Amicus brief in Burt Newsome case shows courts are skeptical of release agreements in criminal cases because they can provide cover for police misconduct

Levin & Zeiger, Philadelphia

 

Part Four

The U.S. Supreme Court (SCOTUS) should review the conspiracy case aimed at Birmingham attorney Burt Newsome in order to declare that release and dismissal (R&D) agreements in criminal cases -- of the type present in the Newsome matter -- are unlawful when they foreclose all future civil liability for non-government actors, according to an amicus brief filed with the high court in support of Newsome's petition for certiorari.

Consejos de Latinos Unidos (CDLU), a non-profit, non-partisan national public charity based in Birmingham, filed the amicus brief on Newsome's behalf. The brief states that CDLU "has spurred three U.S. Congressional investigative hearings and numerous federal, state, and local probes. The CDLU fights unethical and unsavory businesses, inept government agencies, and corruption. CDLU educates the public about miscarriages of justice when government breaches the rule of law." Brian J. Zeiger, of the Philadelphia law firm Levin & Zeiger, prepared the amicus brief. (Full brief is embedded at the end of this post.) At the heart of Zeiger's argument are concerns about police misconduct, an issue right off the front pages of today's newspapers. But first, he notes that R&D agreements bastardize the role of a prosecutor in the American justice system. Writes Zeiger:

These (R&D) agreements offend core premises of basic fairness because they serve no public prosecutorial function, suppress valid civil claims against private parties, and impermissibly make the prosecutor have an interest in the outcome, in violation of both due process and professional ethical obligations. This case presents a good vehicle for this Court to condemn such agreements and stop authorities in Shelby County Alabama from exploiting this practice to the detriment of CDLU’s constituents. Further, this release dismissal order, was propped up to an unfiled draft order to vacating an expungement order that was never entered into the Alabama State Judicial Information System (SJIS) record.

A prosecutor holds a special position in our system of justice. “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). Thus, this Court has required that matters only be prosecuted by a “disinterested prosecutor.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987). But when a prosecutor considers private interests, he is not disinterested. “The Government’s interest is in dispassionate assessment of the propriety of criminal charges” but a “private party’s interest is in obtaining the benefits of the court’s order.” When a prosecutor has private interests as well, he “may be tempted to bring a tenuously supported prosecution if such a course promises financial or legal rewards for the private client. Conversely, a prosecutor may be tempted to abandon a meritorious prosecution if a settlement providing benefits to the private client is conditioned on a recommendation against criminal charges.”Id.

“In a case where a prosecutor represents an interested party, the ethics of the legal profession require that an interest other than the Government’s be taken into account. Given this inherent conflict in roles, there is no need to speculate whether the prosecutor will be subject to extraneous influence.” Id. Thus, a proceeding is inconsistent with “basic notion of fairness” if the prosecutor “represents an interested person” to the proceeding. Id. And such errors are structural, as it “is a fundamental premise of our society that the state wield its formidable criminal enforcement powers in a rigorously disinterested fashion, for liberty itself may be at stake in such matters.” Id. at 810. 

SCOTUS, Zeiger notes, never has approved of the widespread use of R&D agreements. How does police misconduct enter the picture? Zeiger explains:

Courts have long viewed release-dismissal practices with skepticism, if not outright hostility. For instance, in 1968 the D.C. Circuit ordered criminal charges over which it had supervisory powers dismissed in the D.C. Superior Court. See Dixon v. D.C., 394 F.2d 966 (D.C. Cir. 1968). In a concurring opinion, Chief Judge Bazelon explained that this dismissal was justified in part because of the prosecution’s abuse of a release-dismissal agreement, and the “need to prevent” such agreements from being used in future cases. See id. at 968. According to Chief Judge Bazelon:

"The major evil of these agreements is not that charges are sometimes dropped against people who probably should be prosecuted. Much more important, these agreements suppress complaints against police misconduct which should be thoroughly aired in a free society. And they tempt the prosecutor to trump up charges for use in bargaining for suppression of the complaint. The danger of concocted charges is particularly great because complaints against the police usually arise in connection with arrests for extremely vague offenses such as disorderly conduct or resisting arrest 

"Courts may not become the ‘enforcers’ of these odious agreements. We must therefore bar prosecutions which are brought because the defendant refused to promise or reneged on a promise not to file a complaint against the police. Prosecutors will then have no incentive to offer or make such agreements." Id. at 969-70. 

Other courts held similar views. In a later opinion, the Tenth Circuit described its 1984 case in Lusby v. T.G. & Y. Stores, 749 F.2d 1423 (10th Cir. 1984) as having “excoriated” the use of “releasedismissal agreement.” Hammond v. Bales, 843 F.2d 1320, 1322 (10th Cir. 1988). In another case, the Ninth Circuit strongly condemned such agreement, saying:

"It is no part of the proper duty of a prosecutor to use a criminal prosecution to forestall a civil proceeding by the defendant against policemen, even where the civil case arises from the events that are also the basis for the criminal charge. We do not mean that the prosecutor cannot present such a criminal charge. What he cannot do is condition a voluntary dismissal of a charge upon a stipulation by the defendant that is designed to forestall the latter’s civil case. The situation is made no better by the fact that here the record indicates that it was the court that asked [the criminal defendant] whether he would stipulate. Rather, it makes it worse. It brings the court to the aid of the prosecutor in coercing the defendant into agreeing to what amounts to a forfeiture of his civil rights. Nor can the prosecutor, because of failure to obtain the demanded stipulation, then introduce another charge in the hope of defeating the possible civil action of the defendant. MacDonald v. Musick, 425 F.2d 373, 375 (9th Cir. 1970). Indeed, the Ninth Circuit described release-dismissal agreements as criminal 'extortion.'” Id. at 376.

In Town of Newton v. Rumery, 480 U.S. 386 (1987), a case discussed at length in Newsome's certiorari petition, SCOTUS did not endorse release-dismissal agreements, but it did accept that they could serve some limited public interest. Courts, in general, have continued to hold  a dim view of R&D agreements. Writes Zeiger:

The Courts of Appeals have long demanded strict compliance with Rumery’s factors. Release dismissal agreements are not “presumptively valid”— quite the opposite. Coughlen v. Coots, 5 F.3d 970, 974 (6th Cir. 1993). Indeed, “these agreements should be scrutinized closely in cases where substantial evidence supports an allegation of police misconduct, in view of the potential for abuse of release-dismissal agreements by law enforcement officials.” Id. And, in every case, the prosecution must have “an independent, legitimate criminal justice objective” for the agreement. Id. But “[t]he potential for abuse of release-dismissal agreements has led the Supreme Court to urge the use of a critical eye when courts are asked to enforce them.” Gonzalez v. Kokot, 314 F.3d 311, 317 (7th Cir. 2002). . . . 

Although this Court has allowed limited use of release-dismissal agreements, individual jurisdictions have raised greater concerns. For instance, New York has adopted a very strong presumption against release-dismissal agreements. In Cowles v. Brownell, 538 N.E.2d 325, 327 (1989), the court found that these agreements were “no benefit, only a loss” to the criminal justice system. If the charges were not provable, the prosecutor had an ethical duty to dismiss them without extracting the price of a civil release. If the evidence was sufficient to gain a conviction, as the prosecutor maintained, then the dismissal of charges was contrary to the public interest in seeing a wrongdoer punished. Thus the release-dismissal agreement before the Court undermined “the legitimate interests of the criminal justice system solely to protect against civil liability; it surely does not foster public confidence that the justice system operates evenhandedly.” Id. 

Release-dismissal agreements are also unethical. As one commentator put it, “the ethics rules … prohibit a prosecutor from entering into a release-dismissal agreement,” because “there is a risk that is significant” “that the prosecutor will not pursue the government’s interest in the criminal matter due to the civil interests of the police and municipality.” Peter A. Joy, Kevin C. McMunigal, Police Misconduct and Release-Dismissal Agreements, Crim. Just. 31, at 33-34 (Fall 2018). Further, “a prosecutor violates [his] duty whenever the prosecutor conditions the dismissal of criminal charges that lack merit on a release of civil claims.” Id. at 34-35.

R&D agreements become particularly troubling when they are used to protect private parties from civil liability -- as was the case in the Newsome matter. From the CDLU brief:

The use of release-dismissal agreements to relieve private parties of all potential civil liability, even those who are not identified in the agreement cannot be justified. Rumery allowed certain types of agreements in highly circumscribed situations. It did so somewhat reluctantly. This Court never espoused what has now become widespread practice in Alabama, and what is now presented by Mr. Newsome’s petition. Indeed, all of the concerns expressed by this Court in Rumery make it plain that the types of agreements involved in Mr. Newsome’s petition offend basic notions of fairness and should not be allowed.

This Court presumes that civil lawsuits, particularly those alleging public corruption or misconduct should be filed and grievance should be aired. See Rumery, 480 U.S. at 395-96 (Powell, J., plurality op.). And this Court was willing to let release-dismissal agreements to interfere with that presumption, but only to “protect public officials” because some such lawsuits are meritless and defending them is to “the detriment of the[ defendants] public duties,” which “is distinctly not in the public interest.” See id. (emphasis added). That rationale, of course, has no bearing whatsoever on lawsuits involving private litigants. Private litigants serve no public function, they have no public duties, and our civil justice system presumes that lawsuits are the way to determine whether private actors have harmed one another. Release-dismissal agreements for unidentified private parties undermines our civil justice system—it hardly serves public needs.

The CDLU amicus brief points a glaring finger at dubious practices in the Shelby County Courthouse. Here's how Zeiger presents that issue to SCOTUS:

This Court should be deeply disturbed by the prospect of any release-dismissal agreements that attempt to waive civil liability for unidentified private parties. That alone offends due process and the premise of fundamental fairness. But this case presents a compelling story of a blanket and deeply unethical form of release agreement, coupled with procedural irregularities that suggest an even greater concern about the actions of the prosecution. As recounted by Mr. Newsome’s petition, John Bullock, a private citizen, filed the menacing criminal complaint against Mr. Newsome. But Bullock, in conjunction with the prosecutor, agreed to drop the charge. The prosecution, however, insisted on a blanket release-dismissal agreement on a standard form that was apparently used widely in the jurisdiction, and contained checkboxes for use in different cases. This release did not have any specific consideration for the facts of Mr. Newsome’s case, or articulate unique reasons why a release-dismissal agreement served the public prosecutorial interest. It was completely silent on why such an agreement was permissible, much less necessary to serve the ends of public justice. The form contained a release of all of Mr. Newsome’s civil and criminal claims against countless governmental entities as well as nongovernmental entities, complainants and potential witnesses.

Thus when Mr. Newsome filed a civil action against Clark A. Cooper, his former law firm Balch & Bingham, LLP, Mr. Bullock and Claiborne Seier, the full reach of the release-dismissal agreement became clear. Only Mr. Bullock had any direct involvement with the menacing charge. And Mr. Seier, Mr. Cooper and the law firm had nothing at all to do with the menacing complaint itself, and the allegations made by Mr. Newsome seem only to relate to behind-the-scenes efforts by those other defendants to either gin up a reason for malicious charges or exploit the charges once filed. Yet they were ultimately deemed to be covered by the release, and the broader lawsuit was dismissed in light of the agreement.

This Court should be deeply troubled by Shelby County’s apparently systematic practice of requiring the release of any and all possible claims from anyone, so long as any tenuous relation to the criminal charges can be imagined at a later date. What public interest could such a release possibly serve? Perhaps more significantly, what motives could elected prosecutors have to utilize such agreements? As discussed above— the answers are already clear. A prosecutor cannot be independent when pushing for an agreement that benefits private actors with little relationship to the charges at issue. See Young, 481 U.S. at 807; Rumery, 480 U.S. at 401-02 (O’Connor, J., concurring). And the temptation for impropriety is too great for this Court to tolerate.

Is that the only dubious Shelby County activity spotlighted in the CDLU brief? Absolutely not. Writes Zeiger:

Even that is not the end of the problem presented in this case. After Mr. Newsome filed a lawsuit alleging corruption and a conspiracy to falsely charge him with a crime, and, even more telling, alleging that the release-dismissal agreement “was obtained through fraudulent representations and a conspiracy”, the civil defendants appeared to work in tandem with the court to make sure this troubling release-dismissal agreement remained in effect. Mr. Newsome ultimately expunged his conviction and with it the release-dismissal agreement. And based on that expunction, the court overseeing his civil lawsuit vacated its prior dismissal of the lawsuit based on the release. But the defendants became involved in the expungement case, despite likely having no standing to do so, and presented the trial court with a draft order vacating the expungement. The order, however, was never entered into the State Judicial Information System and did not have any legal effect. Yet with concerted action by the defendants, and a long run of litigation in the state courts, the Supreme Court of Alabama ordered the draft order entered, notwithstanding the troubling circumstances surrounding its origin, but yet the order was never entered. This drew two dissenting opinions from the Court. Indeed, as one of the dissenting justices explained, the relevant order was never entered into the Alabama State Judicial Information System, and therefore the Alabama appellate courts never had any jurisdiction to take action, much less direct the reinstatement of the release-dismissal agreement. Whatever ultimately happened, or the legality of the on-again off-again expungement order, the Rumery Court warned others to be on the lookout for precisely this type of potential “prosecutorial misconduct. 

This case presents much more than just a legal technicality over the scope of release-dismissal agreements. It goes to the basic fairness of common practice in Shelby County Alabama. It potentially affects every one of CDLU’s constituents. This Court should therefore grant the writ.

Previously . . .

 * Part One: Birmingham lawyer Burt Newsome seeks U.S. Supreme Court review in case involving allegations of a plot to frame him for a crime and ruin his practice

 * Part Two: Lawyer Burt Newsome asks SCOTUS to untangle Alabama courts' messy handling of case alleging he was framed for a crime in plot to ruin his practice

* Part Three: Alabama courts trampled Burt Newsome's due-process rights -- the kind of errors that happen around the country and require U.S. Supreme Court interventio