Matter of Howes

Paul Howes was a New Mexico-licensed assistant United States attorney assigned to prosecute a murder in Washington D.C. Darryl Smith was arrested for the murder, and public defender Jaime Gardner was appointed to represent him. Gardner said Howes could not talk to Smith without complete immunity, which Howes would not offer. Meanwhile, Smith repeatedly called a police detective and talked about the murder and two others. The detective told Howes, who knew office policy allowed him to contact represented witnesses in other cases without first notifying their counsel. Howes’s supervisor said the detective could not initiate contact with Smith but could listen if Smith called again. When Gardner learned about the calls, she asked the court to order no further contacts. Howes responded that if Smith called, “we will take his call.” The judge issued no directive but said Gardner would undoubtedly tell Smith to avoid further contacts. However, Smith kept calling the detective and began calling Howes. Howes told Smith he did not have to speak with them and Gardner would be unhappy, but Smith persisted in talking about the murder while Howes and the detective listened without asking questions. After the detective agreed to meet Smith at the jail, supervisors advised the detective to take a partner and give Smith Miranda warnings, but Smith refused to sign the Miranda form, ending the meeting. Howes later accepted four more collect calls from Smith and listened to everything Smith said, without asking questions. Again Smith spoke about only the murder in his case. Gardner tried to have Smith’s statements to Howes and the detective suppressed and the indictment dismissed for prosecutorial misconduct. The judge refused but referred the matter to the D.C. ethics board, which referred it to New Mexico disciplinary counsel. The hearing committee and disciplinary board concluded Howes had violated the ethics rule by communicating directly with Smith. Howes appealed.