of these letters, the District Attorney also laudably conceded error prior to the hearing on Mr. Tucker’s Supplemental Motion for New Trial.

2 Apparently, the Times Picayune only printed an excerpt of the letter to the editor written by Mr. Cannizzaro. Undersigned suggests that the Office of Disciplinary Counsel review the entire letter sent to the editor when assessing the propriety of the statements made therein.

3 Relevantly, the first mistrial occurred because then Assistant District Attorney Mr. Phillips refused to turn over the rap sheet for its key witness, in spite of multiple court orders directing it to do so. Contempt proceedings were initiated as a result of this action.

4 Because the prosecution conceded error prior to the evidentiary hearing, Mr. Cannizzaro’s personal involvement in the conduct giving rise to a Brady violation remains unknown. Transcripts attached to the Supplemental Motion for New Trial, however, indicate that Mr. Cannizzaro played a personal role in securing leniency for at least one of the two key witnesses.

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Nevertheless, District Attorney Cannizzaro ratified Mr. Phillips’ conduct by making specific statements in the media that were either factually inaccurate or misleading to the public concerning the case, including writing a Letter to the Editor in which he asserted that all favorable evidence had been turned over to the defense, and giving a lengthy interview in the Gambit, in which he made the same assertion. Because the State has elected to prosecute Mr. Tucker a fourth time for Second Degree Murder, Mr. Cannizzaro’s false statements continue to have a deleterious impact on Mr. Tucker’s right to a fair trial, and to fair adjudicative proceedings. As the State’s concession ultimately made clear, Assistant District Attorneys Eusi Phillips unlawfully concealed material exculpatory evidence and elicited false testimony. In doing so, he breached the Louisiana Rules of Professional Conduct. Because the prosecutor’s duty is to seek justice, and not merely to represent one side in an adversarial proceeding, the Louisiana Rules of Professional Conduct impose special ethical obligations upon prosecutors. A prosecutor “shall … make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows, or reasonably should know, either tends to negate the guilt of the accused or mitigates the offense.”5 This rule embodies and expands the United States Constitution’s requirement that prosecutors must disclose material exculpatory evidence to the defense.6 More generally, Louisiana rules prohibit all lawyers from “unlawfully obstruct[ing] another party’s access to evidence.”7

5 La. R. Prof’l Conduct 3.8(d) (emphasis added).

6 Brady v. Maryland, 373 U.S. 83 (1963). The American Bar Association, whose Model Rule 3.8 forms the basis for Louisiana Rule 3.8, has explained that the Rule goes much further than Brady. Rule 3.8 compels the disclosure of not just material exculpatory evidence, but all evidence favorable to the defense, “so that the defense can decide on its utility.” ABA Standing Comm. on Ethics and Prof’l Responsibility, Formal Op. 09-454 (2009).

7 La. R. Prof’l Conduct 3.4(a).

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Every Louisiana lawyer is also prohibited from “offer[ing] evidence that the lawyer knows to be false.”8 If a lawyer has called a witness and later comes to know that the witness offered false material testimony, the lawyer is obligated to take “reasonable remedial measures” to correct the falsehood.9 Similarly, Louisiana rules prohibit any lawyer from “assist[ing] a witness to testify falsely.”10 Mr. Phillips disregarded the special responsibilities that the rules impose upon prosecutors to act as seekers of justice and keepers of the public trust. As the Louisiana Supreme Court has acknowledged, “prosecutors are in a unique position from other members of the bar as they are immune from civil liability” and are not “realistically subject to criminal sanctions.”11 Indeed, in holding earlier this year that prosecutors are immune from civil liability for most constitutional violations,12 the United States Supreme Court emphasized the importance of other means to hold prosecutors accountable. Like all attorneys, the Court noted, prosecutors “are personally subject to an ethical regime designed to reinforce the profession’s standards.”13 If prosecutors violate those standards, they should be “subject to professional discipline, including sanctions, suspension, and disbarment.”14 Mr. Cannizzaro had supervisory responsibility for Mr. Phillips, and failed to ensure that he complied with the Rules of Professional Conduct, and ultimately ratified the conduct of Mr. Phillips.15

8 La. R. Prof’l Conduct 3.3(a)(3).

9 Id.

10 La. R. Prof’l Conduct 3.4(b).

11 In re Jordan, 913 So.2d 775, 783 (La. 2006).

12 Connick v. Thompson, 131 S. Ct. 1350 (2011).

13 Id. at 1362.

14 Id. at 1363.

15 La. R. Prof’l Conduct 5.1.

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I trust that your office is in the best (or perhaps in the sole) position to determine the full and complete circumstances of the conduct that occurred, and regardless of the outcome of the criminal proceedings, or the culpability of Mr. Tucker, ensure compliance with the Rules of Professional Conduct.

Sincerely,

G. Ben Cohen

List of Attachments

1. Supplemental Motion for New Trial, State of Louisiana v. Jamaal Tucker, Case No. 482-303-G (filed October 7, 2011).

2. Leon A. Cannizzaro, Jr., N.O. Prosecutors Don’t Hide Evidence, DA Says:

Letter, TIMES-PICAYUNE, Nov. 27, 2011. 3. Kevin Allman and Clancy DuBos, The Gambit Interview: Leon

Cannizzaro, THE GAMBIT, Dec. 6, 2011.

4. March 15, 2010 Letter from Morris Greene to Assistant District Attorney Eusi Phillips, disclosed December 12, 2011.