Lesson Six/Chapters 9 and 10.

Chapter Nine:

Q1. Briefly describe and  discuss ‘asset forfeiture’ and why it is so widely criticized.

Q2.  We often hear the word ‘discretion’ in our everyday conversations.  Everyone exercises discretion to include the police, judges, and  attorneys when dealing with victims, suspects, and clients.  How would  you define the word ‘discretion’? Do you think the use of discretion is  similar or different when used by the police and attorneys? Why?

Chapter Ten:

Q1.  In the face-2-face ethics class, I often begin the discussion of  Chapter Ten with a simple question…’do you think there are any  innocent people in prison in the US today?’. What kind of question is  that?  SO….

Discuss  the number of innocents who may be imprisoned. What are the sources for  the estimate? What are the criticisms of the sources?

Q2. What are the four types of ethical violations that have been associated with prosecutors?

CHAPTER 9:
Discretion and Dilemmas in the Legal Profession
Lecture Slides prepared by Cheryn Rowell

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Defense attorneys are often in the position of defending clients they know are guilty
A lawyer is supposed to assist clients without regard for personal preference or interest
People with unpopular causes and individuals who are obviously guilty still deserve counsel
It is the ethical duty of an attorney to provide such counsel
Defense Attorneys

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Attorneys cannot abandon their clients unless:
the legal action is for harassment or malicious purposes,
continued employment will result in violation of a disciplinary rule,
discharged by a client, or
a mental or physical condition renders effective counsel impossible.
Responsibility to the Client

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Conflicts of Interest
Attorneys must not represent clients whose interests conflict with those of the attorney.

Attorneys must not represent two clients with opposing interests.

If a heavy caseload compels an attorney to advise his or her client to accept a plea bargain instead of going to trial, has the attorney violated prohibitions against conflict of interest?

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Plea Bargaining

Is considered by most to be efficient and probably inevitable, if not exactly “right”
Makes sense if the goals of the system are crime control or bureaucratic efficiency
Is harder to justify if the goals of the system are due process and protection of individual rights

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Zealous Defense
Defense counsel must zealously defend client, but not commit unethical acts to do so. Counsel may not:
engage in motions or actions to intentionally and maliciously harm others,
knowingly advance unwarranted claims or defenses,
conceal or fail to disclose that which he or she is required by law to reveal,
knowingly use perjured testimony or false evidence,
knowingly make a false statement of law or fact,
participate in the creation or preservation of evidence when he or she knows or it is obvious that the evidence is false,
counsel the client in conduct that is illegal, or
engage in other illegal conduct.

Aggressive advocacy sometimes involves the use of ethically questionable tactics.

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preparing witnesses
assisting with mock trials
developing desirable juror profiles
conducting phone surveys on public attitudes about a case
analyzing “shadow juries”
giving advice on effective posture, clothing choice, and tone of voice
Jury Consultants

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Confidentiality
Attorney–client privilege prevents compelling attorneys to disclose confidential information about their clients.
Exceptions that permit revealing confidences include:
• When clients consent
• When required by law or a court
• To defend against an accusation of wrongful conduct
• To prevent clients from committing crime or fraud
• To prevent, mitigate, or rectify financial injury to another

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Perjury
By rule, an attorney cannot allow perjury by the defendant.
Passive role (do not refer to perjury)
Active role (inform court)
If perjury occurs before the attorney realizes the client’s intent, the defense must not use or refer to the perjured testimony.

If a defendant commits perjury but the attorney does not know it is perjury, might this lead to a “don’t ask, don’t tell” mentality?

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A Higher Standard of Behavior?
Most agree that lawyers, like police officers, should be held to a higher standard of behavior.
Some allege that, instead, lawyers allow themselves a double standard, to wit:

Lying is lying unless it is done by a lawyer
Even then, it is just doing one’s duty, a mere “misstatement of fact” made in the client’s interests

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Resolving Ethical Dilemmas for
Defense Attorneys

The situational model weighs each case on its particular factors
The systems model considers the guiding ethical rule to determine rightness or wrongness of a behavior

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Must seek justice, not convictions
Have discretion to charge or not charge defendants—one of the most important decisions in the criminal justice process
The decision to charge:
May be influenced by politics
Is especially sensitive in capital cases
Prosecutors

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Prosecutors’ Discretion to Charge
Legal sufficiency

System efficiency

Defendant rehabilitation

Trial sufficiency

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Conflicts of Interest

Problems related to part-time prosecutors

Problems related to a prosecutor’s political aspirations

Problems related to asset forfeiture laws

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Media Relations

No out-of-court statements should be given that would materially prejudice a proceeding
Statements regarding the general nature of the charge and information that is public record are permissible

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May provide testimony based on principles generally accepted in the scientific community
Benefit from a halo effect when their expertise in one area results in their receiving deference in other areas
Lose credibility after gaining a reputation as a “hired gun” by always appearing on one side of an issue
Expert Witnesses

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CSI and the Courts
Popular television programs suggest that scientific methods are infallible in solving crimes.
But serious questions arise over laboratory management practices, the veracity of technician testimony, and the very nature of the “sciences” involved:
Hair analysis: a highly suspect field
Arson investigation: recent findings conflict with established beliefs
Ballistics testing: lead comparison analysis debunked
DNA testing: an evidentiary minefield
Fingerprint analysis: estimated to yield false positives in up to one quarter of all comparisons
Bite mark comparisons: cannot be reliably measured

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Thinking Point
In early August of 2010, the North Carolina State Bureau of Investigation was proven to have misrepresented or completely hidden test results for approximately 230 cases which involved blood work. It is believed that an internal audit laid the groundwork to establish faulty, unethical procedures by many of their lab analysts. Corrupt law enforcement, attorneys, and judges have been discussed.
What, if anything, differentiates the lab analysts?
Can such unethical behaviors be prevented?

Judicial Discretion
Occurs in two major areas:

Interpretation of the law
Sentencing

Interpretation of the law includes:

Ruling on admissibility of evidence
Ruling on objections during trial
Writing critical jury instructions

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Discretion: Exclusionary Rule
Interpretation of the law may necessitate invoking the exclusionary rule.
A fair society cannot accept a conviction based on tainted evidence.
Thus, illegally obtained evidence cannot be used (is excluded) at trial.
This serves to discourage police from breaking the law in a misguided effort to enforce the law.
Some exceptions are allowed, including:
Public safety
Good faith
Inevitable discovery

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Sentencing raises unique ethical issues.
Is there a single acceptable punishment for a certain type of offense or offender?
Does justice depend on community opinion of the crime, the criminal, and the proposed punishment?
Sentencing inconsistencies occur between individual judges in the same community.
Controversy and recent court decisions regarding Sentencing Guidelines illustrates importance of judicial role in preserving due process.
Discretion: Sentencing

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CHAPTER 10:
Ethical Misconduct and Responses
Lecture Slides prepared by Cheryn Rowell

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“First . . . Let’s Kill All the Lawyers . . .”
The public has little confidence in lawyers’ ability to live up to ideals of equity, fairness, and justice.

Both Plato and Aristotle condemned the advocate’s ability to make the truth appear false and the guilty appear innocent.

The lawyers’ ability to argue either side of an issue raises a level of distrust.

The law can be a tool of oppression or a sword of power; lawyers and judges are the ones who wield its power.

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Attorney Satisfaction
50% of lawyers describe their colleagues as “obnoxious”
60% of attorneys who practice law for 6-9 years were dissatisfied with their careers.
Only 55% of lawyers were satisfied with their career.
Only 44% of all attorneys would recommend law as a career.

A Higher Standard of Behavior?
Most agree that lawyers, like police officers, should be held to a higher standard of behavior.
Some allege that, instead, lawyers allow themselves a double standard, to wit:
Lying is lying unless it is done by a lawyer
Even then, it is just doing one’s duty, a mere “misstatement of fact” made in the client’s interests

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Defense Attorney Misconduct
Examples of ineffective counsel in capital cases:
Attorney use of heroin and cocaine during trial

Attorney letting defendant wear the same clothes described by victim

Attorney admitting that he didn’t know the applicable law or the facts of the case

Attorney not being able to cite a single death penalty case holding

Attorney drinking heavily each day of the trial

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Bribing Witnesses
Allowing the client to intimidate a witness
Instructing a client to destroy physical evidence
Encourage the client to manufacture an alibi
Allowing the client to commit perjury.
Defense Attorney Misconduct

Types of Prosecutorial Misconduct
Withholding exculpatory evidence.
Misusing pretrial publicity.
Using preemptory challenges to exclude potential jurors.
Introducing false evidence in the courtroom.

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Concealed Evidence that discredited their star witnesses
Suppressed evidence that a murder occurred when the defendant had an alibi
Depicted red paint as blood
Portrayed hog blood as human
Suppressed statement of eyewitnesses men that were white when prosecuting black
Examples of Prosecutorial Misconduct

Received a weapon from the crime scene, but hid it.
Hid blood-spatter expert’s report that supported the defendant.
Withheld evidence that an informant had framed the defendant.
Concealed evidence indicating that a chief witnesses was, in fact, the killer.
Types of Prosecutorial Misconduct

Judicial Misconduct
Judicial misconduct is rare, but does occur.
Neutrality is questioned when judges voice strong opinions on issues or cases.
A judge may recuse him/herself if he/she has a vested interest in the issue or one of the parties involved.
Often the mere appearance of impropriety is sufficient to warrant recusal.
Lack of courtroom decorum could, in extreme cases, represent judicial misconduct.

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Examples of Judicial Misconduct
Failing to inform defendants of their rights
Coercing guilty pleas
Exceeding sentencing authority
Exceeding bail authority
Denying full and fair hearings
Abusing criminal contempt power
Ignoring probable cause requirements
Denying defendants’ rights
Penalizing defendants for exercising their rights

Thinking Point
A Wisconsin Judge has been issued a verbal reprimand for refusing to hear cases. Judge John Zodrow openly announced to the Wisconsin Judicial Commission that, “the cases can sit and collect dust until hell freezes over” for all he cares. Zodrow was protesting the lack of clerical assistance his office received. Zodrow has since lost his bid for reelection.
Was Zodrow’s behavior “misconduct”?
Was he punished appropriately?

Justice on Trial?
False convictions have occurred due to:
mistaken eyewitness testimony
perjury by informants
police and prosecutorial misconduct
false confessions
“junk science”
ineffective assistance of counsel
racial bias
“confirmatory bias”

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Innocence Projects identify and help those wrongly convicted (over 300 thus far)
Estimates are that 1–15% of convictions are of innocent people
System has subtle bias of presumption of guilt
Appellate mechanisms exist in all states and the federal system to rectify identified errors—why don’t they?
System only as good as the individuals who make the decisions
Justice on Trial?

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Two Perceptions
“Is it better for 100,000 guilty men to walk free rather than have one innocent man convicted? The cost–benefit policy answer is no.” (prosecutor)
“No rate of preventable errors that destroy people’s lives and destroy the lives of those close to them is acceptable.” (law professor)
Which of these statements represents ethical formalism? Which statement represents utilitarian thinking?

Prosecutorial Misconduct and
Noble Cause Corruption
Confirmatory bias- human tendency to confirm instead of disconfirm.
Selective information processing- only recognizing evidence to fit one’s own theory.
Belief Perseverance- believing one’s theory despite evidence to the contrary.
Avoidance of cognitive dissonance- adjusting beliefs to maintain existing self perceptions.

Responding to Misconduct
ABA offers formal and informal opinions when impropriety have been made.
State bar association can sanction offending attorneys in private or in public.
Only 3 percent of investigations by state disciplinary committees result in public sanctions.
Only 1 percent of investigations end in disbarment.

Judicial Independence
and the Constitution
Judges wield great discretion that should be used without bias.
Like the rest of us, judges are grounded in their personal ethical belief system.
Implementation of law (as with creation of law) can be a political process (note: firing of U.S. Attorneys).
The judiciary is supposed to be separate from the executive or legislative branch of government, but is it?

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An independent judiciary is a fundamental tenant of the American governmental system.
But judges are not completely independent, as they must either stand for election or be appointed.
“Conservative” judges—strict constructionists—support individual rights specified in the Constitution or created by some other recognized legal source.
“Liberal” judges—interpretationists—support rights that the Framers might have recognized or that should be recognized due to “evolving standards.”
Judicial Independence
and the Constitution

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The United States Supreme Court
The Court’s immense power makes it politically crucial for both conservatives and liberals to try to exert control over it.
Every vacancy results in fierce political battles over the candidates.
Historically, the assumption that certain justices will vote a specific way on specific issues is inaccurate.
Justices are guided by common-law doctrine, the Constitution, and their individual ethical orientation, in addition to political considerations.

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Where do your rights come from?
From the Constitution, law, or governmental edict?
“Inalienable rights” inherent in being human only recognized by these documents
What are your “natural” rights?

Natural Rights
To be free
To be treated equal to other groups
To be able to make decisions about personal matters without governmental interference
To be free from torture and punishments that degrade the human spirit
To have some protections against state power.