Judicial rhetoric and lawyers' roles.

• Author: Levine, Samuel J.
• Position: Essays in Honor of Professor Robert E. Rodes, Jr.

INTRODUCTION

Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers' ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. (1) In contrast, private attorneys have a duty to zealously represent the best interests of their clients, (2) within ethical bounds, but without taking into account broader notions of pursuing a just outcome. In some ways, criminal defense attorneys have a greater license or duty to engage in zealous representation of the interests of their clients, permitting or requiring them to use tactics that are questionable or prohibited for other private attorneys. (3)

This Essay considers the rhetoric some judges have used to characterize the respective duties of prosecutors and criminal defense attorneys. The Essay suggests that, although this rhetoric often expresses admirable aspirations and ideals, it improperly blurs the lines between the roles different lawyers play within the adversarial system. Specifically, these judges have used language that would seem to place additional limitations on both the methods prosecutors employ in seeking to obtain just convictions and the tactics criminal defense attorneys employ in zealous advocacy of their clients' interests. This Essay concludes that judges should avoid such rhetoric, which has the potential to undermine basic principles of the American legal system.

1. PROSECUTORS

   1. Maloney and Its Precursors

      1. Maloney

         In a highly publicized and widely praised 2014 decision, United States v. Maloney, (4) the United States Court of Appeals for the Ninth Circuit reversed the defendant's conviction on the basis of the prosecutor's improper summation. The path toward reversal was unusual: after the appellate court initially affirmed the conviction, the court heard an appeal en banc, following which the United States Attorney for the Southern District of California filed a Motion to Summarily Reverse the Conviction, Vacate the Sentence and Remand to the District Court. (5) In addition to concluding that the comments made during closing argument constituted reversible error, the U.S. Attorney informed the court of the office's plans to have attorneys view the video of the argument "as a training tool to reinforce the principle that all Assistant U.S. Attorneys must be aware of the rules pertaining to closing argument and must make every effort to stay well within these rules." (6)

         In commending the U.S. Attorney, the court cited a segment of one of the most eloquent and well-known statements from the United States Supreme Court regarding the unique role of prosecutors in the American legal system:

         A prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. (7) The Ninth Circuit also quoted a more contemporary statement, from a 1993 opinion by Judge Alex Kozinski, who joined in the court's opinion in Maloney. "The prosecutor's job isn't just to win, but to win fairly, staying well within the rules." (8) Judge Kozinski's attractive assertion that the prosecutor should "stay[] well within the rules" has been cited in nearly two dozen cases, and not surprisingly--perhaps strategically--the U.S. Attorney in Maloney used this phrase as an indication of the good will the office now exhibits, in acknowledging the wrongfulness of both the summation and its own initial failure to concede error on appeal. (9) In addition, the U.S. Attorney aimed to signal the office's determination not to engage in such misconduct in the future, by instilling in its attorneys a recognition of the importance of remaining "well within the rules."

         Upon closer examination, however, while the Ninth Circuit was presumably correct in commending the U.S. Attorney's willingness to admit error and deter future misconduct, the court's broad rhetoric may raise questions of its own. Specifically, it may not be clear either that, as a doctrinal matter, prosecutors should be expected to remain "well" within the bounds of ethical conduct, or that the quotation from the Supreme Court supports such a contention.

      2. Berger

         It may first be useful to look at the quotation from the United States Supreme Court in its entirety. In Berger v. United States, Justice Sutherland wrote:

         The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. (10) Notably, from this entire statement, the court in Maloney cited--almost selectively--only the first part, emphasizing that the prosecutor's interest is in serving justice, not in winning. (11) It is undoubtedly correct that when the prosecutor is faced with the choice between "winning" and serving justice, justice prevails; this choice, however, is not the norm for most prosecutors in most cases. Instead, as Justice Sutherland continued, the goal--therefore the role--of a prosecutor is typically to convict a defendant in a way that is consistent with the duty to serve justice. (12)

         In fact, while Justice Sutherland's statement is often celebrated for its timeless and cogent reminder that prosecutors have a duty to avoid wrongful motives and tactics, his discussion operates from the premise that prosecutors clearly "should" prosecute with "earnestness and vigor" and "use every legitimate means to bring about a just [conviction]." (13) In short, though Justice Sutherland rightfully insisted that the prosecutor aim to make sure that innocence should not suffer, he made clear that the prosecutor's "twofold" aim also includes the interest that guilt should not escape. (14)

         Given this balance in the prosecutor's role, although it is likewise clear that the prosecutor should stay within ethical bounds, it may not be clear, as Judge Kozinski declared, that the prosecutor should stay "well" within ethical rules, in a way that might weaken the chances of obtaining a proper conviction. (15) That is, if the duty to serve justice includes the duty to ensure that guilt not escape, it would seem unjust for the prosecutor to risk a proper conviction by refraining from using a tactic that is within the rules but not "well"...