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 …

Discovery And Adequate Plea Colloquys, R. Michael Cassidy

R. Michael Cassidy

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 …

The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), J.S. Nelson

J.S. Nelson

Ethical Responsibilities Of Prosecutors After Conviction, R. Michael Cassidy

R. Michael Cassidy

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Stop Blaming The Prosecutors: The Real Causes Of Wrongful Convictions And Rightful Exonerations, And What Should Be Done To Fix Them, Adam Lamparello, Charles E. Maclean, James J. Berles

Adam Lamparello

Wrongfully convicted and rightfully exonerated criminal defendants spent, on average, ten years in prison before exoneration, and the ramifications to the defendants, the criminal justice system, and society are immeasurable.Prosecutorial misconduct, however, is not the primary cause of wrongful convictions. To begin with, although more than twenty million new adult criminal cases are opened in state and federal courts each year throughout the United States, there have been only 1,281 total exonerations over the last twenty-five years. In only six percent of those cases was prosecutorial misconduct the predominant factor resulting in those wrongful convictions. Of course, although prosecutorial misconduct …

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.

Betting Against The (Big) House: Bargaining Away Criminal Trial Rights, Raymond J. Mckoski

Raymond J. McKoski

No abstract provided.

The Perilous Psychology Of Public Defending, Scott Howe

Scott W. Howe

This article examining the ethical challenges confronting most public defender attorneys is framed as a fictional talk presented by P.D. Atty, a former public defender attorney, at a small conference of new public defender attorneys. The presentation asserts that public defenders typically face psychological obstacles to providing zealous advocacy for all of their clients and that an essential aspect of the remedy starts with recognition of these psychological barriers. The author contends that these challenges relate to a typically unacknowledged aversion to representing certain kinds of criminal defendants. Contrary to common supposition, the strongest aversion is not to representation of …

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 …

Prosecutorial Misconduct And The "P" Word, Andrea Lyon

Andrea D. Lyon

No abstract provided.

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.

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

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.

Awho & We The People, Chandra Nath

Chandra Nath

This is the story of a Society created for "welfare" of the veteran ending up denying fundamental, the constitutional and statutory rights of the veteran by the serving General Officers.

Lost In The Compromise: Free Speech, Criminal Justice, And Attorney Pretrial Publicity, Margaret Tarkington

Margaret C Tarkington

Publicity by the prosecution and defense in the criminal proceedings against George Zimmerman again raised the question of the appropriate scope of First Amendment protection for attorney pretrial publicity. The Supreme Court, the Model Rules of Professional Conduct, and many scholars have viewed restrictions on attorney pretrial publicity as a compromise between the constitutional guarantees of free speech and a fair trial. Nevertheless, scholars advocate widely divergent levels of free speech protection for attorney pretrial publicity—ranging from core free speech protection to extremely limited protection. Traditional First Amendment doctrines fail to elucidate the proper scope of free speech rights for …

The Issue Is Being Intersex: The Current Standard Of Care Is A Result Of Ignorance, And It Is Amazing What A Little Analysis Can Conclude., Marla J. Ferguson

marla j ferguson

The Constitution was written to protect and empower all citizens of the United States, including those who are born with Disorders of Sex Development. The medical community, as a whole, is not equipped with the knowledge required to adequately diagnose or treat intersex babies. Intersex simply means that the baby is born with both male and female genitalia. The current method that doctors follow is to choose a sex to assign the baby, and preform irreversible surgery on them without informed consent. Ultimately the intersex babies are mutilated and robbed of many of their fundamental rights; most notably, the right …

Defendants Guilty Of Being Innocent; Prosecutors Guilty Of Being Human, Keith Swisher

Keith Swisher

A published debate between Professor Keith Swisher and the Maricopa County Attorney Bill Montgomery (Phoenix) over prosecutorial ethics in the face of wrongful convictions. The debate focuses on whether the state should adopt ethical rules requiring post-conviction disclosure of expulatory evidence.

"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 …