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
SUMMARY

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 lawschool textbooks. The essence of... (see full summary)

 
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1419
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 exerci ses 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.THE DUAL ROLE IN THEORY .................................................. 1426
B.THE DUAL ROLE IN PRACTICE ................................................ 1432
C.THE SHIFT FROM PRIVATE TO PUBLIC PROSECUTION ............... 1435
D.CONTRASTING THE INQUISITORIAL MODEL ............................. 1440
III.THE CASE AGAINST ADVERSARY PROSECUTION .......................... 1443
A.THE PROSECUTOR WIELDS IMMENSE POWER ........................... 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.THE PROSECUTOR HAS AN ABSTRACT CLIENT ........................ 1447
C.THE PROSECUTOR MAKES MORAL CHOICES ........................... 1451
D.THE PROSECUTOR AND THE INVISIBLE HAND .......................... 1453
IV. ALTERNATIVE MODELS OF PROSECUTION ................................... 1456
A.ADVERSARIALISM: THE PROSECUTOR AS COMBATANT .............. 1457
B.POSITIVISM: THE PROSECUTOR AS SECOND JUDGE ................... 1460
C.VALUE WEIGHING: THE PROSECUTOR AS “MINISTER OF
JUSTICE ............................................................................... 1463
D.A DIFFERENT DUAL ROLE: PROSECUTORS AS AGENCIES............ 1468
V.NON-ADVERSARIAL PROSECUTION IN PRACTICE ......................... 1472
A.DETERMINING PROSECUTION VALUES FROM THE OUTSIDE ....... 1473
B.OVERCOMING ADVERSARY INCENTIVES .................................... 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, LETS 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 AMERICAS 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-wrongful-
convictions.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 PROFL CONDUCT r. 3.8 cmt. 1 (AM. BAR ASSN 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: AMERICAS 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 Unco nverted from the Post-
Conviction Pulpit, 84 WASH. L. REV. 35 (2009) (arguing for greater involvement of prosecutors in
investigating wrongful convictions).

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