The Politics of Ethics

• Citation: Vol. 69 No. 3
• Publication year: 2018

The Politics of Ethics

Laurie L. Levensn

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The Politics of Ethics

by Laurie L. Levenson^*

Introduction

Prosecutors hate being told what to do. As "ministers of justice,"¹ they feel imbued with a moral compass that rarely, if ever, needs tweaking by outsiders. Their mission to protect society and the Constitution provides sufficient guidance. Being told how to be "ethical" is downright insulting for attorneys who already perceive themselves as wearing the white hat. Efforts to create ethical standards to guide a prosecutor's work may be perceived as little more than an unnecessary intrusion upon the prosecutor's independence and personal sense of justice. For some prosecutors, it is unwarranted meddling into the prosecution's business. As former Attorney General Richard Thornburgh once famously said, "[T]he defense bar, with A.B.A. sponsorship, is attempting to use rules of

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professional conduct to stymie criminal investigations and prosecutions."²

Prosecutors are particularly sensitive if it is their adversary who wants to set the ethical standards. Given our adversarial system, this reaction is not surprising. Any efforts to affect the other side's conduct can easily be misperceived as an attempt to gain a tactical advantage. Thus, we should not be surprised when prosecutors chafe at new ethical rules. The very proposals suggest (1) prosecutors have not been ethical enough and (2) their opponents know better how prosecutors should do their jobs. Thus is the politics of ethics.

One of the most significant influences on prosecutors has been the movement to set specific, enforceable ethical standards on prosecutors' discovery obligations. Many prosecutors pride themselves on holding the moral high-ground during trials.³ From the moment they announce that they are representing the public, as opposed to an individual, the message is that the prosecutor's mission is to "seek justice."⁴ It is no surprise that one of the most repeated statements by prosecutors in their handbooks⁵ and pleadings is the famous quote from Berger v. United States:⁶

[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty . . . 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.⁷

This quote is often joined by this oft-cited language regarding the role of the prosecutor: "The prosecutor . . . enters a courtroom to speak for the People and not just some of the People. The prosecutor speaks not solely

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for the victim, or the police, or those who support them, but for all the People."⁸

By contrast, defense lawyers are portrayed as representing only the interests of an individual defendant who may or may not be deserving of public support or sympathy.⁹ Accordingly, prosecutors instinctively react negatively when a governing body, which may be reacting to complaints by the defense bar, seeks to impose ethical standards on them. Unlike rulings from a court, these new ethical standards challenge the core of prosecutors' beliefs that they are already ethically superior to their adversaries, and for some, represent an effort by their adversaries to put them on the defensive. They are—in the prosecutors' eyes—a disruptive influence.

The redrafting of California's ethical rules set the stage for such a contest between prosecutors and defense lawyers in deciding how much control outside bodies should have over prosecutorial practices.¹⁰ Throughout the process, prosecutors were concerned that the State Bar would unnecessarily undermine their work. Unless prosecutors could dominate the decision-making, they were extremely reluctant to accept the new ethical standards.

Prosecutors today, at least in California, dominate those institutions that control the adoption of new ethical standards.¹¹ Whether it be the

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large bar institutions, or even the courts, prosecutors and former prosecutors hold positions of power. A challenge to the bar rules is also, in its own way, a challenge to the control over the profession and its key agencies.¹²

This Article explores how the process of adopting new ethical rules influences prosecutorial behavior. To what extent are new ethical rules a disruptive influence for prosecutors? Why are prosecutors so scared of new ethical standards? How is the governance of the legal profession, especially for those participating in the criminal justice system, affected by reforms in ethical codes?

Part I of this Article chronicles recent efforts in California to adopt an ethical rule requiring prosecutors to disclose all potentially exculpatory information to the defense. California is the last jurisdiction in the United States to adopt such a rule.¹³ The effort was spearheaded by Innocence Projects and defense lawyers.¹⁴ The more-than-three-year campaign was only recently resolved after countless hearings on the

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issue.¹⁵ Throughout the process, many prosecutorial agencies consistently took the position that such a rule was unnecessary because prosecutors already had a constitutional duty under Brady v. Maryland¹⁶ to provide exculpatory evidence that is material to a defendant's guilt or sentencing. The committee redrafting the rules had strong prosecutorial representation, including the former Chief Assistant of the United States Attorney's Office for the Central District of California. The state bar trustees voting on the issue were recently led by a former district attorney; his vice-chair was also a district attorney.¹⁷ Convincing them of the need for the rule, as well as the language that should be used, was a challenging process.

Part II of this Article discusses how politics has played a role in the drafting and enforcement of ethical standards for prosecutors. Fear of adverse rulings by the courts is often insufficient to ensure that prosecutors comply with court and professional conduct rules. Prosecutors know that judges are reluctant to "let the guilty go free" just because the prosecutor has blundered.¹⁸ However, disciplinary hearings are of a different character. A prosecutor's reputation and professional status are on the line, so there can be very real consequences to the prosecutor individually. Accordingly, prosecutors and defense lawyers are keenly aware that the requirements of professional rules of conduct can affect prosecutors.

Finally, Part III offers some proposals addressing the ways defense lawyers can use new ethical rules to combat ongoing problems with prosecutorial misconduct. By focusing on enacting and enforcing ethical rules for prosecutors, defense lawyers can be a positive disruptive force that will lead to more accurate and fairer resolutions of cases.

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I. The Three-Year Battle to Adopt Basic Ethical Rules Governing Prosecutors in California

For more than three years, defense lawyers and other groups representing criminal defendants, such as Loyola Law School's Project for the Innocent, sought to influence the work of prosecutors by promoting the adoption of a new ethical rule requiring California prosecutors to disclose potentially exculpatory information.¹⁹ Despite the adoption of some version of ABA Model Rule 3.8²⁰ governing prosecutorial discovery obligations by all of the other forty-nine states, the United States Virgin Islands, and the District of Columbia, the California State Bar was yet to fully embrace the concept that prosecutors have a special responsibility to provide such discovery.²¹ Perhaps because prosecutors dominated the leadership of the state bar,²² or because prosecutors had such a strong lobby in the state,²³ California's Rules of Professional Conduct went no further than stating that "[a] member [i.e., a lawyer]

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shall not suppress [any] evidence that the member or the member's client has a legal obligation to reveal or to produce."²⁴ Prosecutors argued that the adoption of any ethical rules that impose special disclosure responsibilities upon prosecutors would undermine their ability to serve the public.²⁵

Although some counties have interpreted current California case law to require disclosure of all exculpatory evidence,²⁶ many offices, including the Los Angeles County District Attorney's Office and the U.S. Department of Justice, had not. Rather, they took the position that prosecutors are only required to disclose exculpatory evidence deemed to be "material" to the defense under the postconviction discovery standard of Brady v. Maryland.²⁷ As a result, California has been plagued with wrongful convictions that are the result of prosecutors' failure to recognize and disclose exculpatory evidence.²⁸

In opposing the proposed ethical rule, prosecutors argued that it would be disruptive for prosecutors to worry about disciplinary consequences for their actions.²⁹ It is quite apparent they were less concerned about judges taking action against them than they were about potential state bar disciplinary proceedings using the proposed new ethical rules.³⁰

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Perhaps because of the close relationship between prosecutors and judges,³¹ or because they knew that judges were extremely reluctant to reverse convictions even when there has been a discovery violation, or because of the documented history of judges interpreting rules in favor of prosecutors out of deference to the exigencies of their work,³² prosecutors have been willing to take their chances in front of the judiciary.³³ It was the possibility of a public censure that really scared them, and they were definitely spooked by the idea that defense lawyers might have a say in how their ethics will be evaluated.³⁴

II. Why Were Prosecutors So Worried?³⁵

In some ways, it was surprising that prosecutors were alarmed by the possibility that defense lawyers could play some role in...