ADVANCED TOPICS IN LEGAL ETHICS
"If the First Amendment will protect a scumbag like me, it will protect all of you." (Larry Flynt)

    This lecture examines the role of a trial system in society, and particularly the special roles of two system players: judges and prosecutors.  As opposed to lawyers in general, judges and prosecutors are supposed to seek justice, not simply pursue law by winning (or losing) cases.  Prosecutors and judges do not serve individual clients.  Their client is the system, or society itself.  Another player, the jury, also represents society, but juries are outsiders to the courtroom workgroup (Eisenstein & Jacob 1977), which consists of regular players with a set of shared norms and values.  Courtroom workgroups determine how fast a case is processed, how much pressure is brought to bear in producing a plea bargain, and how much due process is sacrificed in the name of efficiency.  Yet, there is an institutional quality to our system of justice that transcends the roles.

    A good question to ask is why do we have trials in courthouses?  After all, the technical definition of a "court" is anyplace where disputes are settled.  However, societies have come to invest heavily in the size and stature of their courthouses.  Courthouses are designed to be places of awe and majesty, intentionally presenting the appearance of justice (Rubin 1976).  Socialization and ideology have reinforced this appearance, so we think of courthouses as sacred grounds where nothing but truth and neutrality prevail (Wice 1991).  However, the study of "law in action," a tradition of jurisprudence (also called legal realism) that goes back as far as Roscoe Pound (1870-1964) and continues up through Frank (1949) requires that we look beyond the myth and facade of neutrality. 

THE ETHICS OF JUDGES

    Judges are human, with human failings.  Most Americans (85%) say that judges are honest, but the Center for Judicial Conduct Organizations estimates that every year, 12 judges have to be removed from office for misconduct, another 80 are publicly censured or admonished, and another 150 are privately censured or admonished.  The problem of judicial misconduct exists at all levels.  The Constitution doesn't prohibit the President from nominating someone for a federal judgeship without a legal education or experience as a practicing attorney.  All federal judges are appointed for life, and can only be removed via impeachment.  In addition, Congress cannot lower or modify their salaries.  At the state level, the vast majority of states (28 states) hold elections to select judges.  Half of these states hold "partisan" elections, which requires the judge to identify with a political party and raise campaign money.  The other half hold "nonpartisan" elections which attempt to restrict political influence.  Another eighteen (18) states use nominating commissions, but most combine them with a general election that gives voters a chance to retain them in office (called the Missouri Plan).  Four (4) states allow their governor or legislature to select state judges.  Most state judgeships are for a period of 6-8 years.  No law degree is required for some lower court positions.  No one method of selecting judges has been found to ensure that judges are fair and honest.  It is not uncommon for judges to accept campaign money from attorneys who practice before them, and this should be considered a violation of the Model Code of Judicial Conduct, but that Code must be vague in principle or application.

    A judge has many roles to play.  In the early phases of a trial, the judge acts as a negotiator, and most pretrial decisions are reached by conferences held in the judge's chambers.  These pretrial decisions are often critical, yet the most secretive part of a justice system.  As the date approaches for trial, the judge acts as an administrator, and must handle the calendar of cases, called a courtroom docket.  This not only schedules the trial, but manages the paperwork and time that various courthouse employees must put in on the case.  Most judges have staff personnel assigned to help them, and a few courts have special professionals known as court administrators who handle budgets as well as case flow.  At the trial, the judge acts as a referee and teacher.  They are expected to be an impartial referee between the two opposing sides of a case.  They are not supposed to be too closely interested in the facts of a case, but in how legal (and ethical) each of the two sides are behaving.  For this reason, it is sometimes said the judge is a trier of law.  Throughout the trial, and especially at the end, the judge acts as teacher for the jury (a jury is sometimes called the trier of fact), explaining complicated points of law to the jury, and at the end, giving them an hour or so mini-lesson in law before the jury deliberates on a verdict.  This mini-lesson in law is called the jury instructions, and a judge must be very careful with these so as not to suggest the jury vote a certain way, but also inform them of what evidence needs to be weighted more heavily. 

    A common ethical issue that judges face in their everyday work involves discretionary decisions regarding application of the exclusionary rule.  A judge must personally decide if an error committed by police (and there are almost always errors) is serious enough to trigger suppression of evidence.  If judges adopted a "hypertechnical" by-the-rules approach in stringently applying the exclusionary rule, perhaps no one would ever get convicted of a crime.  If judges are too lax in enforcing the exclusionary rule, chances are that innocent people might get convicted.  Pizzi (1999) also makes the point that the exclusionary rule is a manifestation of the "adversary mentality" that grips American judges and lawyers.

    Another common ethical issue for judges is in the area of sentencing.  Many new judges are not trained in this, and so they develop an on-the-job philosophy, formulated hastily, or else they conform to whatever is the "going rate" for punishments set down by their predecessor.  There is a remarkable lack of consistency between judges in the same jurisdiction, however.  Most attorneys know that "judge shopping" will result in finding a harsher or more lenient judge, whichever is needed.  It may very well be that judges differ on their sentencing patterns for justifiable reasons, but it has long been suspected in criminal justice that variation of this kind is probably most likely due to extralegal, personal reasons like religion, racial or gender bias, age discrimination, or former experience as a prosecutor (e.g., Spohn 2002).  Sentencing disparity is a serious problem, and the system is rife with it.  The following are some negative effects of disparity:

THE ETHICS OF PROSECUTORS

    Prosecutors face enormous problems of backlog, delay, and congestion.  They try to go about their job with dignity, but when courts get behind in their work and then try to speed up, all sorts of careless mistakes happen in what is called assembly-line justice.  Busy prosecutors will drop cases for no reason at all (this is called nolle prosqui) in addition to cases where they think the police have obtained insufficient evidence.  It is suspected that most nolle prosqui cases involve situations where the prosecutor doesn't think a conviction is a sure thing, or slam dunk.  This implies that prosecutors are less concerned about justice, and more concerned about winning cases.  Indeed, it is important that they have a winning record on cases, since the role of prosecutor is a stepping stone to higher elected office.  Prosecutors might also not pursue cases in which no significant political or public stakeholders exist.  Alternatively, if there is stakeholder interest, and the possibility of capturing media attention, more and more prosecutors are willing to "try the case in the media," and make unethical out-of-court statements.

    Prosecutorial discretion has been studied extensively for the reasons why some cases are dropped and others are prosecuted (Jacoby 1979).  These reasons are sometimes called the prosecutor's philosophy, or charging patterns, and there are four of them: (1) legal sufficiency, where the presence of evidence supporting both act and intent means the case is prosecuted; (2) system efficiency, where weak cases are screened out and strong cases may involve overcharging in order to force the system into plea bargain mode; (3) defendant rehabilitation, which describes those rare cases when the prosecutor thinks a defendant can be treated or cured; and (4) trial sufficiency, which is the same as the winnability of the case, or what makes the prosecutor look good.  It is estimated the first and fourth patterns are the most common.  Prosecutors can also grant immunity, and frequently do so, if they think a defendant makes a useful informant in some case against a more important criminal.  Additionally, some prosecutors, like police departments, may pursue assets (under RICO) rather than pursue criminals.  The "take" from asset forfeiture produces millions of dollars every year, and many of the state-level asset forfeiture laws are set up so most of the money gets reinvested in a prosecutor's office.    

    Busy courts also tend to increase their rates of plea bargaining.  Prosecutors regularly overcharge in order to bargain down, and prosecutors hold all the cards in this game.  In addition to the usual sentence bargain which involves a lighter punishment, busy courts may increase the number of charge bargains, which means a serious crime the person is charged with gets renamed as a less serious crime in order to produce a plea bargain and get the case over with.  Both practices jeopardize the safety of the public.  In addition, a stressed-out court component has implications for the rest of the justice system.  Basically, a weak court system makes the rest of the criminal justice system weak, and plea bargaining is perhaps the number one cause of making it weak.  Plea bargaining causes police to make more or less arrests depending upon how busy they perceive the courts to be.  If the courts are too busy, police may let minor offenders go free, but the unlucky ones will experience extra police pressure on obtaining a confession, because police perceive the busy prosecutor only wants slam dunk cases. 

    Prosecutors work under a constraint known as the speedy trial requirement.  The right to a speedy trial was guaranteed by the 6th Amendment, made binding on the states in Klopfer v. North Carolina 1967, made a non-fighting right in Barker v. Wingo 1972, and formalized with the Federal Speedy Trial Act of 1974.  It is essentially a way of starting and stopping the clock.  A federal prosecutor has 30 days from the date of arrest to obtain an indictment or information, and 70 days after that to go to trial.  This means a guarantee of trial in 100 days (the federal standard).  States use a 180 day standard.  Delays attributable to the defendant or their defense attorney (such as motions for continuance) stop the clock from running.  Delays attributable to the prosecutor do not stop the clock.  This inhibits prosecutors from making too many pretrial motions.  Exceptions include a 30-day extension to assemble the grand jury when not in session, and a 110-day extension for locating missing witnesses.  The prosecutor is not an employee of the court.  They are only a representative of the government. People who are employed by the court include the judge, the court reporter (who must type 200 words a minute), the clerk of the court, the bailiff, and the jury (who are temporary employees).  In about 47% of small-town jurisdictions, the prosecutor's job is a part-time occupation, and this creates possible conflicts of interest, for example, when a former private client has to be prosecuted.  Prosecutors, like judges, should recuse themselves from such conflicts of interest, but they rarely do.

    Prosecutors can be considered the chief law enforcement officers of their jurisdiction.  They can investigate even police chiefs and sheriffs, and often do in cases of corruption or organized crime.  They can launch vice investigations, and often have their own small staff of detectives or investigators.  They can order crime lab tests.  They can shop for expert witnesses.  Prosecutors can change the charges against a defendant, mostly for reasons the police have overcharged someone, or charged them with the wrong crime.  Cross-training the personnel of police and prosecutor offices so each party knows what are the most appropriate charges in most cases is the hallmark of a task force approach known as the Maine Plan.  Generally, a prosecutor's office will employ a number of attorneys who assist the chief prosecutor.  If the office is organized so that different assistants specialize in working on different parts of the case, this is known as zone, or horizontal case management.  If the office is organized to that each assistant is a generalist who handles each case from start to finish, this is known as fluid, or vertical case management.  In recent years, vertical case management has become fashionable.  Prosecutors are not supposed to charge someone with more than the evidence allows, a doctrine that results in a great deal of prosecutorial discretion, where charges are lessened or dropped.  Prosecutors also cannot engage in prosecutorial vindictiveness, which occurs if they act harsh simply because a defendant has exercised their right to a time-consuming jury trial.  However, there is a thin line between prosecutorial vindictiveness and zealous prosecution which occurs when expert witnessed are shopped around for, other witnesses are told how to look or how to say something, important evidence is kept from the defense, and all this in addition to the toolkit of courtroom theatrics, games, and tricks.  Prosecutors cannot legally consider court backlog or judicial leniency as factors in deciding whether to drop a case or not.  They cannot ethically consider community sentiments against a defendant who has achieved "celebrity" status in the media, but it would be naive to think that prosecutors don't consider their political future at stake during such times.  Again, it cannot be overemphasized that most prosecutors look upon their job as a stepping stone to higher office; they often want to run for Governor, Congress, or the Presidency one day.  The following is a list from Pollack (2004) of the various types of prosecutorial misconduct:

    Prosecutors get away with misconduct because they can.  The Supreme Court has ruled that prosecutors cannot be subject to civil suits against them, even in cases of the most egregious rule breaking.  Gershman (1991) has documented the lack of adequate controls, and the fact that when defense attorneys file complaints, all that usually happens is that an appeals court finds the problem to be one of "harmless error."  Voters have some control over who becomes a prosecutor, but recall elections for "bad" prosecutors never happen.  Usually, only a major scandal will make a prosecutor (like a judge) resign from office.  However, if the all-too-rare FBI stings like Operation Greylord and Operation Gambit (see No More Greylords?) are any guide, the typical pattern is for such discredited persons to eventually regain employment in the criminal justice system.    

THE ETHICS OF THE ADVERSARY SYSTEM

    An adversary system has four basic components: (1) a neutral decision maker, either a judge or jury; (2) rules on the presentation of evidence; (3) rules about the procedures to be followed; and (4) two sides opposing each other where there is only one clear winner. The assumption, and admittedly it's a big assumption, is that in this setting, truth will emerge as a by-product of opposition between two intensely partisan sides, each of whose goal is to win.  For what it's worth, the adversary system is considered better than most alternatives, particularly compared to what is called the inquisitorial system used in many European and Asian countries. Preservation of the adversary system as it now exists is a conservative force in America that severely limits the chances for legal reform, and its preservation is intended to prevent the possibility of ever becoming an inquisitorial society.  Let's take a brief look at what an inquisitorial system really looks like, as Pizzi (1999) has done, to see what it is that American lawyers are so frightened of.  Every year, American law schools graduate thousands of students who are woefully ignorant, among other things, of the trial systems in countries other than the United States.

    Netherlands -- Like all so-called "inquisitorial" countries, the basic element is an investigative file assembled by the police and other authorities.  This file, or document, is studied by the judges prior to trial, and is freely available to the defendant, defense counsel, and prosecutor.  The file is assumed to be the evidence in the case, and parties are only called to testify about the substance of what is in the file.  There are no penalties for perjury, and the parties can say pretty much what they want about what the file shows and doesn't show.  At the conclusion of the trial, a panel of three professional judges then deliberate, although sometimes one of the judges is an academic or civil servant.  There is no separate sentencing hearing.  All that happens is that the three judges render their sentence and explain how they arrived at their decision; e.g., how any legal issues that arose were decided; how any conflicts in evidence were resolved; and why the sentence is appropriate.  The whole process usually takes no more than two weeks.  There is an appeal process, but again a panel of three judges must unanimously agree on appeal.  The whole system is quite informal, and open rather than secretive over precisely the points that have plagued American justice.

    Germany -- Again, an investigative file is used, and a panel of five judges usually try a case, three of these judges being professionals, and two of these judges being "lay judges" who are elected from the community by the voters.  The lay judges are not allowed to see the investigative file.  One of the professional judges, who has read the file, handles all the questioning at trial (a joint prosecutor-judge role).  The defense attorney must then try to get one of the other judges to agree upon a defense line of questioning.  Witnesses are called in any order that makes the most sense, so there are no sharp demarcations between the prosecution's case in chief and the defense case in chief.  Whichever side get the majority of votes among the judges (a 3-2 decision) wins the case.  Again, the judges explain their verdict, and issue a written document, which becomes the basis for appeal, which almost always requires looking at any alleged errors in the trial process.  The whole system is quite different from the hypertechnical rules which have plagued American justice.

    Norway -- This country uses a two-trial system.  Everyone gets two trials, in case the first one was unfair.  It should be noted that this method is an emerging standard under International Covenants.  Because there are two trials, there is a strong incentive to keep things simply and least costly.  The right to a jury is available, but juries are used in interesting ways.  A jury will consist of ten people where a verdict requires a vote of seven.  A panel of three professional judges exist, and these judges have considerable power over the jury, for example, by summarizing the evidence for them.  Verdicts are not simply "guilty" or "not guilty" but consist of special verdicts in response to questions put to the jury by the judges.  At sentencing, four of the jurors are kept on (the rest dismissed) and along with the judges decide an appropriate sentence.  The whole system is innovative, as opposed to American justice where about the only innovative thing in years has been the "cameras in the courtroom" issue.

INTERNET RESOURCES
ABA Standards for Criminal Justice
American Jury Reform
American Prosecutor's Research Institute
Judicial Watch (Honesty)
Justice at Stake Campaign for Fair State Courts
Model Code of Judicial Conduct
No More Greylords?
Overlawyered Magazine
The Federal Prosecutor's Role (Kid's Page)
The Changing Role of a Judge and its Implications (pdf)
The Culture of Shielding Judicial Colleagues
The Role of the Judge in a Democracy
Twelve Types of Jury Tampering by the Legal Fraternity

PRINTED RESOURCES
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Frank, J. (1949). Courts on Trial: Myth and Reality in American Justice. Princeton: Princeton Univ. Press.
Gershman, B. (1991). "Why Prosecutors Misbehave." Pp. 163-177 in M. Braswell, B. McCarthy & B. McCarthy (eds.) Justice, Crime, and Ethics. Cincinnati: Anderson.
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Wice, Paul. (1991). Judges and Lawyers: The Human Side of Justice. NY: Harper Collins.

Last updated: Sept. 30, 2006
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