District Attorneys, Discretion, and Dialogue: How the Culture of a Prosecutor's Office Frames the Relationship Between Superiors and Subordinates

• Publication year: 2022

51 Creighton L. Rev. 729. DISTRICT ATTORNEYS, DISCRETION, AND DIALOGUE: HOW THE CULTURE OF A PROSECUTOR'S OFFICE FRAMES THE RELATIONSHIP BETWEEN SUPERIORS AND SUBORDINATES

DISTRICT ATTORNEYS, DISCRETION, AND DIALOGUE: HOW THE CULTURE OF A PROSECUTOR'S OFFICE FRAMES THE RELATIONSHIP BETWEEN SUPERIORS AND SUBORDINATES

GREGORY J. O'Meara, S.J.

A BASIC FAILING OF THE ENLIGHTENMENT PROJECT WAS ITS INABILITY TO GRASP THE CONCRETENESS AND VARIETY OF HUMAN EXISTENCE. THE IDEA OF HUMANITY WITHERS WHEN A NARROWED CONCEPTION OF REASON BECOMES THE CHIEF VIRTUE AND MAIN CRITERION OF HUMAN ACHIEVEMENT . . . . THE ABSTRACTIONS OF THE ENLIGHTENMENT COULD NOT SEE THE VALUE OF DIVERSITY OR APPRECIATE THE KNOTTY TEXTURE OF THE SOCIAL FABRIC.(fn1)

I. INTRODUCTION

FAILINGS IN LEGAL REASONING ECHO THE FAILINGS OF THE ENLIGHTENMENT PROJECT. THE CREIGHTON LAW REVIEW ASKED ME TO ADDRESS THE RELATION-SHIP BETWEEN SUPERIORS AND SUBORDINATES IN A LEGAL ETHICS CONTEXT. IN THIS PAPER, I consider how this question arose in one of the Oklahoma City Bombing cases. I focus on the Oklahoma State prosecution of Terry Nichols, one of Timothy McVeigh's two co-conspirators, which followed Nichols' federal conviction for conspiracy and manslaughter. I selected this case because eighteen years ago I testified as an expert witness for the defense on the issue of prosecutorial misconduct, and the decision of the appellate court continues to puzzle me years later. This essay examines an unpublished pretrial ruling by the Oklahoma Court of Criminal Appeals on a petition for a Writ of Mandamus filed by Mr. Robert Macy, the Oklahoma City District Attorney. The trial court barred Mr. Macy from the case for professional misconduct and also barred his entire office under a theory of vertical imputation, pur-suant to Model Rules of Professional Conduct(fn2) ("Model Rules"), rule 1.10.(fn3)

The Oklahoma Court of Criminal Appeals disagreed with the trial court's decision to bar Mr. Macy's office. It upheld the lower court's ruling that Macy himself must be removed from the case; however, it permitted his Assistant District Attorneys ("Assistants") to continue the prosecution in which their boss had been excluded for failing to follow the trial court's orders. It is difficult to understand how the ensuing prosecution by the Assistants would not be decisively influ-enced by the direction Mr. Macy had already set. This essay main-tains that the Oklahoma Court of Criminal Appeals failed to appreciate: (1) the role of unreviewable discretion within public prose-cutors' offices and (2) how ethical and legal reasoning occurs only within the politically-charged, dialogical setting of public prosecutors' offices. These structural and rational conditions predict that assistant district attorneys are unlikely to do anything differently from what their elected district attorney superior would do. This paper urges courts to consider how power, discretion, and the way reasoning works can create particular cultures within tight-knit organizations such as prosecutors' offices. This understanding highlights the need for vigi-lant monitoring of process values, including the careful application of conflicts rules, to protect the public against distortions in decision-making by frontline actors in government such as assistant district attorneys.

II. BACKGROUND

On April 19, 1995, Timothy McVeigh, a man known to authorities as an anti-government demonstrator, drove a twenty-foot Ryder truck filled with fertilizer and nitromethane racing fuel to the front of the Alfred P. Murrah Federal Building in Oklahoma City.(fn4) He then used a remote detonating device to trigger an explosion that remains the high watermark of domestic terrorism in the United States.(fn5) A total of 168 people, including 19 children in the building's daycare center, were killed.(fn6) Others suffered debilitating physical injuries that con-tinued to plague them years later.(fn7) Even people who were miles from the blast were subject to psychological and emotional scarring.(fn8) This scarring was rooted in the trauma experienced by friends or simply by being in the vicinity of the explosion.(fn9)

The suspected co-conspirators for this crime were quickly rounded up. By tracing the Vehicle Identification Number of the rear axle of the rental truck found near the blast, agents were able to identify the shop where McVeigh rented the truck under an assumed name.(fn10) The agents were able to tie the assumed name to McVeigh, who was al-ready in custody on unrelated charges.(fn11) Terry Nichols, an acquain-tance of McVeigh's who was in Kansas at the time of the blast, surrendered to federal authorities on April 21, after learning that he was wanted on a material witness warrant.(fn12)

In August 1995, a federal grand jury indicted Timothy McVeigh and Terry Nichols on murder and conspiracy charges. In February 1996, Judge Richard Matsch of the Western District of Oklahoma moved the case against Timothy McVeigh and Terry Nichols from Oklahoma to Denver, Colorado.(fn13) The court found that:

[N]ational media coverage of the explosion was extremely comprehensive. Dramatic pictures of the Murrah Federal Building were shown nationwide immediately after the explo-sion. There was intensive coverage of the rescue efforts. The immediate reactions of the President, the Attorney General, and an FBI spokesman were broadcast across the nation. There were extensive interviews with injured victims, mem-bers of the families of the dead and missing persons, rescue and relief workers, and residents of Oklahoma City.(fn14)

Further, the court noted:

The intensity of the humanization of the victims in the public mind is in sharp contrast with the prevalent portrayals of the defendants. They have been demonized. The videotape foot-age and fixed photographs of Timothy McVeigh . . . have been used regularly in almost all of the television news reports of developments in this case. All of the Oklahoma television markets have been saturated with stories suggesting the de-fendants are associated with "right wing militia groups."(fn15)

The court therefore ruled that "there is so great a prejudice against these defendants in the Western District of Oklahoma that they cannot obtain a fair and impartial trial at any place" in the state.(fn16)

After the case was moved to Denver the defendants were sepa-rated for trial.(fn17) On June 1, 1997, Timothy McVeigh was convicted of murder and conspiracy and later sentenced to death.(fn18) Terry Nichols was convicted of conspiring to bomb the Murrah Federal Building and involuntary manslaughter(fn19) and sentenced to life in prison.(fn20) Only after this federal prosecution did the case at issue in this article arise.

Following the final verdicts in the federal cases, Robert Macy, the elected District Attorney of Oklahoma City, charged Terry Nichols with 160 counts of capital murder under the laws of the State of Oklahoma.(fn21) Because the federal case focused only on victims who were federal employees, double jeopardy law permitted a second state prosecution focusing on victims who were not named in the original charges.(fn22) As a matter of law and policy, Mr. Macy's decision to prose-cute Terry Nichols when he was already serving a sentence of life im-prisonment in the federal system was not outside the scope of Mr. Macy's prosecutorial discretion. Elected district attorneys can surely bring criminal charges for crimes which occur within their jurisdic-tions, and an event this horrifying warranted a prosecutor's attention.

The law prizes "process values." As lawyers, we are committed not only to what is a just legal result, but we are also concerned with how a particular result is reached.(fn23) It is not enough that a course of action be a lawful choice or that a result satisfies the majority of the people concerned; the choice or result must also be carried out in a proper manner. The "how" is just as important as the "what."

Though charged to maintain the public's trust and apply the de-mands of justice in a dispassionate and evenhanded manner, Mr. Macy's public pretrial statements indicated a motivation that went well beyond a commitment that "justice be done."(fn24) Indeed, his state-ments after the state charges were filed, some of which were made in violation of a gag order, were laden with prejudgment, pain, and per-haps a willingness to inflame the passions of the Oklahoma public. For example, as reported by the Tulsa World:

"It was the worst day of my life," Macy said about the bomb-ing. "You should have been down there the first four or five days. There would be no question in your mind . . . . I've sent several people to death row for killing one person. I certainly feel that death would be the appropriate punishment for kill-ing 19 babies."(fn25)

In a signed editorial in The Oklahoman, Macy concluded:

There is only one appropriate sentence which justice de-mands for these murders. While living in prison, Nichols will continue to receive privileges denied many Oklahoma fami-lies. As Dallas and Sharon Davis who lost their little daugh-ter put it in a letter . . . "How can celebrating holidays with his family, letters, telephone calls and the ability to put his arms around his children be called suffering? The victims' (sic) families no longer have this privilege." For violating Oklahoma law Terry Nichols should pay, not merely with his freedom but with his

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