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discussion slidesCh. 7 - Pearce, et al. Professional ResponsibilityProfessional ResponsibilityProf. George W. ConkStein Center for Law & EthicsFordham Law SchoolApril 14, 2015
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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
gconk@law.fordham.edu
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.
Ch 7 Special Ethics Rules - Prosecutors and Judges 4
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?
Ch 7 Special Ethics Rules - Prosecutors and Judges 5
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 -
Prosecutors and Judges 6
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.
Ch 7 Special Ethics Rules - Prosecutors and Judges 7
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?
Ch 7 Special Ethics Rules - Prosecutors and Judges 8
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
Ch 7 Special Ethics Rules - Prosecutors and Judges 9
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
Ch 7 Special Ethics Rules - Prosecutors and Judges 10
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 -
Prosecutors and Judges 11
Q. 7-3 p. 720Is the prosecutor constitutionally or ethically required to disclose the death of the eyewitness? (A) Yes (B)No
Ch 7 Special Ethics Rules - Prosecutors and Judges 12
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)
Ch 7 Special Ethics Rules - Prosecutors and Judges 13
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?
Ch 7 Special Ethics Rules - Prosecutors and Judges 14
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)
Ch 7 Special Ethics Rules - Prosecutors and Judges 15
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
Ch 7 Special Ethics Rules - Prosecutors and Judges 16
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.”
Ch 7 Special Ethics Rules - Prosecutors and Judges 17
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 -
Prosecutors and Judges 18
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 -
Prosecutors and Judges 19
Conviction Review Unit | The Brooklyn District Attorney's Office
Ch 7 Special Ethics Rules - Prosecutors and Judges 20
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
Ch 7 Special Ethics Rules - Prosecutors and Judges 21
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.
Ch 7 Special Ethics Rules - Prosecutors and Judges 22
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…”?
Ch 7 Special Ethics Rules - Prosecutors and Judges 23
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?
Ch 7 Special Ethics Rules - Prosecutors and Judges 24
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?
Ch 7 Special Ethics Rules - Prosecutors and Judges 25
Willingham
Is discipline too slight a sanction?
Ch 7 Special Ethics Rules - Prosecutors and Judges 26
Codes of Conduct
Judges
Ch 7 Special Ethics Rules - Prosecutors and Judges 27
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.
Ch 7 Special Ethics Rules - Prosecutors and Judges 28
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 -
Prosecutors and Judges 29
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.
Ch 7 Special Ethics Rules - Prosecutors and Judges 30
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.
Ch 7 Special Ethics Rules - Prosecutors and Judges 31
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?
Ch 7 Special Ethics Rules - Prosecutors and Judges 32
John Oliver – Last Week Tonight
Yulee v. Florida Bar https://youtu.be/poL7l-Uk3I8
Ch 7 Special Ethics Rules - Prosecutors and Judges 33
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 -
Prosecutors and Judges 34
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 -
Prosecutors and Judges 35
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
Ch 7 Special Ethics Rules - Prosecutors and Judges 36
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 -
Prosecutors and Judges 37
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.
Ch 7 Special Ethics Rules - Prosecutors and Judges 38
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 -
Prosecutors and Judges 39
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 -
Prosecutors and Judges 40
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?
Ch 7 Special Ethics Rules - Prosecutors and Judges 41
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 -
Prosecutors and Judges 42
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
Ch 7 Special Ethics Rules - Prosecutors and Judges 43
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?
Ch 7 Special Ethics Rules - Prosecutors and Judges 44
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.
Ch 7 Special Ethics Rules - Prosecutors and Judges 45
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.
Ch 7 Special Ethics Rules - Prosecutors and Judges 46
Canons 3.4.5
CANON 3: A JUDGE
SHOULD PERFORM THE
DUTIES OF THE OFFICE
FAIRLY, IMPARTIALLY AND
DILIGENTLY
Ch 7 Special Ethics Rules - Prosecutors and Judges 47
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 -
Prosecutors and Judges 48
Canons 3.4.5
CANON 5: A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY
Ch 7 Special Ethics Rules - Prosecutors and Judges 49
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
Ch 7 Special Ethics Rules - Prosecutors and Judges 50
Final exam
MPRE type questions #2 pencils Rules and comments Questions in book Slides and underlying notes
Ch 7 Special Ethics Rules - Prosecutors and Judges 51
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