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Prosecutorial Ethics. Karen S. Townsend. Beginnings. Rules of Professional Conduct set a minimum standard Each prosecutor must find within his or her conscience the touchstone against which to test whether his or her actions rise above these minimum standards.
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Prosecutorial Ethics Karen S. Townsend
Beginnings • Rules of Professional Conduct set a minimum standard • Each prosecutor must find within his or her conscience the touchstone against which to test whether his or her actions rise above these minimum standards. • Prosecutors need to follow all of the Rules. • Prosecutors are the only lawyers that have a particular rule devoted to their practices. • Keep the white hats clean.
Rules to live by Don’t file frivolous motions or motions designed to harass or delay Don’t fail to cite opposing authority Don’t make a false statement of fact or law to the judge. Don’t conceal or fail to disclose evidence that the other side is entitled to. Don’t counsel a witness to testify falsely or offer an inducement to a witness prohibited by law. Don’t allude to a matter not likely to be admitted as evidence or assert personal knowledge ModelRules
More Rules to Live by TRIAL PUBLICITY You need to be cautious, but you have significant flexibility because of the exceptions. Biggest exception is the public record ModelRules
Special Responsibilities of a Prosecutor No prosecution unless there is probable cause. Assure accused has been advised of rights. Don’t seek to get an unrepresented accused to waive his rights. Make timely disclosure of all evidence that accused is entitled to. Follow the publicity rules and be especially careful about statements that will likely heighten public condemnation of the accused. Rule 3.8
Why follow the Rules? • It’s the right thing to do. • One less reason for a reversal. • Avoid bad publicity for you and your office. • Keep your license to practice law
Instead, you see yourselves as champions and defenders of truth and justice!
Many of the Rules do not apply in criminal cases. • Don’t handle client’s money • Don’t have to worry about scope of representation • Aren’t “third party neutrals” • Confidentiality of information provided by clients • Unreasonable fees
WHAT’S THE PICTURE HERE? • In 2010, initial complaints were filed with the Office of Disciplinary Counsel for one of every eleven lawyers in Montana • After those complaints shook out, about one in every ninety Montana lawyers was either publicly or privately sanctioned • In 2010, the Montana Supreme Court imposed thirteen formal disciplinary sanctions or disability inactive rulings for eleven Montana lawyers. • One of those lawyers was a former prosecutor who was disbarred for engaging in criminal conduct.
What if you get notice of a complaint from the ODC? • You must take it seriously even if it makes you mad! • You need to respond completely and truthfully. • Don’t hesitate to attach documentation from your files. • Don’t hesitate to attach a letter refuting the allegations. • Remember that although complaints are filed against approximately 10% of Montana’s lawyers, only 1% of the filed complaints ever result in discipline. • The ODC screens out and/or dismisses the largest majority of the complaints initially filed. • The Commission on Practice dismisses even more.
Discussion Scenarios Can you be the Ethics Wizard?
Scenario One • During Pre-Trial Prep, you discover a significant discrepancy in the description given by two detectives about the crime scene.
What do you do? • Interview them jointly and point out the discrepancy? • Interview them separately, but point out the discrepancy? • Tell them that it would be better to get the facts straight? • None of the above, and if not, what?
Trial is in two days, you learn • Your key witness is: • Dead • Has left the country • Cannot be located at address given to police • Has a terrible criminal record
Must you?/Can you? • Notify defense counsel? • Notify the Court? • Quickly offer a sweet deal to defense counsel without disclosing the above?
Right before trial you learn: • Key witness has been contacted by counsel for defendant and advised that defendant was going to plead guilty, so no need to show up at trial, so no witness • Defense counsel appears at trial and does not plead but intends to proceed to trial.
What can you do? • What if anything do you tell the judge? • Do you move to continue? • Do you report defense counsel for an ethics violation? • If so, what?
You are listening to colleague practice tomorrow’s opening statement. • “During this trial you will hear from John Ethridge. He was also charged with this robbery. John has plead guilty to attempted robbery. I’ll say from the bottom of my heart, that he was one soul who at one time was unclean, but now is clean. We are looking forward to his testimony.”
During pre-trial prep, you learn • Key police witness is being investigated for being untruthful about his work hours. • He has admitted he lied.
Do you? • Disclose in this case? • Disclose in every future case where he is a witness? • How long does this issue follow this officer?
Family of a murder victim has retained services of a private attorney. That attorney has volunteered to work pro-bono as an assistant prosecutor on the murder prosecution.
Do you? • Gladly accept the help? • Turn over the whole case to the volunteer? • Let the volunteer participate in plea negotiations?
Grizzly murder of mother and child, one surviving child • How closely can you associate yourself with the survivor? • Can you describe the crime scene as a “house of horror, blood and carnage, worst scene I’ve seen in my career”?
Can you say: “This case demonstrates the need for the death penalty”? • Can you reject an offer to plead to life without parole?
Can you argue in summation: “If you listen closely, you can hear (first name of dead mother) crying from the grave: Avenge me, Avenge my little boy. Avenge my baby girl.”?
Victims and Plea Agreements • You have carefully analyzed case, and proof is hard. • Defendant has offered to plead to a lesser charge with prison time. • Victim says too lenient.
Do you? • Accept the offer and tell victim he can submit a victim impact statement to the judge? • Allow the victim to veto the agreement?
Key victim reluctant to testify • Serial burglar/rapist case. • Only one victim has made a positive ID as she pulled off mask. • Other victims can describe height, weight, general build. • Defendant has suspicious absences from work during crimes and one false alibi.
