CA4: Criminal defense lawyer admonished for false assertions of fact in trial court and on appeal
12/03/11
CA4: Criminal defense lawyer admonished for false assertions of fact in trial court and on appeal
A lawyer was publicly admonished, inter alia, (1) for misquoting the record to make two distinct passages seem as one, (2) filing a declaration that supported a potential alibi for the client such that he was potentially a witness and then failed to correct it after the client retracted it, and (3) impugning the district judge’s integrity when arguing against the factfinding. In re Liotti, 10-9504 (4th Cir. December 2, 2011):
Consistent with the foregoing, we are satisfied that the factual allegations in the Notice regarding misrepresentations to the Court are supported by clear and convincing evidence. More specifically, Mr. Liotti made misrepresentations to the Court, in contravention of Rule 8.4 of the New York Rules, which provides, in pertinent part, that a lawyer shall not "engage in conduct involving ... misrepresentation[s]." Liotti’s misrepresentations in the Giannone appeal encompass the following:
• Presenting two unrelated portions of a trial transcript as a single conversation;
• Incorrectly contending that the government had purposefully overestimated the length of Giannone’s trial;
• Inappropriately alleging, without factual support, that two agents involved in Giannone’s investigation had been fired for misconduct;
• Failing to disclose to the court Giannone’s admission that the internet chat had been faked;
• Relying on the Declaration to support the legitimacy of an internet chat of which he had no personal knowledge; and
• Alleging, without factual support, that the presiding judge had suppressed evidence relating to Giannone’s trial.Because Mr. Liotti’s conduct during the Giannone appeal violated the New York Rules, it also contravened the Local Rules. See Local Rules App. P. 46(g)(1)(c).
IV.
As we have heretofore recognized, "our adversary system depends on a most jealous safeguarding of truth and candor." United States v. Shaffer Equip. Co., 11 F.3d 450, 463 (4th Cir. 1993). One of the most important aspects of the work of an appellate lawyer is the obligation to provide the court with a fair and accurate presentation of the relevant facts. Indeed, many of our colleagues on the bench would characterize that obligation as paramount, and there is no valid reason for any lawyer to do otherwise. As John Adams explained in his successful defense of the British soldiers charged in the Boston Massacre, "facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." David McCullough, John Adams 52 (Simon & Schuster 2001). Our good colleague Judge Niemeyer, writing for the Court in Shaffer Equipment, emphasized the importance of an accurate presentation of the pertinent facts, aptly relating:Our adversary system for the resolution of disputes rests on the unshakable foundation that truth is the object of the system’s process which is designed for the purpose of dispensing justice. ... Even the slightest accommodation of deceit or a lack of candor in any material respect quickly erodes the validity of the process.
11 F.3d at 457. Misrepresentations of fact by an officer of the court will, if ignored, cast a menacing shadow on a judicial system that is designed to illuminate truth and promote fairness.
He profusely apologized and said it was bad judgment and there was no bad intent, which the court credits, and still finds it "misconduct" enough for an admonishment.
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the law."
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born to do our unpleasant jobs for us. Your father is one of them."
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"The very premise of our adversary system of criminal justice is that partisan
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the guilty be convicted and the innocent go free."
—Herring v. New York, 422 U.S. 853, 862 (1975)
"The right to the effective assistance of counsel is thus the right of the
accused to require the prosecution's case to survive the crucible of meaningful
adversarial testing. When a true adversarial criminal trial has been conducted
... the kind of testing envisioned by the Sixth Amendment has occurred. But
if the process loses its character as a confrontation between adversaries, the
constitutional guarantee is violated."
—United States v. Cronic, 466 U.S. 648, 655-56 (1984)
"The only real lawyers are trial lawyers, and trial lawyers try cases to juries."
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"The right to offer the testimony of witnesses, and to compel their attendance,
if necessary, is in plain terms the right to present a defense, the right to
present the defendant's version of the facts as well as the prosecution's to
the jury so it may decide where the truth lies. Just as an accused has the right
to confront the prosecution's witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to establish a defense.
This right is a fundamental element of due process of law."
—Washington v. Texas, 388 U.S. 14, 19 (1967)
"[T]he Constitution guarantees criminal defendants 'a meaningful opportunity
to present a complete defense.'"
—Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting
California v. Trombetta, 467 U.S. 479, 485 (1984)).
"[O]ur so-called adversary system is not adversary at all; nor should it be.
But defense counsel has no comparable obligation to ascertain or present the
truth. Our system assigns him a different mission. He must be and is interested
in preventing the conviction of the innocent, but, absent a voluntary plea of
guilty, we also insist that he defend his client whether he is innocent or guilty.
... [A]s part of our modified adversary system and as part of the duty imposed
on the most honorable defense counsel, we countenance or require conduct which
in many instances has little, if any, relation to the search for truth."
—Justice White concurring and dissenting in U.S. v. Wade, 388 U.S. 218, 256-58 (1967)
We, as criminal defense lawyers, are forced to deal with some of the lowest
people on earth, people who have no sense of right and wrong, people who will
lie in court to get what they want, people who do not care who gets hurt in
the process. It is our job–our sworn duty–as criminal defense lawyers,
to protect our clients from those people.
—Cynthia Roseberry
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