Va. prosecutor is accused of misconduct
By Frank Green
May 23, 2009
A top state lawyer defending Virginia death sentences has been accused of misconduct by the Virginia State Bar, an agency of the Virginia Supreme Court.
Katherine Baldwin Burnett, senior assistant Virginia attorney general and director of the office's capital litigation unit, allegedly made false statements during a bar hearing in April 2006 and interfered with another lawyer's access to evidence.
The 2006 hearing concerned a complaint filed against Winchester Commonwealth's Attorney Alexander R. Iden, whom Burnett warned that lawyers for condemned killer Edward N. Bell might contact jurors in an effort to advance Bell's appeal.
Should the charges hold up, Burnett faces potential discipline ranging from an admonition to the revocation of her law license.
But Burnett's lawyer, Craig Cooley, said yesterday that "she adamantly denies any violation whatsoever and we anticipate that will be the finding. . . . I fully expect a resolution favorable to her."
The notice sent to Burnett shows the complaint was made by Fairfax lawyer Jonathan P. Sheldon, who represents death-row inmates on appeal, including Bell and sniper John Allen Muhammad. Burnett was the opposing counsel in the Bell case and is involved in the Muhammad case.
Bell, 43, was executed in February for the Oct. 29, 1999, slaying of Winchester police Sgt. Ricky L. Timbrook.
According to the four-page notice sent to Burnett by the bar, Burnett gave Iden, the Winchester prosecutor, a form letter to send Bell's jurors advising them that "a person or persons" representing Bell might contact them and give the false impression they are working for the state or the court.
"You are under no obligation to discuss the case with anyone representing Bell. If anyone contacts you about the case, you should demand that the persons in question produce some official identification," stated the letter.
It concludes by advising: "You then should contact this office before talking to such persons about the case, so that we can verify their identity."
Cooley said the form letter was drafted 12 years ago, "and has been sent out to prosecutors ever since then and she just followed suit."
A Virginia State Bar district committee publicly admonished Iden for violating professional rules of conduct. But Iden appealed and on Oct. 18, 2006, a three-judge panel in Winchester Circuit Court dismissed the misconduct finding as contrary to law.
According to the bar complaint concerning Burnett, Burnett testified at Iden's 2006 hearing that appeals lawyers should not interview jurors without a court order.
She also said: "There is no duty or right for someone who is appointed to represent a death-row inmate to go and contact every juror. No. The law says to me otherwise," according to a hearing transcript.
The charge of misconduct against Burnett states: "The above statements were made knowingly by [Burnett], and each is a false statement of the law and was made to a tribunal."
The bar notice also cites a rule against obstructing another party's access to evidence or to counsel or assisting another person to do the same.
A state bar spokeswoman said the matter was to have been taken up June 9 by a district committee of the bar but that Burnett asked for a three-judge circuit court hearing instead. That hearing has not been set, the spokeswoman said.
Cooley said one of the allegations already has been decided by a three-judge panel, which "ruled emphatically that as a matter of law is not an ethical violation." As for the perjury, "we absolutely think that cannot be proven. There was no perjury," Cooley said.
Burnett began working at the attorney general's office in 1985, and a spokesman there said she is an employee in good standing. Among other things, she is on the executive board of the Association of Government Attorneys in Capital Litigation.
Contact Frank Green at (804) 649-6340 or firstname.lastname@example.org.
||Truth in Justice