Against Adversary Prosecution

• Author: Eric S. Fish
• Position: Federal Public Defender, San Diego, California; Ph.D., Yale Law School, 2017; J.D., Yale Law School, 2011
• Pages: 1419-1481

Against Adversary Prosecution Eric S. Fish * ABSTRACT: American prosecutors are conventionally understood as having two different roles. They seek conviction and punishment as adversary advocates, and they also ensure the system’s fairness as ministers of justice. This Article argues that the former role, prosecutorial adversarialism, should be rejected. It should be written out of ethics codes and removed from law-school textbooks. The essence of adversary lawyering is competitive amorality—an attorney seeks a certain outcome not because it is the best outcome all things considered, but because it counts as a victory for their client. Such competitive amorality cannot be justified for prosecutors. Prosecutors are the most powerful actors in the criminal justice system—they decide what charges are brought and set the terms of plea negotiations. They also represent an abstract client—the state—that exercises no meaningful control over their decisions. In place of adversarialism, this Article proposes an alternative dual role for prosecutors. Where the law constrains them, they should implement the law with professional indifference to outcomes. Where the law leaves them discretion, they should engage in moral deliberation to decide which policies to pursue and be held politically and morally answerable for those policies. The Article also explores how other branches of government can guide prosecutors’ offices in deciding what values to prioritize. I. INTRODUCTION ........................................................................... 1420 II. THE ROLE OF ETHICS OF AMERICAN PROSECUTORS ................... 1426 A. T HE D UAL R OLE IN T HEORY .................................................. 1426 B. T HE D UAL R OLE IN P RACTICE ................................................ 1432 C. T HE S HIFT FROM P RIVATE TO P UBLIC P ROSECUTION ............... 1435 D. C ONTRASTING THE I NQUISITORIAL M ODEL ............................. 1440 III. THE CASE AGAINST ADVERSARY PROSECUTION .......................... 1443 A. T HE P ROSECUTOR W IELDS I MMENSE P OWER ........................... 1444 * Federal Public Defender, San Diego, California; Ph.D., Yale Law School, 2017; J.D., Yale Law School, 2011. This Article is not meant to represent the views of any particular office or institution, only those of the author. 1420 IOWA LAW REVIEW [Vol. 103:1419 B. T HE P ROSECUTOR H AS AN A BSTRACT C LIENT ........................ 1447 C. T HE P ROSECUTOR M AKES M ORAL C HOICES ........................... 1451 D. T HE P ROSECUTOR AND THE I NVISIBLE H AND .......................... 1453 IV. ALTERNATIVE MODELS OF PROSECUTION ................................... 1456 A. A DVERSARIALISM : THE P ROSECUTOR AS C OMBATANT .............. 1457 B. P OSITIVISM : T HE P ROSECUTOR AS S ECOND J UDGE ................... 1460 C. V ALUE W EIGHING : T HE P ROSECUTOR AS “M INISTER OF J USTICE ” ............................................................................... 1463 D. A D IFFERENT D UAL R OLE : P ROSECUTORS AS A GENCIES ............ 1468 V. NON-ADVERSARIAL PROSECUTION IN PRACTICE ......................... 1472 A. D ETERMINING P ROSECUTION V ALUES FROM THE O UTSIDE ....... 1473 B. O VERCOMING A DVERSARY I NCENTIVES .................................... 1477 VI. CONCLUSION .............................................................................. 1480 I. INTRODUCTION In the book Just Mercy , attorney Bryan Stevenson recounts the true story of his long struggle to exonerate Walter McMillian, a man sentenced to death for a murder he did not commit. 1 In one scene of the book, Stevenson meets with the newly elected district attorney for Monroe County, Alabama, where McMillian had been convicted. 2 Hoping to convince the prosecutor to agree to reopen the case, Stevenson describes the (rather overwhelming) evidence he has gathered to show his client’s innocence. After some discussion, the prosecutor angrily replies: “[M]y job is to defend this conviction.” 3 Implicit in this prosecutor’s statement is a particular view of his role: that he is a partisan lawyer tasked with obtaining and preserving convictions. The literature on American prosecutors suggests that this view is commonly held. 4 1 . See generally BRYAN STEVENSON, JUST MERCY: A STORY OF JUSTICE AND REDEMPTION (2014). 2 . Id. at 109–13. 3 . Id. at 110. 4 . See, e.g. , MARK BAKER, D.A.: PROSECUTORS IN THEIR OWN WORDS 78–79, 82 (1999) (“It really came down ultimately to getting a plea or winning a trial so I could go home that day and say, ‘Okay, I won today. That game is over.’”); PAUL BUTLER, LET’S GET FREE: A HIP-HOP THEORY OF JUSTICE 114–18 (2009) (describing how the adversary system derails idealistic prosecutors and turns them into win-seekers); MILTON HEUMANN, PLEA BARGAINING: THE EXPERIENCES OF PROSECUTORS, JUDGES, AND DEFENSE ATTORNEYS 111 (1978) (“What the new prosecutor is taught is that no matter how solid a case he[/she] has, there is always the possibility that he[/she] will lose at trial. And a defeat at trial means total loss . . . .”); NICOLE GONZALEZ VAN CLEVE, CROOK COUNTY: RACISM AND INJUSTICE IN AMERICA’S LARGEST CRIMINAL COURT 70–71, 136–37 (2016); Stanley Z. Fisher, In Search of the Virtuous Prosecutor: A Conceptual Framework , 15 AM. J. CRIM. L. 197, 206–07 (1988); Lara Bazelon, The Innocence Deniers , SLATE (Jan. 10, 2018), https://slate.com/ news-and-politics/2018/01/innocence-deniers-prosecutors-who-have-refused-to-admit-wrongfulconvictions.html. 2018] AGAINST ADVERSARY PROSECUTION 1421 Prosecutors, as well as the general public, see the criminal justice system as an adversarial contest between two sides. 5 The government wins this contest if the defendant is convicted and punished. The government loses if the defendant is acquitted or the conviction is later vacated. Consequently, the prosecutor is expected to advocate zealously for conviction and punishment. This means they must make strategic decisions that will maximize the likelihood of victory, just as a private lawyer would act strategically on behalf of their client. Of course, prosecutors are not supposed to be mere adversaries in our system—they also have a special duty to “seek justice.” The American Bar Association’s (“ABA”) Model Rules of Professional Conduct instruct that “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate,” and that this responsibility entails ensuring “that the defendant is accorded procedural justice.” 6 Prosecutors are thus described as having a “dual role.” 7 They must seek convictions and punishments in an adversary contest, while also working to ensure the fairness of that contest. But these two roles are in conflict with one another. Adversarial lawyering is essentially amoral—it requires acting strategically to win litigation, however the client defines victory, regardless of the lawyer’s own ethical commitments. Seeking justice, however, requires choosing what substantive values to pursue. And so these two roles push prosecutors in different directions. For any particular choice a prosecutor makes in a case—e.g., adding a count, offering plea-bargain terms, revealing evidence to the defendant, fighting a post- 5. Former Attorney General Richard Thornburgh, for example, has described the prosecutor’s job as “constantly pushing the edge of the envelope out to see if you can get an edge for the prosecution” because “[y]ou’re trying to get every edge you can on those people who are devising increasingly more intricate schemes to rip off the public, hiring the best lawyers, providing the best defenses.” Jim McGee, War on Crime Expands U.S. Prosecutors’ Powers , WASH. POST (Jan. 10, 1993), https://www.washingtonpost.com/archive/politics/1993/01/10/war-on-crime-expands-us-prosecutors-powers/867c0d8e-dc55-4918-9c8a-b3bb7ef7f7a4; see also Object Anyway , Radiolab Presents: More Perfect , WNYC (July 15, 2016), https://www.wnycstudios.org/ story/object-anyway (quoting a prosecutor as stating that “there isn’t a prosecutor in the country” that would avoid making a racially motivated peremptory challenge if they thought it would help win them a conviction). Note also that the media commonly refers to convictions as “wins” or “victories” for the prosecution. See, e.g. , Alex Berenson, Prosecutors Score White-Collar Victories , N.Y. TIMES (Apr. 4, 2004), http://www.nytimes.com/2004/04/04/us/prosecutors-score-white-collar-victories.html (“‘The conviction rate in these cases is 85 percent in federal court,’ said Ira Lee Sorkin, a New York defense lawyer and former prosecutor. ‘It’s not hard to win these cases.’”). 6. MODEL RULES OF PROF’L CONDUCT r. 3.8 cmt. 1 (AM. BAR ASS’N 2016). 7 . See, e.g. , Alafair Burke, Prosecution (is) Complex , 10 OHIO ST. J. CRIM. L. 703, 706 (2013) (reviewing DANIEL S. MEDWED, PROSECUTION COMPLEX: AMERICA’S RACE TO CONVICT AND ITS IMPACT ON THE INNOCENT (2012)); R. Michael Cassidy, Character and Context: What Virtue Theory Can Teach Us About a Prosecutor’s Ethical Duty to “Seek Justice , ” 82 NOTRE DAME L. REV. 635, 651 n.125 (2006); Fisher, supra note 4, at 235–41; Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice? , 44 VAND. L. REV. 45, 72 (1991). See generally Daniel S. Medwed, The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-Conviction Pulpit , 84 WASH. L. REV. 35 (2009) (arguing for greater involvement of prosecutors in investigating wrongful convictions). 1422 IOWA LAW REVIEW [Vol. 103:1419 conviction innocence claim—they must decide whether they will strategically maximize their likelihood of victory (which might be defined as securing or preserving a conviction, obtaining a significant punishment, or some other outcome), or instead make room for values like mercy, due process, and proportionality. This tension, combined with the powerful cultural and professional forces that push prosecutors to seek convictions and...