Roanoke, VIRGINIA – United States Attorney for the Western District of Virginia Rick A. Mountcastle, Assistant United States Attorney and Professional Responsibility Officer Michael Moore from the Eastern District of Virginia, and a delegation from the Virginia Association of Commonwealth’s Attorneys, consisting of Greensville County/City of Emporia Commonwealth’s Attorney Patricia T. Watson, Virginia Beach Commonwealth’s Attorney Colin Stolle, Arlington County/City of Falls Church Commonwealth’s Attorney Theophani K. Stamos, and Suffolk City Commonwealth’s Attorney C. Phillips Ferguson appeared before the ethics committee of the Virginia State Bar this morning to deliver remarks in opposition of the proposed VSB Legal Ethics Opinion 1888 [VSB LEO 1888].
U.S. Attorney Mountcastle’s remarks as prepared for delivery:
Good morning ladies and gentlemen. My name is Rick Mountcastle and I’m the United States Attorney for the Western District of Virginia. I’m here with my colleague from the United States Attorney’s Office for the Eastern District of Virginia Assistant United States Attorney and Professional Responsibility Officer Mike Moore. It’s my privilege to address you this morning on behalf of the United States Department of Justice and the two United States Attorney’s Office’s in Virginia about proposed Legal Ethics Opinion 1888.
After a careful review of the hypothetical facts, the analysis, and the proposed Opinion, as well as the applicable legal authorities, we respectfully request that you withdraw the proposed Opinion for the reasons set forth in our November 2, 2017 letter, as well as the many other reasons articulated by the Virginia Association of Commonwealth’s Attorneys and others. I don’t want to repeat our written comments and I’m certain the Bar will give those comments careful consideration.
I do want to emphasize a couple of points this morning. First, the Department of Justice and the United States Attorney’s Offices take very seriously the requirement that our prosecutors comply with their discovery and disclosure obligations. We expend considerable resources to ensure compliance with the Department’s mandate that we make broad disclosures of potentially exculpatory and impeaching material as required by the statutes, rules, and case law. Further, we agree that prosecutors must not willfully and intentionally attempt to conceal exculpatory and impeaching evidence by hiding it within voluminous materials.
The proposed Opinion, however, does not provide clear guidance about this requirement but, instead, creates confusion. As discussed in our written comments, the underlying hypothetical facts are so oversimplified that the proposed Opinion will apply to virtually none of the cases actually handled by federal and state prosecutors on a daily basis. Every case will be different because every one of them will have more factual context than the facts set forth in the proposed Opinion. We’ve listed some of the important factual context at page two of our letter and I’d like to add another very important factor to that list: the tone of voice and inflexion of the defendant and the victim during the phone call. As described in our letter, the factual context of each case is critical to a determination of whether a piece of evidence like the nine-word phone call “tends to negate guilt” as opposed to being inculpatory or merely ambiguous; it’s critical to a determination of whether the prosecutor “knows” that it “tends to negate guilt” when an equally fair reading based on all of the facts is that it’s inculpatory or ambiguous, and only defense counsel knows what material falls within the defense theory of the case; and it’s critical to a determination of whether producing it as a part of 200 hours of calls constitutes knowing and intentional concealment when the law only requires disclosure and the defendant knows about it or it’s readily identifiable from an index.
The substantial disparity between the hypothetical facts underlying the proposed Opinion, and the facts of the cases we actually prosecute will inevitably create the type of confusion described in our comments and in the comments of the Commonwealth’s Attorneys. In our view, the proposed Opinion provides no meaningful guidance to the prosecutor because every case he or she prosecutes will be significantly different from the bare bones facts of the hypothetical. At the same time, it’s likely that defense counsel, in zealously representing their clients, will argue that the proposed Opinion should apply to cases that have no factual similarity. As a result, the proposed Opinion, while providing no meaningful guidance, will simply cause collateral litigation distracting the courts and litigants from administering justice in criminal cases.
For these reasons and the other reasons stated in our letter, we respectfully request that the proposed Opinion be withdrawn. Thank you for this morning’s opportunity to provide additional comment.
End of Prepared Remarks
In addition to the remarks delivered this morning, the United States Attorneys and the Virginia Association of Commonwealth’s Attorneys previously sent the ethics committee letters objecting to VSB LEO 1888.
