12 June 2019

What Happens When A DA Commits Lots Of Brady Violations?

One of the dirty little secrets of the American criminal justice system is that when a prosecuting attorney violates his or her ethical duty to disclose all evidence that potentially exonerates a criminal defendant to the defendant's lawyer, often causing a wrongful conviction for a crime, the attorney rarely suffers any consequence for the lapse even though a court of law in the criminal case found that the attorney violated this ethical duty. 

A DA in rural Southern Colorado, Francis Ruybalid, didn't just violate this duty. He violated in more than 150 different cases, resulting in 15 of those convictions including convictions for child abuse, domestic violence and murder being thrown out.

What consequences did this DA suffer? 

He resigned as DA, and in exchange for admitting to more than 24 ethical violations, his law license was placed on probation. The Colorado Supreme Court, in a case of first impression, denied him reimbursement for the $223,000 of attorneys fees and litigation costs that he incurred defending himself against the ethics charges, because they involved reckless or knowing conduct which the Court held was not within the scope of his official duties as a DA.

Additional details and a photograph can be found in an article at the Colorado Sun.

Then, this bad lawyer became someone else's problem. He was hired by the state of New Mexico to be an attorney for the Children, Youth & Families Department, where he will presumably be charged with bringing lawsuits on behalf of the state to terminate the parental rights of parents whom investigators believe have committed serious child abuse and neglect. 

So, he was out $223,000 and he had to move and take a new job with what was probably a modest pay cut and a huge drop in authority and prestige from head of a District Attorneys' office for more than one county supervising other prosecutors, to a job as a rank and file lawyer handling individual cases and probably having no more supervisory authority than he might share with other lawyers and managers in the department over a secretary, paralegal and the investigators involved in particular child abuse and neglect cases. He could conceivably also be called upon to handle juvie jail discipline cases and probation revocation cases for juveniles sentenced after committing crimes as minors.

He didn't lose his license to practice law or even have it briefly suspended. New Mexico didn't decline to let him have a law licenses as a result and he probably received reciprocity in admissions to the practice of law in New Mexico despite his disciplinary record. 

And, because prosecutors have "absolute immunity" for their judicial system conduct (although not for investigative matters), none of the criminal defendants who received unjust punishment because exculpatory evidence was withheld, and none of the victims who had crimes committed against them go unpunished because the DA screwed up can sue him. Some of those unpunished criminals are on the streets and may commit further crimes as a result. On the other hand, even if he could have been sued by the injured parties, realistically, he was probably virtually judgment proof once he had paid his lawyers (who are probably going to get stiffed for some part of his legal bill themselves).

It is worth noting, however, that if a DA isn't entitled to indemnification from the County for this conduct because it didn't fall within his official duties, perhaps his absolute immunity from civil liability for his official conduct in judicial proceedings (as opposed to investigative proceeding where the immunity is merely "qualified") doesn't apply either. There are lots of cases in other jurisdictions that hold that Brady violations do not impair a DA's absolute immunity, but those cases, unlike future cases in Colorado, would not have had the foundation of this case defining in advance the scope of an attorney's official actions, upon which to build a case. 

The resulting rule, which would allow District Attorneys to be sued only when they had been adjudicated to have committed ethical violations in a manner that was outside the DA's officials duties, would actually be a very management and reasonable way to balance the need to limit collateral litigation against prosecuting attorneys by convicted criminals, while remedying legitimate wrongs where liability is basically established independently before the case begins. The same rule could even be applied to judges who generally have absolute immunity.

So, all in all, while this bad lawyer's ethical violations, unlike so many prosecutors who commit similar violations (although rarely so pervasively) did have quite meaningful consequences, they weren't all that severe either in proportion to the harm he did.

Now, in his defense, this incident arguably looks like a classic case of the Peter Principle, "which observes that people in a hierarchy tend to rise to their "level of incompetence". In other words, an employee is promoted based on their success in previous jobs until they reach a level at which they are no longer competent, as skills in one job do not necessarily translate to another." 

As a lawyer its his job to know how to do that and get it done, and if he didn't know that he wasn't getting that part of his job done, he should have known. So it really wasn't as he argued in Court, mere negligence (although the Court could very easily have reached the opposite conclusion and found that while he did his job unethically that he was still doing his job). More likely, he wasn't confident enough to make the waves and direct people in a manner to make sure that this bureaucratically very cumbersome obligation was fulfilled.

Basically, it is certainly possible that he was competent enough to do the job of a junior prosecutor, but once he was elected to be the DA, everyone discovered that he was an incompetent manager whose failure to establish proper office procedures, which was his job, led to widespread and systemic violations of the constitutional rights of criminal defendants. So, perhaps, now that he has returned to his previous more humble level of responsibility, he may do just fine.

Also, assistant district attorneys in Southern Colorado are hardly the best paid attorneys admitted to the bar. According to Zip Recruiter:
[A]s of Jun 5, 2019, the average annual pay for an Assistant District Attorney in Colorado is $65,363 a year. While ZipRecruiter is seeing annual salaries as high as $84,284 and as low as $47,825, the majority of Assistant District Attorney salaries currently range between $53,033 (25th percentile) to $79,549 (75th percentile) in Colorado.
The high is probably in the Second Judicial District which is Denver, which has a high cost of living. The Third Judicial District probably has below average pay for its assistant district attorneys' overall, although this would have been balanced out somewhat by seniority. Still, it is safe to say that immediately before being elected DA, Francis Ruybalid was probably earning $75,000 a year or less, and he would have made less in the earlier years of his career. This is enough to live comfortably in rural Southern Colorado, but it almost means that paying for $223,000 of legal fees out of his own pocket probably wipes out a very large share of his entire net worth.

Since this is a contactual debt owed to his attorneys to the extent it hasn't already been paid, it can surely be discharged in bankruptcy, but bankruptcy may very well be in his future if he can't work out a payment plan for any unpaid balances with his ethics defense lawyers who still, at least, left him employable.


neo said...


since you're a liberal democrat, would you like to live in a democrat run city and state say inner city of Chicago Illinois, why or why not?

on the one hand Illinois Governor signed abortion rights into law, which i agree with, and elected a lesbian liberal democrat mayor for chicago, on the other hand the taxes, pension and crime in that state is through the rough, and democrats have been in charge.

suppose liberal democrats turn your state, colorado, into a debt ridden Illinois, and your city, into the inner city of Chicago, would you be pleased with the consequences of your ideology?

andrew said...

First of all, both Denver and Chicago are Democrat run cities and Democrat run states. And, yes, I would far prefer to live in Chicago to many other places in the world. Indeed, I got engaged to my wife while she was living in inner city Chicago, my middle name is the name of one of my mother's teachers when my parents lived there for several years (in Hyde Park, which outside the University of Chicago remains a very "bad neighborhood" although it was worse in the early 1990s at the peak of the recent nationwide violent crime wave when I visited while college touring), and I recently spent several days with a cousin who lives there while my wife ran the Chicago half-marathon last fall. I've been there on business more than once as well over the years, and visited frequently growing up.

Chicago would be in my top ten list of places to live although perhaps not at the very top. If it was #1 I'd probably have chosen to live there and I didn't.

The taxes there are integral to its success. There isn't a single place in the U.S. that doesn't have a diversified broad based economic base that is successful that is also at the bottom of the list in terms of tax burdens, and there is nothing unjust about it. California and New York are among the post productive and economically healthy states in the Union and have high taxes. Minnesota saw a surge in economic growth and quality of life when it increased taxes. Low taxes pretty much destroyed the socio-economic fabric of Kansas. Likewise, localities that refuse to incur debt to invest in themselves (Weld County, Colorado whose county seat is Greeley, Colorado comes to mind) tend to stagnate.

Chicago could manage crime better than it does and more decisive (but intelligent) action is in order. There are absolutely too many shootings in Chicago. But, unless you spend some time there you don't have a feel for how vast Chicago is as a city to put that into context. Part of the problem is that it is hamstrung by national policies and laws that limit its ability to regulate guns and has been slow to discontinue the war on drugs. On the whole, red states have higher rates of violent crime than blue states and that is true of both whites and non-whites in those states.

andrew said...

Almost everywhere murders take place more often in city centers than in the suburbs although the difference isn't as pronounced as it used to be as we are in the process of an inversion of wealth with more affluent people returning to central cities (which is where they have lived for most of history) and the less affluent migrating to suburbs and exurbs (which is the historical norm despite an interruption starting around the time that the interstate highways were built and street care systems were dismantled in the 1950s, with the turnaround starting perhaps sometime in the 1990s). Chicago is somewhat lagging behind its peers on that measure, although not by very far.

We do know that high crime rates do not have to be permanent. For example, NYC was once a murder-capitol of the nation and is now among the safest cities in the nation. Denver once had much higher crime rates and so did San Francisco and Los Angeles and Washington D.C. Welcoming immigrants is one of the best way to reduce crime, empirically speaking, something that has been a particular success in Saint Louis, Missouri, and in other cities (like Minneapolis, NYC, DC, San Fran and LA) which have seen declining crime rates.

I'm not quite sure what you see as the issue with pensions in Chicago or in Illinois that is particularly different than anyplace else. Defined benefit pension plans in the public and private sectors alike tend to be underfunded and that isn't good. But, it is just as much an issue with Chrysler-Fiat as it is with Oklahoma or Kansas, as it is with Illinois and Colorado. All of this has secondary personal relevance to me and my family as we are self-employed and have been for a very long time, so we don't have defined benefit pension plans. The health of a pension system largely depends on the quality of the work done by its actuaries, and the quality of its investment decisions, neither of which are particularly partisan issues. Pension health largely boils down to a most non-partisan question of who almost as a matter of random chance, had better or inferior pension managers over the key years.

andrew said...

One of Chicago's main problems is that it is a Rust Belt city whose manufacturing base (some of which spills over into Gary, Indiana) has not yet hit bottom. This is in common with Milwaukee, Detroit, Baltimore, Pittsburg, Buffalo, St. Louis, Cleveland, Toledo, Youngstown, Flint, and other cities similarly situated which I've omitted.

Denver and the West Coast never had a heavy manufacturing base, so it didn't have one to lose and drag it down in the process. Transitioning from a manufacturing based economy to a diversified economy isn't easy and many places that have attempted to do so have failed. The decline of the U.S. manufacturing industry and its transition to a post-industrial economy is a complex issue, but the most important thing to keep in mind for purposes of your question is that it was almost entirely a product of national level policy decisions, not state and local decisions. Relatively conservative Wisconsin, for example, has not responded better to the long running economic obstacle than Minnesota, which was economically and demographically very similar to Wisconsin, but dealt with the decline of manufacturing more successfully. Increasingly conservative Ohio likewise did a very poor job of managing this decline.