Ch.7.Prosecutors Judges

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Prosecutors and JudgesChapter 7 – Special Ethical Rules

Pearce, et al. Contemporaryprofessionalresponsibility.com

Prof. George W. ConkSenior Fellow

Stein Center for Law & EthicsFordham Law School

[email protected]

Ch 7 Special Ethics Rules - Prosecutors and Judges

RPC 3.8 Rule 3.8 Special Responsibilities Of A Prosecutor

Who is the client of a

prosecutor?

How does the duty of a

prosecutor differ from that of a

defender? A lawyer in a private

matter?Ch 7 Special Ethics Rules -

Prosecutors and Judges 2

Q. 7-1, p. 660 Can the prosecutor ethically bring charges against Bill for lying on a government form?

(A) No, because the prosecutor is acting pretextually.

(B)No, because the prosecutor is acting selectively.

(C)Yes, because the prosecutor has probable cause to believe that Bill committed the crime.

(D)Yes, because the prosecutor’s discretion to charge or not to charge is an executive decision that is not subject to regulation by lawyers’ ethics rules.

Ch 7 Special Ethics Rules - Prosecutors and Judges 3

ABA Standards, The Prosecution Function, Standard 3-3.9 Discretion in the Charging Decision p. 641 Charges must be supported by

probable cause and “sufficient admissible evidence” that could support a conviction.

- extent of the harm caused by the offense

- the disproportion of the authorized punishment

- improper motives of a complainant - cooperation of the defendant.


Disparate penalties

Crack cocaine was a “street drug”

Powdered cocaine was a “suite drug”

Were crack prosecutors guilty of racial discrimination?

Should discriminatory effect be enough?


Selective Prosecution

“To establish a discriminatory effect

in a race case, the claimant must

show that similarly situated

individuals of a different race were

not prosecuted..and that it was

motivated by a discriminatory

purpose.”

U.S. v. Armstrong (1996) p. 680Ch 7 Special Ethics Rules -


Respecting the right to counsel It is the prosecutor’s duty to ensure

that the accused has been advised of his right to counsel, per RPC 3.8 (b).

Are we crazy? The police advised the “underwear bomber” of his right to counsel while still on the airplane at Detroit.

Can a prosecutor ask a “reliable informant” to “interview” a defendant and report back.


U.S. v. Hammad (2d Cir. 1988) p. 690

RPC 4.2 (formerly 7-104) bars contact with someone one knows to be represented by counsel.

Hammad holds that an informant may be a prosecutor’s agent, and the Rule was violated.

Should the evidence have been suppressed?

The prosecutor disciplined?


Q. 7-2 p. 696 Under RPC 3.8 May the prosecutor ethically offer this plea arrangement when all agree that Walker would be pleading guilty to a crime he did not commit?

(A) Yes

(B)No


Bordenkircher. Hayes (1978) p. 697

Does a Prosecutor’s threat in plea negotiations to indict for more serious charges violate due process?

$88.30 theft

Offer 5 years declined

New indictment, trial-- Life in prison


Package deals p. 702 “Wired pleas” “To say a practice is coercive or

renders a plea involuntary means only that it creates improper pressure on an innocent person to plead guilty.

Only physical harm, threats of harassment, misrepresentation, or bribes render a guilty plea involuntary. Ch 7 Special Ethics Rules -


Q. 7-3 p. 720Is the prosecutor constitutionally or ethically required to disclose the death of the eyewitness? (A) Yes (B)No


Prosecutorial disclosure options

Material exculpatory or sentence

mitigating evidence (Brady rule)

Open file (N.C., N.J.)

All favorable evidence RPC 3.8

(d)

All favorable evidence

(Murkowski)

All relevant evidence (FRCvP)


Prosecutors’ expert witnesses

Should pre-trial reports and

opportunity to depose

prosecution experts be extended

to criminal cases as in civil?

Should defense experts be

handled the same way?


Brady v. Maryland, 373 U.S. 83 (1963)

“Evidence that is favorable to an accused and not turned over by prosecutors upon request “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

Should there be a 1983 action for breach of a supervisory duty to train A.P.’s?

Thompson v. Connick (2011)


RPC 3.8 (d) The prosecutor in a criminal case shall: (d) make timely disclosure to the defense of

all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal


ABA Formal Opinion 09-454

RPC 3.8 (d) “does not implicitly

include the materiality limitation (in

Brady). The Rule requires

Prosecutors to disclose favorable

evidence so that the defense can

decide on its utility.”

Due process requires ”special

precautions to prevent the conviction

of innocent persons.”


Fairness in Disclosure of Evidence Act Prosecutor must disclose all “… information, data, documents,

evidence, or objects that may reasonably appear to be favorable to the defendant in a criminal prosecution brought by the United States with respect to—”

- guilt - any preliminary matter - sentence Does this go too far? Not far enough?Ch 7 Special Ethics Rules -


Fairness in Disclosure of Evidence Act Prosecutor must disclose all (b)… the attorney for the

Government shall provide to the defendant any covered information—

(1)that is within the possession, custody, or control of the prosecution team; or

(2)the existence of which is known, or by the exercise of due diligence would become known, to the attorney for the Government.Ch 7 Special Ethics Rules -


Conviction Review Unit | The Brooklyn District Attorney's Office


http://www.brooklynda.org/conviction-review-unit/

http://www.brooklynda.org/conviction-review-unit/

RPC 3.8 (g) A prosecutor in a criminal case shall: (g) When a prosecutor knows of new,

credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and


RPC 3.8 (g) (2) if the conviction was obtained in

the prosecutor’s jurisdiction, (i) promptly disclose that evidence to

the defendant unless a court authorizes delay, and

(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.


Post conviction evidence of innocence RPC 3.8 (h) p. 745 “[w]hen a prosecutor knows of clear

and convincing evidence” that the defendant in the prosecutor’s jurisdiction did not commit the offense, “the prosecutor shall seek to remedy the conviction.

Is “clear and convincing” too high a bar? Should it be “reasonable doubt…”?


Should county prosecutors bow out of police shooting cases?

Since Prosecutors depend on the local police everyday, should they step aside in cases where police excessive force is an issue?

Should St. Louis Prosecutor McCulloch have recused in the Michael Brown case because his own father was murdered by a black man?


Martin Stroud’s lament http://

blackstonetoday.blogspot.com/2015/03/prosecutor-apology-to-glenn-ford.html

Does Stroud owe Glenn Ford an

apology or only regrets?


http://blackstonetoday.blogspot.com/2015/03/prosecutor-apology-to-glenn-ford.html




Willingham

Is discipline too slight a sanction?


Codes of Conduct

Judges


Q. 7-4 p. 750 Did the judge act properly? (A) No, because the judge participated in

an ex parte communication. (B) No, because there was still time for

the calling lawyer to notify opposing counsel in order to reach agreement on rescheduling the pretrial conference.

(C) Yes, because the ex parte communication was for scheduling purposes only and did not deal with substantive matters or issues.

(D) Yes, because there was no one else in the office to take the lawyer’s call.


Q. 7-5. p. 751 Is the judge subject to discipline? (A) Yes, because the judge sought an ex

parte communication on the merits of a case pending before him.

(B) Yes, because the judge initiated a discussion with a colleague .

(C) No, because the judge is permitted to obtain the advice of a disinterested expert on the law.

(D) No, because the judge was permitted to consult about a pending case with another judge. Ch 7 Special Ethics Rules -


Question 7-6, Casebook p. 753Is it proper for the judge to hear the case?

(A) Yes, because Judge is particularly well qualified to preside at the trial.

(B) Yes, because Judge believes his judgment will not be affected by his brother’s stockholding.


Question 7-6, Casebook p. 753Is it proper for the judge to hear the case?

(C) No, because disqualification based on a relative’s financial interest cannot be waived.

(D) No, unless after proper proceedings in which Judge did not participate all parties and their lawyers consent in writing that Judge may hear the case.


CAPERTON v. A.T. MASSEY COAL CO., INC. (2009)

Litigant made huge independent expenditures to defeat a judge’s opponent

which “’offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance, nice, clear and true[,] the probability of actual bias rises to an unconstitutional level.”

Is this standard so vague that it will lead to groundless charges of bias against judges?


John Oliver – Last Week Tonight

Yulee v. Florida Bar https://youtu.be/poL7l-Uk3I8


https://youtu.be/poL7l-Uk3I8

https://youtu.be/poL7l-Uk3I8

Yulee v. Florida Bar (2015)

ACLU brief: “a rule of judicial

conduct that prohibits

candidates for judicial office

from personally soliciting

campaign funds violates the

First Amendment.”

Should judges be free to endorse

other candidates?Ch 7 Special Ethics Rules -


Iowa Supreme Court Justices Ousted by Anti-same sex marriage campaign

Is there anything wrong with such campaigns?

If you are pro-same sex marriage rights would you see anything wrong with campaigning against judges who reject it?

Should each state choose its own preference or the U.S. Supreme Court embrace a national rule via the 14th Amendment?Ch 7 Special Ethics Rules -


Should Judges speak out on policy?

Breyer and Kennedy: testify in Congress “solitary confinement drives men mad”

Rakoff: judges should speak out against mass incaceration


HR 862 (2011) Supreme Court Transparency and

Disclosure Act of 2011 - Applies to Supreme Court justices the same code of conduct that applies to U.S. circuit and district judges.

Directs the U.S. Judicial Conference to establish procedures under which complaints alleging that a justice violated such code of conduct may be filed with and investigated by the Conference. Ch 7 Special Ethics Rules -


HR 862 (2011) Requires a justice to publicly disclose

the reasons for: (1) disqualifying himself or herself,

under specified provisions of the federal judicial code, from any case in which his or her impartiality might reasonably be questioned; or

(2) denying a party's motion for such disqualification.


HR 862 (2011)

Directs the Conference to

establish a process in which

other justices or federal judges

decide whether a justice should

be disqualified when a party who

is denied such a motion seeks

further review.Ch 7 Special Ethics Rules -


Honoraria and earned outside income

U.S. – senior officials cap 15% of

base pay

Honoraria barred but may

donate up to $2,000

NJ - NO outside income from

work

Which is the better rule?Ch 7 Special Ethics Rules -


BP v. Juneau Patrick Juneau is the court-appointed

administrator of the court-supervised Deepwater Horizon Settlement Program

Did the District Court correctly conclude that he did not have any disqualifying conflict of interest?


Code of Conduct for United States Judges This Code applies to United States

circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the “Compliance” section. The Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code.Ch 7 Special Ethics Rules -


CANON 1: A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY An independent and honorable

judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective


CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES (A) Respect for Law. A judge should

respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Does it undermine public confidence if a judge goes hunting with the vice-president? Speaks at the ACLU? At a Americans for Prosperity – the Koch brothers group? Accepts an honorarium?


CANON 2: (B) Outside Influence. A judge should

not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.

A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.


CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

(C) Nondiscriminatory Membership. A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.


Canons 3.4.5

CANON 3: A JUDGE

SHOULD PERFORM THE

DUTIES OF THE OFFICE

FAIRLY, IMPARTIALLY AND

DILIGENTLY


Canons 3.4.5

CANON 4: A JUDGE MAY

ENGAGE IN EXTRAJUDICIAL

ACTIVITIES THAT ARE

CONSISTENT WITH THE

OBLIGATIONS OF JUDICIAL

OFFICECh 7 Special Ethics Rules -


Canons 3.4.5

CANON 5: A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY


UCWR and Term papers Name and exam # 15 pp term papers 25 pp UCWR Footnotes 1.5 or 2.0 line spacing Georgia 12 point type Due Friday April 24 -5:00 PM Extensions may be granted to May 7

for graduating students term papers To May 14for UCWR


Final exam

MPRE type questions #2 pencils Rules and comments Questions in book Slides and underlying notes


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Ch.7.Prosecutors Judges