Legal Ethics and Professional Responsibility Commons^™

The Challenge Of Convicting Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Adam M. Gershowitz

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

Disciplinary Regulation Of Prosecutorial Discretion: What Would A Rule Look Like?, Samuel J. Levine

Samuel J. Levine

This Essay is the third part of a larger project examining the potential role of professional discipline in the regulation and supervision of prosecutors’ charging decisions. The first two parts of the project argued that courts have both the authority and the ability to exercise effective disciplinary review of charging decisions through the adoption of ethics rules and their enforcement in the disciplinary process. This Essay takes the next step in the project, considering the nature of rules that courts might adopt, by exploring potential rules targeting two improprieties: arbitrary and capricious charging decisions, and discriminatory charging decisions.

Organizations As Evil Structures, Cary Federman, Dave Holmes

Cary Federman

Nursing practice in forensic psychiatry opens new horizons in nursing. This complex, professional, nursing practice involves the coupling of two contradictory socioprofessional mandates: to punish and to provide care. The purpose of this chapter is to present nursing practice in a disciplinary setting as a problem of governance. A Foucauldian perspective allows us to understand the way forensic psychiatric nursing is involved in the governance of mentally ill criminals through a vast array of power techniques (sovereign, disciplinary, and pastoral), which posit nurses as “subjects of power.” These nurses are also “objects of power” in that nursing practice is constrained …

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over …

Silencing Grand Jury Witnesses, R. Michael Cassidy

R. Michael Cassidy

The investigations of local police officers for causing the deaths of unarmed civilians in Ferguson, Missouri and Staten Island, New York have generated significant national discourse about the fairness and transparency of grand jury proceedings. This article addresses one crucial aspect of this ongoing debate; that is, whether witnesses before the grand jury should be allowed to talk to each other and to the media about the contents of their testimony. In the federal system and in the majority of states that still employ the grand jury as an investigative and charging tool, obligations of grand jury secrecy do not …

Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer

Sarah Mourer

This article examines the prosecutor’s and defense attorney’s personal pre-trial beliefs regarding the accused’s guilt or innocence. This analysis suggests that when an attorney does hold pretrial beliefs, such beliefs lead to avoidable bias and errors. These biases may alter the findings throughout all stages of the case. The procedure asking that the prosecution seek justice while having nothing more than probable cause results in the prosecutor’s need to have a belief in guilt before proceeding to trial. While this belief is intended to foster integrity and fairness in the criminal justice system, to the contrary, it actually contributes to …

U.S. Legal Profession Efforts To Combat Money Laundering And Terrorist Financing, Laurel S. Terry

Laurel S. Terry

La Transformación Del Papel Del Abogado Defensor En El Nuevo Sistema De Justicia Penal Mexicano, In Dilemas Contemporáneos Sobre Ejercicio De La Abogacía En México: Colección De Ensayos (Book Chapter), Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.

The Torture Lawyers, Jens David Ohlin

Jens David Ohlin

One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda regarding torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following Article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by …

Plea Bargaining And The Right To The Effective Assistance Of Counsel: Where The Rubber Hits The Road In Capital Cases, John H. Blume

John H. Blume

No abstract provided.

It's A 'Criming Shame': Moving From Land Use Ethics To Criminalization Of Behavior Leading To Permits And Other Zoning Related Acts, Patricia E. Salkin, Bailey Ince

Patricia E. Salkin

In the past, land use ethics inquiries predominately involved conflicts of interest or an official holding public office while engaging in a previously held business or law practice. Now, prosecutors are looking at the underlying criminality of the unethical acts carried out in the context of land use decisions. With a wide array of criminal statutes in the hands of federal prosecutors, almost all forms of unethical conduct could in some way also violate a federal criminal statute.Part II of this article reviews the federal statutes most often used by federal prosecutors and provides some examples of recent reported cases …

Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen

James L. Kainen

The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …

Book Review: Policing And The Poetics Of Everyday Life., Rodger E. Broome Phd

Rodger E. Broome

Policing and the poetics of everyday life. Chicago: University of Illinois Press, 2008. 256 pp. ISBN 978-0-252-03371-1 (cloth). $42.00. Policing and the Poetics of Everyday Life is a hermeneutical-aesthetic analysis within a human scientific approach of modern policing in the United States. It is an important study of police-citizen encounters informed by hermeneutic aesthetic thought and the author’s professional experience as a veteran with a Seattle area police department in Washington, USA.

The Good Fight: The Egocentric Bias, The Aversion To Cognitive Dissonance, And The American Criminal Law, Daniel S. Medwed

Daniel S. Medwed

The phrase “cognitive bias” often has negative connotations. It is something to be overcome, thwarted, or, at best, circumvented. In this essay, I suggest that two interrelated cognitive biases—the egocentric bias and the aversion to cognitive dissonance—might instead serve as potential assets for a criminal law practitioner in persuading her constituencies.

Cyber Security Active Defense: Playing With Fire Or Sound Risk Management?, Sean L. Harrington

Sean L Harrington

Explores contemporary "active defense" techniques in use by private organizations and the legal, regulatory, practical, and business risks associated with each.

"Unnatural Deaths," Criminal Sanctions, And Medical Quality Improvement In Japan, Robert B. Leflar

Robert B Leflar

A worldwide awakening to the high incidence of preventable harm resulting from medical care, combined with pressure on hospitals and physicians from liability litigation, has turned international attention to the need for better structures to resolve medical disputes in a way that promotes medical safety and honesty toward patients. The civil justice system in the United States, in particular, is criticized as inefficient, arbitrary, and sometimes punitive. It is charged with undermining sound medical care by encouraging wasteful expenditures through defensive medicine; by driving information about medical mistakes underground where it escapes analysis, undercutting quality improvement efforts; and by forcing …

Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay

Paul R. Tremblay

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns …

Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom

Robert M. Bloom

A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench’s conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court cases and …

Some Reflections On Ethics And Plea Bargaining: An Essay In Honor Of Fred Zacharias, R. Michael Cassidy

R. Michael Cassidy

In this article the author explores what it means for a prosecutor to “do justice” in a plea bargaining context. Although the vast majority of criminal cases in the United States are resolved by guilty plea rather than by trial, ABA Model Rule 3.8, the special disciplinary rule applicable to prosecutors, has very little to say about plea bargaining. Scrutinizing the multiplicity of interests at stake in plea bargaining, the author suggests that a prosecutor’s primary objectives during negotiations should be efficiency, equality, autonomy, and transparency. After defining each of these terms, the author identifies several troublesome and recurring practices …

Character And Context: What Virtue Theory Can Teach Us About A Prosecutor's Ethical Duty To "Seek Justice.", R. Michael Cassidy

R. Michael Cassidy

A critical issue facing the criminal justice system today is how best to promote ethical behavior by public prosecutors. The legal profession has left much of a prosecutor’s day-to-day activity unregulated, in favor of a general, catch-all admonition to “seek justice.” In this article the author argues that professional norms are truly functional only if those working with a given ethical framework recognize the system’s implicit dependence on character. A code of professional conduct in which this dependence is not recognized is both contentless and corrupting. Building on the ethics of Aristotle and modern philosophers Alasdair MacIntyre and Bernard Williams, …

Toward A More Independent Grand Jury: Recasting And Enforcing The Prosecutor’S Duty To Disclose Exculpatory Evidence, R. Michael Cassidy

R. Michael Cassidy

This Article analyzes the Supreme Court’s decision in Williams, in which the Court struck down an attempt by the Tenth Circuit to impose an obligation on federal prosecutors to disclose substantial exculpatory evidence to the grand jury. The author discusses the contours of this case and the ethical underpinnings of a prosecutor’s disclosure obligations before the grand jury, and sets forth a new framework for consideration of such issues.

The Prosecutor And The Press: Lessons (Not) Learned From The Mike Nifong Debacle, R. Michael Cassidy

R. Michael Cassidy

Using the Mike Nifong disciplinary case in North Carolina as a focal point, the author examines the disciplinary rules pertaining to public speech by attorneys during the pendency of an adjudicatory proceeding. The author argues that in light of the Supreme Court’s 2002 decision in Republican Party of Minnesota v. White, certain provisions of Model Rules of Professional Conduct, Rules 3.6 and 3.8, may violate the first amendment, at least as applied to an elected prosecutor speaking during a political campaign. While former District Attorney Nifong made several statements to the media during the so-called “Duke Lacrosse” investigation that were …

Legal Malpractice, Professional Discipline, And Representation Of The Indigent Defendant, Richard Klein

Richard Daniel Klein

No abstract provided.

Teaching Jewish Law In American Law Schools – Part Ii: An Annotated Syllabus, Samuel J. Levine

Samuel J. Levine

Ordained Rabbi, and professor of law, Samuel J. Levine, presents an annotated syllabus illustrating the structure of a course in Jewish Law. The syllabus is in outline form, organized according to different stages of the course, together with annotations describing the purpose of the materials included in each section. Course sections include: An introduction to the sources and structure of Jewish law; legislation; interpretation, including ritual and civil law; issues in Jewish law that parallel issues in the American legal systems; intersections of Jewish law with other legal systems; and a modern application of Jewish law in the Israeli legal …

Further Reflections On The Role Of Religion In Lawyering And In Life, Samuel J. Levine

Samuel J. Levine

No abstract provided.

Further Reflections On The Role Of Religion In Lawyering And In Life, Samuel J. Levine

Samuel J. Levine

No abstract provided.

Those Who Can't, Teach: What The Legal Career Of John Yoo Tells Us About Who Should Be Teaching Law, Lawrence Rosenthal

Lawrence Rosenthal

Perhaps no member of the legal academy in America is more controversial than John Yoo. For his role in producing legal opinions authorizing what is thought by many to be abusive treatment of detainees as part of the Bush Administration’s “Global War on Terror,” some have called for him to be subjected to professional discipline, others have called for his criminal prosecution. This paper raises a different question: whether John Yoo – and his like – ought to be teaching law.

John Yoo provides something of a case study in the problems in legal education today. As a scholar, Professor …

"Waiving" Goodbye To Rights: Plea Bargaining And The Defense Dilemma Of Competent Representation, Jane Moriarty

Jane Campbell Moriarty

The proposed amendments to the ABA Criminal Justice Standards for Prosecutors and Defense Lawyers (“Proposed Standards”) address a number of problematic issues related to the roles of both prosecutors and defense attorneys. This Symposium Article considers waiver of rights in the context of the Standards, focusing on guilty pleas and the so-called “preconditions” that prosecutors generally require before even entertaining the defendant’s proffer, colloquially termed “Queen for a Day” agreements It reviews the development in the law since 1993, the changes in the practice since that time, and the proposed changes to the Standards. The article focuses on the complex …

Capital Punishments And Religious Arguments: An Intermediate Approach, Samuel J. Levine

Samuel J. Levine

Determining the place and use of capital punishment in the American legal system is a challenging affair and one that is closely associated with and determined by religion's role in American legal decision-making. Both capital punishment and religion are controversial issues, and tend to challenge legal scholars and practitioners about whether they should function together or alone as valid parts of the legal system in the United States. Professor Levine argues that religious arguments should be employed to interpret and explain American legal thought when the need or proper situation arises. He uses capital punishment as an example of how …

Toward A Religious Minority Voice: A Look At Free Exercise Law Through A Religious Minority Perspective, Samuel J. Levine

Samuel J. Levine

Legal scholars have recently advanced theories emphasizing the importance of perspectives in the law. Perspective scholarship recognizes that laws are necessarily shaped by society's dominant forces, including its biases and preconceptions. Perspective scholars attempt to understand how these forces have shaped our laws, and they suggest changes to accommodate those affected by society's biases.

In this Article, Professor Levine introduces the concept of a religious minority perspective. He develops the concept of a religious minority perspective in the context of several, prominent Free Exercise cases. Professor Levine discusses these cases in his presentation of the central themes of a religious …