Prosecutorial Misconduct Claims Saved For Direct Appeal

The Massachusetts Supreme Judicial Court has affirmed a denial of a motion to dismiss a criminal case, rejecting the argument that Rule of Professional Conduct 3.8(f) mandated a contrary result

In the Superior Court, Forlizzi (joined by Battista) moved to dismiss the indictments, alleging that, during the investigation leading to the indictments, the Commonwealth had engaged in prosecutorial misconduct. They claimed that the Commonwealth caused the grand jury to subpoena the bank records of trial counsel in violation of Mass. R. Prof. C. 3.8 (f), 426 Mass. 1397 (1998), and that the Attorney General improperly obtained counsels’ tax records though the insurance fraud bureau.

A Superior Court judge denied the motion, concluding that the proscription of rule 3.8 (f) does not apply to thirdparty record holders such as banking institutions, but that the mechanism used by the prosecutors to obtain the attorneys’ tax records constituted overreaching. The judge determined, however, that dismissal of the indictments as a sanction was not warranted in the circumstances…

 The court

The petitioners’ claims generally involve due process considerations, alleged violations of the attorney-client relationship, and infringement on the right to counsel. They have not, as is their burden, demonstrated that those claims involve violation of any right that cannot be remedied in a direct appeal if and when the petitioners are convicted.

(Mike Frisch)