What to do with an unethical prosecutor in Utah? Such a hard, difficult, vexing question. Not just because the courts are so very reluctant to hold a prosecutor accountable. They are, of course, because they would hate to make prosecutors feel the slightest bit skittish in protecting society from rapists and terrorists, but for a more legalish reason: It’s never happened before.
It is a question the Utah Supreme Court is pondering in the case of a former Davis County prosecutor. Whatever the ruling, it will break new ground in attorney-discipline issues — it being the first time the justices have weighed in on a case in which a prosecutor is accused of violating his or her special duties.
There isn’t any question that Larsen is a total unethical scumbag. That much is firmly established.
Larsen has been appealing a seven-month suspension of his law license. He was fired from his job as a Davis County prosecutor after alleged misconduct during a 2010 aggravated robbery trial in which he showed the robbery victims a photo of the defendant, but did not show them any other photos as part of a proper photo lineup. This was not disclosed to the defendant’s attorney, who asked for — and was granted — a mistrial when one victim testified that Larsen had shown her the single photo.
Is that it? Is that all he did? As in, it’s Tuesday at the District Attorney’s office? Why no. No it’s not.
The judge also ruled that another incident a year earlier, in which Larsen “made a false statement” to a judge about payments made by a defendant to a probation officer, warranted another 30-day suspension.
Now you may be scratching your head, wondering why making a false statement is such a big deal. After all, the same could be said of every prosecutor who announces “ready for trial” at arraignment, which is invariably false, everyone knows it, and yet it happens all the time. Or maybe the many judges who were made to play the fool when they were lied to about the use of Stingrays, and taught the joys of parallel construction. Why did these judges mimic bobbleheads rather than get even a tiny bit huffy?
Good questions all, but for whatever reason, Larsen sufficiently pissed off judges to get sanctioned.
All lawyers must follow a number of judicial rules of professional conduct, which detail their duties to their clients and the court.
Rule 3.8 outlines the “special responsibilities” of prosecutors in connection with their ability to file charges against members of the public.
Those responsibilities include not prosecuting unwarranted charges and making sure clients receive an opportunity to get their own lawyer. They also must disclose any facts favorable to the defendant — which is the part of the rule that former Deputy Davis County Attorney Tyler Larsen is accused of violating.
And for this, ignoring the minor detail that “all lawyers” is used in the loosest possible sense, Larsen was given a seven month suspension from the practice of law. This is too harsh, he tells the Utah Supreme Court. And then an additional 30-day suspension, consecutive? Too mean, too mean, Larsen adds.
“It’s hard for me to know what the appropriate sanction is without having more data as to how this may have been handled in other cases,” said Justice Thomas Lee, adding that it is important that the high court have consistency in its rulings.
And why is there no data, Judge?
During the arguments, some of the justices seemed perplexed as to a suitable penalty, given there had been no previous cases before them of an attorney violating Rule 3.8.
Rule 3.8 applies only to prosecutors, and never before has a prosecutor been sanctioned. Go figure. Notably, the maximum punishment available under the rule is a 3-year suspension. Compare this with the maximum a defendant could suffer from the prosecutor’s deceit and concealment, which is life. Nonetheless, Larsen, as well as the Utah bar counsel, didn’t see any big issue with this juxtaposition.
Both Larsen and the Utah Bar’s Office of Professional Conduct [OPC] attorney, Todd Wahlquist, told the justices that they were unaware of any other allegations of this kind before the state’s high court. Wahlquist said during the December arguments that he could not recall a time in the past four years when a prosecutor had even been screened for potential discipline by OPC.
Larsen and Wahlquist both argued that the seven-month suspension was inappropriate.*
But they weren’t the only ones to argue that a seven-month suspension was “inappropriate.”
And yet another party — the Utah Association of Criminal Defense Lawyers — weighed in on the case. In an amicus brief, UACDL Executive Director Kent Hart said the “presumptive sanction” should not be three years, but disbarment.
If a defense lawyer got nailed for lying to the court, chances are fair to middling that he would only see the inside of a courtroom again as a defendant. The worst possible sanction that could be imposed on a prosecutor for violating Rule 3.8 would be three years. Sweet.
Hart told The Salt Lake Tribune that UACDL is not specifically asking for Larsen to be disbarred, but is telling the justices that the sanctioning rules “are screwed up.”
You think? It’s not bad enough that the Utah Supreme Court is “perplexed” because it has no data to use as precedent for the proper punishment of a prosecutor. It could be that prosecutors in Utah are the most ethical, most wonderful, greatest guys ever. Or that prosecutors in Utah, like pretty much everywhere else, enjoy impunity for their wrongs because judges refuse to hold them accountable for their malfeasance.
So even if the UACDL lacks the fortitude to come out and say that Larsen is a total mutt who should never be allowed to practice law again, what is the proper punishment?
“A consecutive sentence seems punitive instead of reformatory or rehabilitative,” Larsen argued. “… It is an improper sanction.”
Well, that covers two of the five potential considerations. Anyone have any additional thoughts?
“We are concerned that the Bar’s OPC and the Supreme Court’s priorities are misplaced,” Hart said. “What kind of message does it communicate to the public that the State Bar values money over a person’s liberty?”
Welcome to the practice of law in the 21st Century. And the protection of prosecutors forever. Even if the UACDL won’t say it, I will. Want to stop prosecutors from playing hide the Brady? Want to stop prosecutors from lying to the court (forget defense counsel, since everybody lies to defense counsel)? Disbar the mutt. The word will get around.
*Wahlquist’s position was that Larsen deserved the full three year suspension, but that the additional 30-day consecutive suspension was excessive.