NDAA's Amicus Brief Responding to ABA's DA Ethical Standard

In submitting a “BRIEF OF AMICUS CURIAE” to the U.S. Supreme Court in the Louisiana case of Smith v. Cain, NDAA took the opportunity to be the “Voice of America’s Prosecutors.”

You can review the NDAA brief by clicking here.
 
Our interest in submitting this amicus brief is set forth in our amicus brief and states as follows:

“NDAA has a significant interest in this case, particularly with respect to the issue raised by the American Bar Association as amicus curiae in this proceeding in support of petitioner. The ABA amicus brief expressly declines to address the merits of petitioner’s claims in this case, but instead asks this Court to recognize prosecutor ethical standards for disclosure of evidence greater than those established by this Court under Brady v. Maryland, 373 U.S. 83 (1965), and its progeny. The ABA specifically points to its Model Rule 3.8(d), which sets a standard for disclosure of evidence by prosecutors that is broader than the Brady line of cases requires. NDAA, on behalf of all prosecutors, has an interest in any ruling by this Court that would apply to the Orleans Parish District Attorney’s Office a standard different from that which is enunciated under Brady.  NDAA, and its members, have a compelling interest in the court’s determination of this issue because state regulation of the practice of law and prosecutorial ethics are matters of critical importance to this country’s prosecutors. Local prosecutors are responsible for the overwhelming number of criminal cases in this country and the standards enunciated by the Court have an enormous impact on their practice.  It is ultimately the members of NDAA who will bear the [impossible] burden created by the American Bar Association should this court accept its invitation to “recognize that a prosecutor’s pre-trial ethical disclosure obligations, [which are established by the attorney regulatory body of the highest court of the prosecutor’s state or jurisdiction,] are separate from and broader than the Brady constitutional standards.”

What raised NDAA’s interest in this case was the an amicus brief filed by the American Bar Association (ABA), which proposed that the Supreme Court recognize a DA ethical standard, somewhat independent of Brady. NDAA’s legitimate concern is that the ABA standard is a stricter standard than what the Supreme Court has recognized in Brady jurisprudence; and that the ethical standard for prosecutors varies from state to state, without uniform adoption of the ABA standard. Based on this concern your Executive Committee felt a strong statement in an amicus brief could serve to steer the court away from some sort detour down the ABA’s proposed path and gives us an opportunity to be a voice for prosecutors in this regard. Please note, NDAA’s amicus brief is limited to addressing the ABA issue, and does not address the merits of the Brady issue.
 
On behalf of all our members, I want to express our deepest gratitude to Sacramento County Assistant District Attorney Albert Locher and San Diego County Deputy District Attorney Laura Tanney who prepared this important amicus on behalf of NDAA.