Tuesday, April 17, 2018

Have Some Prosecutors Gone Amok?

I am not a prosecutor nor a criminal defense attorney. As an attorney and citizen, however, several recent high profile prosecutions, locally and nationally, have caused me a great deal of concern. Our constitutional system is based on the rule of law and the rule of law is largely based on the protection of the individual citizen from the state. Overly zealous prosecutors--largely unconstrained by budgetary concerns and backed by the enormous power of the government--threaten the rule of law.

Almost 40 years ago at the University of Georgia School of Law, Associate Dean Walter Ray Phillips taught the course on Legal Ethics. We learned that prosecutors have a greater responsibility than doing whatever is necessary to send people to prison. Stated in a very general sense, we learned that prosecutors represent the citizens (and do not, for example, represent the victim) and have special ethical obligations that go beyond the obligations imposed on ordinary attorneys. Put simply and broadly, prosecutors have duty to seek justice.

Recent cases have caused me to wonder if something has changed. After some brief research, it became clear that the standards have not changed much at all. What seems to have changed is the application of the standards (or complete perhaps complete disregard of the standards) in some cases.

The American Bar Association Model Rules of Professional Conduct are adopted by most state bar associations as the rules governing the practice of lawyers in the jurisdiction. Sometimes, they are adopted with amendments or deletions, and not all rules will apply in all jurisdictions. But the Model Rules are significant and they establish generally accepted norms of conduct. 

Without comment, here in the blue type is the full text of ABA Model Rule 3.8, entitled "Special Duties of Prosecutors":

The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
The text of the rule can also be found here
The ABA has also commented on the special role of prosecutors in the legal system. The ABA's Comment 1 to Rule 3.8 provides in part:
A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. The extent of mandated remedial action is a matter of debate and varies in different jurisdictions. 
The ABA Criminal Justice Standards for the Prosecution Function (4th ed.) also provides useful commentary. Section 3-1.2(b) states:
The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.  The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.
A link to this publication can be found here
There are no doubt prosecutors at every level of government who try to meet these standards every day. However, and without commenting on any particular case, anyone who follows the news and is aware of these standards should be very concerned. Simply stated, it appears these rules sometimes (and perhaps often) have been kicked to the gutter in favor of partisanship (on both sides), publicity, or worse.
Dean Phillips at UGA law school taught us well all those years ago. The basic rules have not changed, and it's a shame some have forgotten them or never learned them in the first place. Our legal system and society will not be well served until we expect and demand that all prosecutors live up to these well-established, but sometimes overlooked, standards. The rule of law is simply too important to put in jeopardy.

Monday, April 9, 2018

Ode to an Old Friend

I actually wrote this post two years ago today, on April 9, 2016. I did not publish it until today. My friend who is the subject of the post died weeks after it was written. His name was Hans-Joachim Schreiber. He was a brilliant, good and decent man, and a true friend in every respect.

Growing older can bring perspective, wisdom, and sometimes joy. But it can also bring sadness. Last week, I learned that a dear old friend from Germany has untreatable cancer. He cannot see visitors. There is nothing to be done except to send thoughts and prayers.

It came suddenly. I spoke to him only four or five weeks ago. He had a bad cold, but felt he was getting better, and was planning a trip. I had called more recently to try to arrange a lunch or dinner on an upcoming trip across the pond, and learned the bad news.

It has not yet sunken in for me. He is a true friend. Someone you can always count on. Incredibly intelligent. A true genius, actually. He speaks German as a native language, and is fully fluent in French and English. He actually knows Latin. He knows more about more things, and at a detailed level, than anyone I have known. Always looking to learn new things. He has an amazing sense of humor and remembers every joke he ever heard. We did not get to see each other often, but I always looked forward to seeing him. We talked about life, family, cars, aircraft, inventions, and, yes, legal issues. It was always a good time. I honestly cannot remember ever having a disagreement with him, although there are subjects on which we agreed to disagree. He always seemed like the older brother I never had.

In trying to process this, I have thought about what he would probably say. I imagine it would go something like this: "It's very sad, but there is really nothing to be done. Try to be kind to my wife and family. Remember the good times and me with a smile. Try not to be sad, because it will not accomplish anything. I've had a truly good and interesting life, a wonderful family, and many friends. I would have liked a few more years, but I really can't complain."

A few more thoughts. The Romans said "carpe diem," or seize the day. Psalm 118:24 tells us: "This is the day the Lord has made. Let us rejoice and be glad in it." He is not a religious man, but I think he would agree with the sentiment. We need to try to live and enjoy every day and every interaction with family and friends. You never know if it will happen again.

Here's to you, old friend. You will be greatly and profoundly missed and always remembered. I will try to do that with a smile and not a tear.