Misconduct charge against attorney dismissed

A misconduct allegation filed by the Virginia State Bar against a top lawyer in the Virginia Attorney General's Office has been tossed out.

An order dismissing the complaint against Katherine Baldwin Burnett, senior assistant Virginia attorney general and director of the office's capital litigation unit, was entered this week by the three-judge panel that had been set to hear the matter next month.

The charges stemmed from a 2006 hearing on a different bar complaint filed against Winchester Commonwealth's Attorney Alexander R. Iden.

Burnett had warned Iden in 2002 that lawyers for condemned killer Edward N. Bell might contact jurors to try to advance Bell's appeal. Burnett was accused of making false statements during Iden's 2006 hearing and with interfering with another lawyer's access to evidence.

But the charges were dismissed Monday on a motion from retired lawyer John M. Oakey Jr., appointed special assistant bar counsel in the case by Gov. Timothy M. Kaine.

Oakey said in a statement that he could not go into details. However, he said, "based on all the evidence and the law, it was my firm opinion that the court would not and should not find a violation of the ethics rules under a clear and convincing evidentiary standard."

He asked the judges to dismiss it, and they agreed. Richmond lawyer Craig S. Cooley, who represented Burnett, said, "I think the motion and the dismissal were absolutely appropriate."

Jonathan Sheldon, a Fairfax lawyer who filed the complaint, declined to comment beyond noting that a prominent criminal-defense lawyer recently stepped down from one of the bar's district disciplinary committees accusing the bar of not adequately pursuing misconduct allegations against prosecutors.

Sheldon represents death-row inmates on appeal and had represented Bell. Burnett was the opposing counsel in the Bell case. Bell was executed in February for the 1999 murder of a Winchester police officer.

According to the notice sent to Burnett by the bar, she gave Iden a form letter to send Bell's jurors advising them that someone representing Bell might contact them and give the false impression that 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 to the jurors.

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." A Virginia State Bar district committee admonished Iden for violating professional rules of conduct, but later a three-judge panel dismissed the misconduct finding.

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. Lawyers representing death-row inmates say they have a duty and right to contact jurors.

According to a transcript, Burnett 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."

The charge of misconduct against Burnett stated that she knowingly made false statements to the 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.

Had the charge against her held up, Burnett faced potential discipline ranging from an admonition to the revocation of her law license.

Contact Frank Green at (804) 649-6340 or .