Ethics for ProsecutorsChapter 9

From last class…

• Lawyers face similar ethical dilemmas to police in terms of whom they are to serve first: themselves by winning cases—Legal Advocate, or the criminal justice system—Moral Agent.

• There are different ethical demands for different lawyers: Public/Private Defenders: Ethic of Right, where the client’s rights are the priority and the Prosecutor: Ethic of Care, where the system of law is priority.

Do defense attorneys and prosecutors practice the law differently?

Given Colorado 2002, there are distinct legal differences between public defenders and prosecutors:

Public defenders advocate for clients

Prosecutors advocate for “justice” (the criminal justice system). However, studies suggest that Prosecutors really serve “winning” a case and proving guilt.

…to this class

The dilemmas faced by Prosecutors are significant due to public scrutiny and opinion.

Police Prosecutor

1) The police, if acting ‘professionally,’ will remain constrained by their position as suspect/evidence gathers.2) Police deliver their “goods” to the Prosecutor, who then determines if the evidence and crime is strong enough to prosecute.

The determination to prosecute is an ethical quandary.

DA Dilemma

Consider a DA who prosecutes a statutory rape case where the victim gave consent, had known prior sexual relations, and the suspect had no prior sexual crimes nor knowledge of the victim’s young age, but must be sentenced to 10-30 years w/o parole if convicted. In addition, the victim and suspect still have a relationship.

The defense is asking to settle with a deal, but the DA is does not think this is just, until he sees a photo of the victim who looks to be over 18.

Should the DA take the plea? Or should the DA prosecute the suspect?

DA Dilemma--Exponential

Most DAs, like Judges, are elected officials. Hence, their conviction rate is a matter of public record and reputation. So, whether they take a case to trial is dependent on an exponentially more difficult set of variables than defenders ever experience.

It is not just that a crime exists, but that it must be:1) viewed as publically harmful2) the evidence to tie the criminal to the crime strong 3) And the evidence is itself viewed as strong by the public.

Types of Prosecutorial Misconduct

1) Wrongful Pursuit of Personal Gain2) Favoritism and Bias3) Abuse of Power4) Denial of Due Process5) Deceitfulness6) Neglect of Duties (Nonfeasance, Misfeasance, Malfeasance)7) Flawed Personal Life

DA Dilemma—Exponential: Example of Ferguson DA

Over the course of three months, St. Louis County Prosecuting Atty. Robert McCulloch asked the jury of nine whites and three blacks to hear virtually every piece of evidence in the case: witnesses who both supported and contradicted police Officer Darren Wilson's account, three autopsy reports, bloodstains and shell casings."Our only goal was that our investigation would be thorough and complete, to give the grand jury, the Department of Justice and ultimately the public all available evidence," McCulloch said in announcing that the jury had found no probable cause to bring Wilson to trial on criminal charges.

St. Louis County Prosecutor Robert McCulloch said he knew that some witnesses were lying to the St. Louis grand jury about the Michael Brown case.

McCulloch said he thought it better to give the grand jury more information, rather than less, and let the jurors decipher which statements were credible.“I thought it was much more important that the grand jury hear everything, what people have to say — and they’re in a perfect position to assess the credibility, which is what juries do.”McCulloch said he will not file perjury charges against those who may have lied under oath.

DA Dilemma—Exponential: Example of DA Angela Corey vs. DA Norm Wolfinger• DA Norm Wolfinger did not arrest or charge George Zimmerman even

though the public believed a trial was necessary and protests of up to 30,000 demanded such.• DA Angela Corey was appt. to replace Wolfinger by Florida Governor.

Corey charged Zimmerman with Murder (rather than manslaughter).• Zimmerman was acquitted. Corey was accused of either overcharging

Zimmerman or charging him at all due to circumstantial evidence or withholding evidence (Zimmerman’s injuries).

DA Dilemma—Exponential: Example of Misconduct

Types of Prosecutorial Misconduct/Cases1) Wrongful Pursuit of Personal Gain2) Favoritism and Bias3) Abuse of Power4) Denial of Due Process5) Deceitfulness6) Neglect of Duties (Nonfeasance,

Misfeasance, Malfeasance)7) Flawed Personal Life

• Darren Wilson Case (No Misconduct)

• George Zimmerman (2, 4, 6)

• Duke Lacrosse Team (1-7)

• Alberto Gonzales (1, 2, 3, 5)

• Atlanta Child Murderers (6)

• Thin Blue Line Case (6)

Ways of Control and Misconduct

O) Evidence Discovery/DisclosureA) Plea BargainingB) Dropping (merging) chargesC) Selective ProsecutionD) Nolle prosequiE) Deals and Promises for Testimony

• Darren Wilson Case (No Misconduct/O)

• George Zimmerman (2, 4, 6/C)

• Duke Lacrosse Team (1-7/E)

• Alberto Gonzales (1, 2, 3, 5/O)

• Atlanta Child Murderers (6/O, D, C)

• Thin Blue Line Case (6/O, E)

Why do Prosecutors Misbehave?

Prosecutors are voted into office because they are moral agents, whose client is the public.

1) To win a weak case, a prosecutor may need to influence the jury by ‘injecting’ inadmissible evidence (O).

2) To win a weak case, a prosecutor may lie in an opening statement (O).3) To win a weak case, a prosecutor may lie in a closing statement (O).4) The public profile hypes their moral stature and they believe in their “hero” status.5) The public opinion justifies their behavior in (1-3).6) When called out for their misconduct, they can plead “error.”7) Because of their high office, prosecutors are “too big to fail.”