Ethical deception by prosecutors.

• Author: Cross, Rebecca B.
• Position: Colorado

INTRODUCTION

Last Spring, the Colorado Supreme Court suspended Assistant District Attorney Mark Pautler for deceitful conduct in securing the surrender of an axe murderer on a killing spree. (1) Although many thought Pautler's conduct was morally acceptable, disciplinary authorities found that he violated ethical rules governing attorney conduct. All states have a rule of ethics that prohibits attorneys from engaging in "dishonesty, fraud, deceit, or misrepresentation." The interpretation of this rule, especially as applied to prosecutors, is unclear and controversial.

Using People v. Pautler (2) as a case study, this Comment sorts through relevant, current interpretations of the rule and proposes an approach for future analysis. Part I discusses the facts leading up to Pautler's disciplinary charges, the opinions of both the disciplinary panel that sanctioned Pautler and the Colorado Supreme Court, which affirmed the sanction, as well as the public response to Pautler's actions. (3) Part II examines how disciplinary authorities treat prosecutorial deception and the role imminent circumstances have in such discipline. (4) Finally, Part III concludes that when prosecutorial deceit does not involve the formal legal process, deceit may be justified if the moral costs are significantly exceeded by the moral benefits. (5)

1. THE PAUTLER CASE

   1. Facts

      Mark Pautler, a deputy district attorney in Jefferson County, Colorado, (6) was at home one Saturday when he was called to one of the most disturbing crime scenes of his career. (7) As he arrived and looked in the door to the townhouse, staring back at him were the eyes of a dead woman sitting duct-taped to a chair surrounded by a pool of blood; her skull was split, blood and pieces of her brain were splattered on the floor, walls, and even the ceiling. (8) Another body was discovered by the fireplace with a blood-filled plastic bag over its head, and a third body, wrapped in garbage bags, was found by the wall nearby. (9)

      A few minutes later, a call came in from the Denver Police Department, informing Pautler that there were three kidnap victims; Pautler then left to interview them. (10) One of these hostages, J.D.Y., had witnessed a murder at the townhouse by a William Lee 'Cody' Neal. (11) Neal had brought J.D.Y., a girlfriend's roommate, to the townhouse saying he had a "surprise" for her. (12) Inside, two women, the owner of the townhouse with whom Neal had been living for two years, and a woman who was supposed to travel with Neal to Las Vegas that weekend, lay dead. (13) Neal tied J.D.Y.'s wrists and ankles spread-eagle to four eye-bolts installed in the floor just for that purpose, cut her clothes off with a knife, and terrorized her by placing a piece of an earlier victim's skull, with bloody hair still attached, on her stomach. (14) He then brought in a third victim, duct-taped her to a chair facing J.D.Y., welcomed her to his "mortuary," gave her a cigarette, fed his cat, (15) asked her "what kind of day she was having," (16) and then killed her by striking her skull repeatedly with an axe as J.D.Y was forced to watch. (17) Then, Neal picked the victim's cigarette up off the floor, smoked it, placed a gun to J.D.Y.'s head, and raped her. (18)

      The next morning, Neal took J.D.Y. to her apartment and held her, her roommate, and a male friend hostage at gunpoint for thirty hours. (19) During this time he made J.D.Y. tell the others what she had seen at the townhouse, (20) and dictated the details of his crime spree into a tape-recorder. (21) He finally left the three hostages with instructions to contact law enforcement and gave them a pager number where he could be reached. (22)

      In the early evening, detectives paged Neal from J.D.Y.'s apartment according to his instructions. (23) Neal returned the call on a cellular phone, from which his location could not be determined, and spoke with Deputy Sheriff Sheryl Zimmerman for over three and one-half hours. (24) Pautler and one other detective were in the apartment and observed the situation. (25) Pautler read notes Zimmerman passed to him, passed suggestions back to her, and kept the others informed of the events. (26) Neal confessed to the three homicides, describing them in detail. (27) Zimmerman developed a rapport with Neal, continuously encouraging him to surrender. (28) Neal's responses were erratic. Although one minute he would talk about turning himself in, the next he would claim that he had already murdered 500 people and would kill again if provoked. (29) At one point, he even indicated that he had seen the officers at the crime scene and could have harmed them if he had wanted to. (30)

      Neal asked to speak to a specific lawyer, whom Pautler thought had left the practice of law but phoned anyway, only to find his number out of service. (31) Neal then asked to speak with a public defender; Zimmerman told him they were contacting one. (32) No one, however, made any attempt to do so. (33) Instead, Pautler discussed with the other law enforcement officers who should pose as public defender. (34) Zimmerman thought that Neal was bright and would be able to sniff out a cop posing as his attorney. (35) Pautler then called his superior, David Thomas, who agreed that extraordinary measures were necessary and decided to speak to Neal himself. (36)

      After telling Neal that public defender "Mark Palmer" had arrived, Zimmerman handed the phone to Pautler. (37) Pautler spoke with Neal for less than seven and one-half minutes, (38) during which Neal, who referred to himself as "one of the most dangerous people you will ever have the chance to represent," called his situation "a friggin' nightmare." (39) He told Pautler he wanted three assurances from the sheriff's department before he would surrender, (40) explaining, "I want to make sure we don't have a three-ring circus. I want you here so you are on my side, on my track." (41) To this Pautler replied, "Right, I'll be present." (42) Pautler dodged Neal's question as to what his rights were, but told him that he believed the sheriff's department would honor his requests. (43)

      A couple of hours later, Neal surrendered in a Target store parking lot and, when advised of his Miranda rights, did not ask to speak with an attorney. (44) He was put in a solitary cell and given the pack of cigarettes. (45) In the days following, when Neal was approached by the public defender's office, he maintained that he was already represented. (46) James Aber, head of the Jefferson County Public Defender's office, took on Neal's representation and learned of the ruse weeks later when he recognized Pautler's voice on tapes of the phone conversation. (47) After several months, Neal dismissed his Public Defender and continued his case pro se, with court-appointed advisory counsel. (48) Neal pleaded guilty to his crimes and was sentenced to death. (49) He later hired Jeff Pagliuca to appeal the guilty plea and death sentence on various grounds, including Pautler's misconduct. (50) Neal is now said to be "sit[ting] in a cell watching TV, and reading about what is happening with Pautler and enjoying every minute of it." (51)

   2. Disciplinary Charges

      In February 2000, Neal's attorney filed a complaint against Pautler with the Colorado Supreme Court's Attorney Regulation Committee, which found reasonable cause to proceed with a formal complaint. (52) Pautler was charged with violating rule 8.4(c) of the Colorado Rules of Professional Conduct, which provides: "It is professional misconduct for lawyers to...(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation." (53)

      In March 2001, there was a trial before a disciplinary panel, consisting of Presiding Disciplinary Judge Keithley and two Hearing Board members. (54) Pautler admitted that his conduct violated the plain wording of Colorado Rules of Professional Conduct Rule 8.4(c), but argued that circumstances, such as fear that Neal might harm others, Neal's unknown location, and the brutal nature of Neal's crimes, justified his actions. (55) If justification or "choice of evils" may be a defense to criminal conduct, Pautler argued that they should be a defense to professional misconduct charges. (56) Pautler also asserted that district attorneys are peace officers authorized to use deception. (57)

      At trial, expert witnesses, including the Jefferson County District Attorney, the Denver District Attorney, and the former Jefferson County Sheriff, were to testify that Pautler's conduct was justified by circumstance. (58) The Denver District Attorney, Bill Ritter, testified that he shared Pautler's concern for public safety: "I'm suggesting that these are extraordinary circumstances when the prosecutor has no choice." (59) Ritter said that he once lied to a gunman who was holding a hostage by promising that he would not prosecute him, but when the gunman surrendered and released the hostage, Ritter still prosecuted. (60)

      Nevertheless, the disciplinary panel rejected these arguments. (61) In the majority opinion, Presiding Judge Keithley, stated that there is no exception to the prohibition on deceit in the state rules of professional conduct, explanatory commentary to the rules, or case law. (62) Judge Keithley explained that "although there is a substantial body of law that allows law enforcement personnel to use artifice and deceit in the exercise of their professional duties," Pautler was not acting in his role as a peace officer, but rather as a lawyer. (63) Therefore, the court reasoned that his conduct should be tested against the rules of conduct applicable to lawyers. (64)

      The defense of "justification" was also rejected as inapplicable to professional misconduct, but to the criminal law setting only. (65) The opinion relied mainly on People v. Reichman, (66) in which a District Attorney filed a fictitious criminal complaint against an undercover officer in order to maintain the officer's undercover status. (67)...