Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

“Oh, what a tangled web we weave…”

One of the most famous quotations in English poetry comes from Walter Scott’s 1808 epic poem, Marmion: A Tale of Flodden Field — “Oh, what a tangled web we weave, When first we practice to deceive!” This quote may be an old platitude, but it still rings true today and was aptly illustrated in People v. Uribe (2011) 199 Cal.App.4th 836, a 2006 Santa Clara County sexual assault case.

After a jury convicted Uribe, his trial counsel discovered the existence of a video tape of the victim’s physical examination that had been retained by medical center personnel. Uribe brought a motion for new trial based on the video but it was denied. On appeal, the court reversed Uribe's conviction, holding that the prosecution’s failure to provide the defense with the video deprived Uribe of a fair trial in violation of Brady v. Maryland (1963) 373 U.S. 83 [setting forth the prosecution’s duty to provide a criminal defendant with material favorable evidence regardless of whether it is requested by defendant].

After the case was remanded for a new trial, Uribe filed motions to dismiss the case and alternatively to recuse the prosecutor’s office claiming the prosecution conspired with the medical center to conceal SART videos, including the one in Uribe’s case, for many years. The trial court held an extended evidentiary hearing to determine whether either of the remedies were warranted and did not find evidence to support a conspiracy to conceal evidence. But it did dismiss the case after finding that the trial prosecutor had attempted to obtain false declarations from defense counsel and the trial judge in an effort to corroborate his version of events, mislead the trial court, and testified falsely at the evidentiary hearing. On the subsequent appeal filed by the government, the court found that the trial court’s factual findings about the prosecutor were supported by substantial evidence but reversed the trial court’s order dismissing the case.

The appellate court’s analysis about why dismissal was inappropriate is not what is so striking about Uribe; rather it is the senselessness of the deceptive actions taken by prosecutor in an attempt to avoid the appearance that the “Brady violation” was intentional. His cover up was unnecessary since a “Brady violation” does not require an intentional act. In fact, “Brady violations” can sometimes be unavoidable since prosecutors are imputed to know what is in the possession of the “prosecution team,” even when it encompasses outside, non-governmental entities like medical center personnel. Interestingly, even after the lengthy evidentiary hearing, it still remained unclear whether the prosecutor intentionally suppressed the video. But, it didn’t make a real difference because it was a Brady violation regardless of how it happened — the prosecutor was in deep water whether the violation was intentional or not.

Uribe is particularly disappointing and tragic because the prosecutor only made matters worse for himself professionally than if he had come clean about whatever intentional, negligent, or incompetent decision he had made about the video in the first instance. Had he been forthright, the “Brady violation” would be rectified with a new trial and he likely would keep his license to practice law.  Instead, the prosecutor, at the very least, violated his duty of candor to the court embodied in California rule of Professional Conduct 5-200 and Business and Professions Code section 6068 (d), and apparently committed perjury — all of which, in combination, could very well prevent the prosecutor from practicing law in the future. As difficult as it may be, admitting prosecutorial error and taking one’s lumps for that error is a far more advantageous road to take than getting tangled up in one’s own web of deceit.

Bryn Kirvin is a Deputy District Attorney for the County of San Diego, and a member of the SDCBA Legal Ethics Committee.

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**