SUPREME COURT OF THE VIRGIN ISLANDS OPINION OF THE ...

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Malone v. PeopleS.Ct. Crim. No. 2008-042Opinion of the CourtPage 18 of 25subject-matter of their “law office recantations.” (Appellee’s Br. 13.) Therefore, thejurors had an opportunity to evaluate the credibility of both Akumba and Akeem, and tofurther evaluate Akumba’s testimony concerning his recantations to the AttorneyGeneral.One aspect of the Daniel Brother’s recantations gives us pause. The DanielBrothers’ purported recantations at Attorney Benham’s law office were generated withoutthe consent of their counsel. When the Daniel Brothers’ attorneys were apprised of theirclients’ communication with defense counsel, they wanted no further communicationsbetween their clients and defense counsel outside of their presence. (Appellant’s App. 44-45.) Rule 4.2 of the ABA Model Rules of Professional Conduct prohibits a lawyer fromcommunicating with a person the lawyer knows is represented by counsel. 9Rule 4.2 isbroad and applies even if the represented person initiated the contact, and where thelawyer negligently entered into the communication with the client. Id. Importantly:This Rule contributes to the proper functioning of the legal system byprotecting a person who has chosen to be represented by a lawyer in amatter against possible overreaching by other lawyers who areparticipating in the matter, interference by those lawyers with the clientlawyerrelationship and the uncounselled disclosure of informationrelating to the representation.MODEL RULES OF PROF. CONDUCT R. 4.2 cmt. 1 (2007).9 Rule 4.2 provides that:In representing a client, a lawyer shall not communicate about the subject of therepresentation with a person the lawyer knows to be represented by another lawyer in thematter, unless the lawyer has the consent of the other lawyer or is authorized to do so bylaw or a court order.MODEL RULES OF PROF. CONDUCT R. 4.2 (2007). Pursuant to Rule 203 of the Rules of theSupreme Court of the Virgin Islands, this Court has adopted the ABA Rules of ProfessionalConduct and Rules of Disciplinary Enforcement for practitioners in the Virgin Islands.
Malone v. PeopleS.Ct. Crim. No. 2008-042Opinion of the CourtPage 19 of 25Although recantation evidence conveyed to defense counsel can be admissibleevidence in a criminal case, it is not lost upon this Court that the Daniel Brothers aremembers of a class that this rule of professional conduct was designed to protect. It isnoteworthy that based on the trial record before us neither Akumba nor Akeem generatedan affidavit of recantation for Attorney Benham. Malone’s failure to produce anyaffidavit by the Daniel Brothers on their “law office recantations” is sufficient groundsfor the trial court to have denied his Motion. See United States v. DiPaolo, 835 F.2d 46,50 (2d Cir. 1987) (citing United States v. Ward, 544 F.2d 975, 976 n.2 (8th Cir. 1976));see generally, 58 Am. Jur. 2d New Trial § 346 (WL Update 2008). While Malone wouldnot know the significance of securing the Daniel Brothers’ “law office recantations” in anaffidavit or sworn statement form, his counsel’s law partner would certainly know thesignificance of securing the “law office recantations” in an affidavit to present to the trialcourt in support of Malone’s Motion to Reopen the Defense Case.The trial court had no reason to believe that having already testified, Akumba andAkeem would have testified a second time had they been served with subpoenas and hadobtained the advice of counsel. An individual’s right against self-incriminationovercomes another individual’s right to compulsory process. See Johnson v. UnitedStates, 746 A.2d 349, 355 (D.C.2000). In Johnson, the District of Columbia Court ofAppeals reasoned that:The right of a defendant in a criminal trial to call witnesses in his owndefense has been called “an essential attribute of our adversarial system,fundamental to a fair trial, and basic to due process of law.” Littlejohn v.United States, 705 A.2d 1077, 1082 (D.C.1997) (citations omitted).Nevertheless, that right is not absolute; in particular, it may be overcomewhen it “collide[s] with the Fifth Amendment right of a trial witness” tobe free from compulsory self-incrimination. Carter v. United States, 684
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