Legal Ethics and Professional Responsibility Commons^™

Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr

Articles

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct …

A Witness To Justice, Jessica Silbey

Faculty Scholarship

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …

Toward Ethical Plea Bargaining, Erica J. Hashimoto

Scholarly Works

Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

Civil Liability For Aiding And Abetting: Should Lawyers Be "Privileged" To Assist Their Clients' Wrongdoing?, Eugene J. Schiltz

Pace Law Review

No abstract provided.

What Happens In North Minneapolis Doesn’T Stay In North Minneapolis: Arguing Credibility In A Criminal Trial, Rebutting Implicit Jury Bias, And Taking A New Look At Why A Prosecutor Would Tell Jurors That Civilian Witnesses Are From A “Different World”, Joshua R. Larson

School of Law Student Projects

In several recent homicide cases from Minneapolis, Minnesota, prosecutors have used a particular rhetorical device in closing argument that suggests to jurors that certain civilian witnesses from North Minneapolis live in a different world than the jurors do and that, therefore, the jurors must consider the witnesses’ unique cultural characteristics when weighing the witnesses’ credibility. Defense attorneys have decried these “different world” arguments, and the Minnesota Supreme Court has expressed concern that such arguments could violate a defendant’s right to a fair trial by insinuating that the defendant is from a different world and by introducing unnecessary racial or socioeconomic …

Always Be Disclosing: The Prosecutor's Constitutional Duty To Divulge Inadmissible Evidence, Brian D. Ginsberg

West Virginia Law Review

No abstract provided.

The Most Dangerous Power Of The Prosecutor, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This is the James D. Hopkins Memorial Lecture in honor of Judge Hopkins, who was the Dean of Pace Law School from 1982 to 1983 and earlier served with great distinction on the New York Appellate Division's Second Judicial Department. Judge Hopkins served on that court when I worked in the special prosecutor's office, and as head of the appeals bureau, I argued several cases in Judge Hopkins' court. One case stands out, the case of Salvatore Nigrone v. Murtagh. It was an extensive undercover investigation. My office used informants, wiretaps, and a sham arrest to expose corrupt attempts to …

Commenting On Credibility In Kansas: A Constructive Criticism Of State V. Pabst, Steve Leben

Faculty Works

In some respects, this is a cautionary tale about overruling precedent. The Kansas Supreme Court openly overruled its own thirty-two year old precedent in deciding State v. Pabst in 2000. Cautionary tales and precedents aside, this Article is primarily about how trials are conducted, and how much latitude an attorney should have in Kansas to talk directly to jurors in closing argument about all the issues-including witness credibility-that will decide the case. Pabst forced attorneys to change the way they conduct closing arguments. While the result in Pabst was right, the rationale the court used to support the decision was …

Sex Offender As Scapegoat: The Monstrous Other Within, John Douard

NYLS Law Review

No abstract provided.

Decency, Dignity, And Desert: Restoring Ideals Of Humane Punishment To Constitutional Discourse, Eva Nilsen

Faculty Scholarship

American punishment today is degrading, indecent, and harsher than deserved despite a Constitution designed to protect people from cruel and unusual punishment. Unfortunately, the U.S. Supreme Court’s response to the increasing inhumanity of contemporary punishment has been to reduce its Eighth Amendment jurisprudence to tidy categories, legal fictions, and hollow phrases. Absent from the discourse is any acknowledgement of the actual day-to-day experience facing the convicted person, or any suggestion that, although punishments can be degrading, they need not be. The case for treating a convicted person with respect for his human dignity, and for constitutional scrutiny of punishment as …

On Terrorism And Whistleblowing, Michael P. Scharf, Colin T. Mclaughlin

Faculty Publications

At a Bio-Terrorism Conference at Case Western Reserve University School of Law on March 31, 2006, the government participants were asked what they would do if a superior instructed them not to disclose information to the public about the likely grave health affects of an ongoing bio-terrorist attack. In response, they indicated that they would be reluctant to become a "whistleblower." This is not surprising since, despite the federal and state laws that purport to facilitate such whistleblowing for the public good, government whistleblowers routinely have faced loss of promotion, harassment, firing, and in some instances criminal prosecution when they …

The Legal Profession's Failure To Discipline Unethical Prosecutors, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

This article explores the legal profession's failure to hold prosecutors accountable for misconduct and other ethical violations. Part I introduces the piece, providing several examples of prosecutorial power and abuse in the criminal justice system. Part II discusses prosecutorial misconduct and the inadequacy of current legal remedies. Part III argues that the Model Rules of Professional Responsibility have not provided adequate guidance to prosecutors, and that the disciplinary process has not been effective in disciplining prosecutors when they have abused their power and discretion. Part IV contends that the disbarment of Mike Nifong – the prosecutor in the Duke lacrosse …

Litigating Brady V. Maryland: Games Prosecutors Play, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

By any measure, Brady v. Maryland has not lived up to its expectations. Brady's announcement of a constitutional duty on prosecutors to disclose exculpatory evidence to defendants embodies, more powerfully than any other constitutional rule, the core of the prosecutor's ethical duty to seek justice rather than victory. Nevertheless, prosecutors over the years have not accorded Brady the respect it deserves. Prosecutors have violated its principles so often that it stands more as a landmark to prosecutorial indifference and abuse than a hallmark of justice. Moreover, as interpreted by the judiciary, Brady actually invites prosecutors to bend, if not break, …

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

Journal Articles

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 …

The Lawyer's "Conscience" And The Limits Of Persuasion, Abbe Smith

Georgetown Law Faculty Publications and Other Works

As all practicing lawyers know, interviewing and counseling are at the heart of legal representation. This is what lawyers do, even criminal trial lawyers: we talk with and advise clients. Sometimes, after considering the government’s case and available defenses, we advise clients to go to trial. More often, we advise them to take a plea.

In counseling our clients we can be as “client-centered” as the next lawyer, graciously acceding to our clients’ wishes. This is especially so when the client is making what we regard to be a reasonable choice. But clients are not always reasonable. Sometimes they are …

The Year Of Truman Capote: Legal Ethics And In Cold Blood, David S. Caudill

Faculty Publications

The purpose of this study is to use Capote’s In Cold Blood as a point of reflection on several ethical obligations of lawyers. In Part I, I focus on Capote’s accounts of the prosecution’s use of expert witnesses, and his suggestion that defense counsel were (i) unable or unwilling to deal with their personal conflicts of interest and (ii) incompetent, the latter of which became the subject of disciplinary investigations and federal court review. In terms of the duties of an advocate, Capote sees the prosecution as going too far, and the defense as failing to go far enough. In …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Therapeutic Forgetting: The Legal And Ethical Implications Of Memory Dampening, Adam Kolber

Faculty Scholarship

No abstract provided.

Unconscionable Contracting For Indigent Defense: Using Contract Theory To Invalidate Conflict Of Interest Clauses In Fixed-Fee Contracts, Jacqueline Mcmurtie

University of Michigan Journal of Law Reform

Indigent defense remains in crisis and yet constitutional challenges to promote systemic change have met with mixed success. This Article explores the new strategy of applying contract theory and principles to challenge indigent defense contracts that violate the canons of professional responsibility. This Article begins by discussing the author's experience working on cases of indigent defendants whose convictions were overturned through the efforts of the Innocence Project Northwest. The erroneous convictions were facilitated by the indigent defense contract in place at the time of the convictions. Pursuant to this contract, the indigent defense contractor agreed to provide representation in all …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

On The Value Of Prison Visits With Incarcerated Clients Represented On Appeal By A Law School Criminal Defense Clinic, Timothy Everett

Faculty Articles and Papers

No abstract provided.

The Clinician As Ethical Role Model In The Criminal Appellate Litigation Clinic, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

The 'Abuse Excuse' In Capital Sentencing Trials: Is It Relevant To Responsibility, Punishment, Or Neither?, Paul J. Litton

Faculty Publications

The violent criminal who was a victim of severe childhood abuse frequently appears in the responsibility literature because he presents a difficulty for theorists who maintain the compatibility of causal determinism and our practices of holding persons responsible. The challenge is based on the fact that learning about an offender's horrific childhood mitigates the indignation that many persons feel towards him, possibly indicating that they hold him less than fully responsible. Many capital defendants present evidence of suffering childhood abuse, and many jurors find this evidence to count against imposing death. The most obvious explanation for a response like this …

Pursuing Justice For The Mentally Disabled, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …

The Paper Tiger Of Gideon V. Wainwright And The Evisceration Of The Right To Appointment Of Legal Counsel For Indigent Defendants, Amanda Myra Hornung

Cardozo Public Law, Policy & Ethics Journal

The note examines the disparity between the Sixth Amendment's promise of counsel for indigent defendants and the realities of its implementation, arguing that while landmark cases like Gideon v. Wainwright established the right to appointed counsel in state criminal proceedings, significant gaps remain in ensuring effective representation. The analysis highlights systemic issues such as inadequate funding, excessive caseloads, and limited access to resources, which undermine the fairness of criminal trials. The note advocates for increased funding, reduced caseloads, and clearer standards for effective assistance of counsel to fulfill the constitutional guarantee of equal justice.

Reports Of Batson's Death Have Been Greatly Exaggerated: How The Batson Doctrine Enforces A Normative Framework Of Legal Ethics, Laura I. Appleman

ExpressO

In this article, I aim to explain how the Batson procedure enforces a normative framework of legal ethics, a theory which I hope will be of use to both criminal law professors and scholars of legal ethics. Despite many recent prudential attacks against the Batson procedure and the peremptory challenge, I contend that Batson has a largely unarticulated ethical component, one that invokes a lawyer’s professional responsibility. Accordingly, using legal ethics as a lens through which to interpret Batson sheds new light on the doctrine. Batson’s ethical imperative affects the norms of the legal profession itself. By fostering a non-discrimination …

The Ethics Of Cause Lawyering: An Examination Of Criminal Defense Lawyers As Cause Lawyers, Margareth Etienne

ExpressO

Criminal defense attorneys are often motivated by an intricate set of moral and ideological principles that belie their reputations as amoral (if not immoral) “hired guns” who would do anything to get their guilty clients off. Using empirical data from interviews with forty criminal defense attorneys I explore the motivations that inform their decisions to enter the field of criminal defense and the values that influence the manner in which they do their jobs. I conclude that many criminal defense attorneys are in fact cause lawyers who are committed to individual clients but also the “cause” of legal reform in …

Misuse Of The Grand Jury: Forcing A Putative Defendant To Appear And Plead The Fifth Amendment, Aaron M. Clemens

Seattle University Law Review

This article considers the propriety of an indictment of a person who was subpoenaed to testify before a grand jury at which the person invoked the Fifth Amendment privilege against self-incrimination on any questions relevant to the investigation and where the government knew that this person would assert the privilege. Part I explores the prosecutor's power to secure evidence and present it the grand jury. Part II describes how the Fifth Amendment's privilege against self-incrimination limits the prosecutor's power to secure evidence and present it to the grand jury. Part III applies the privilege to a situation where a prosecutor …