-
1
-
-
36148937999
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-
Mar. 24, at
-
Samiha Khanna & Anne Blythe, DNA Tests Ordered for Duke Athletes, NEWS & OBSERVER (Raleigh, N.C.), Mar. 24, 2006, at A1.
-
(2006)
DNA Tests Ordered for Duke Athletes, NEWS & OBSERVER (Raleigh, N.C.)
-
-
Khanna, S.1
Blythe, A.2
-
3
-
-
36148974812
-
-
Benjamin Niolet, Anne Blythe & Jane Stancill, Lacrosse Players' Lawyers Object, NEWS & OBSERVER (Raleigh, N.C), Mar. 30, 2006, at A1.
-
Benjamin Niolet, Anne Blythe & Jane Stancill, Lacrosse Players' Lawyers Object, NEWS & OBSERVER (Raleigh, N.C), Mar. 30, 2006, at A1.
-
-
-
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4
-
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36148967804
-
-
Joseph Neff, Duke Lacrosse Files Show Gap in DA's Case, NEWS & OBSERVER (Raleigh, N.C), Aug. 6, 2006, at A1.
-
Joseph Neff, Duke Lacrosse Files Show Gap in DA's Case, NEWS & OBSERVER (Raleigh, N.C), Aug. 6, 2006, at A1.
-
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5
-
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36148957956
-
-
Id
-
Id.
-
-
-
-
6
-
-
36148955171
-
-
Apr. 22, at
-
Michael Biesecker, Benjamin Niolet & Joseph Neff, DA on Spot for Comments, NEWS & OBSERVER (Raleigh, N.C.), Apr. 22,2006, at A1.
-
(2006)
DA on Spot for Comments, NEWS & OBSERVER (Raleigh, N.C.)
-
-
Biesecker, M.1
Niolet, B.2
Neff, J.3
-
7
-
-
36148956272
-
-
Dec. 29, at
-
Matt Dees, Nifong Broke Rules, Bar Alleges, NEWS & OBSERVER (Raleigh, N.C.), Dec. 29, 2006, at A1.
-
(2006)
Nifong Broke Rules, Bar Alleges, NEWS & OBSERVER (Raleigh, N.C.)
-
-
Dees, M.1
-
8
-
-
36148970146
-
Duke Case Prosecutor's Media Whirl Rabes Eyebrows
-
May 2, at
-
Oren Dorell, Duke Case Prosecutor's Media Whirl Rabes Eyebrows, USA TODAY, May 2, 2006, at A2;
-
(2006)
USA TODAY
-
-
Dorell, O.1
-
9
-
-
36148948712
-
-
Apr. 28, at
-
Benjamin Niolet, Rape Case Is a Factor, NEWS & OBSERVER (Raleigh, N.C.), Apr. 28, 2006, at A1.
-
(2006)
Rape Case Is a Factor, NEWS & OBSERVER (Raleigh, N.C.)
-
-
Niolet, B.1
-
10
-
-
36148939955
-
-
By the end of 2006, a host of national and regional newspapers had demanded that Nifong dismiss the charges, recuse himself from the case, or resign from office. E.g., Editorial, As Duke Rape Case Unravels, Focus Turns to Prosecutor, USA TODAY, Dec. 27, 2006, at A12;
-
By the end of 2006, a host of national and regional newspapers had demanded that Nifong dismiss the charges, recuse himself from the case, or resign from office. E.g., Editorial, As Duke Rape Case Unravels, Focus Turns to Prosecutor, USA TODAY, Dec. 27, 2006, at A12;
-
-
-
-
12
-
-
36148970963
-
Investigate the Investigation
-
Dec. 23, at
-
Editorial, Investigate the Investigation, CHARLOTTE OBSERVER, Dec. 23, 2006, at A12;
-
(2006)
CHARLOTTE OBSERVER
-
-
Editorial1
-
13
-
-
36148980911
-
-
Editorial, Newark, N.J, Dec. 30, at
-
Editorial, The Prosecutor Is Guilty, STAR-LEDGER (Newark, N.J.), Dec. 30, 2006, at A22;
-
(2006)
The Prosecutor Is Guilty, STAR-LEDGER
-
-
-
14
-
-
36148962997
-
Prosecutorial Indiscretion
-
Dec. 31, at
-
Editorial, Prosecutorial Indiscretion, WASH. POST, Dec. 31, 2006, at B6.
-
(2006)
WASH. POST
-
-
Editorial1
-
15
-
-
36148950699
-
-
Dec. 3, at
-
Joseph Neff, Benjamin Niolet & Anne Blythe, DA's Critics Ask Bar, Feds to Intervene, NEWS & OBSERVER (Raleigh, N.C.), Dec. 3,2006, at A1.
-
(2006)
DA's Critics Ask Bar, Feds to Intervene, NEWS & OBSERVER (Raleigh, N.C.)
-
-
Neff, J.1
Niolet, B.2
Blythe, A.3
-
16
-
-
36148952235
-
-
See JOAN E. JACOBY, THE AMERICAN PROSECUTOR: A SEARCH FOR IDENTITY, at xxi (1980) (A key characteristic of the American local prosecutor is the independent source of power he exercises as a result of his locally elected status. He enjoys an unreviewable discretionary power to prosecute, a power that has been consistently upheld by the courts.).
-
See JOAN E. JACOBY, THE AMERICAN PROSECUTOR: A SEARCH FOR IDENTITY, at xxi (1980) ("A key characteristic of the American local prosecutor is the independent source of power he exercises as a result of his locally elected status. He enjoys an unreviewable discretionary power to prosecute, a power that has been consistently upheld by the courts.").
-
-
-
-
17
-
-
36148971726
-
-
United States v. Shaw, 226 A.2d 366, 368 (D.C 1967).
-
United States v. Shaw, 226 A.2d 366, 368 (D.C 1967).
-
-
-
-
18
-
-
36148933063
-
-
Martin v. Merola, 532 F.2d 191, 196 (2d Cir. 1976) (Lumbard, J., concurring) (quoting Felix Frankfurter, Letter to the Editor, N.Y. TIMES, Mar. 14, 1941, at 20).
-
Martin v. Merola, 532 F.2d 191, 196 (2d Cir. 1976) (Lumbard, J., concurring) (quoting Felix Frankfurter, Letter to the Editor, N.Y. TIMES, Mar. 14, 1941, at 20).
-
-
-
-
19
-
-
36148996947
-
-
Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 448 (1992).
-
Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 448 (1992).
-
-
-
-
21
-
-
36148981918
-
-
JACOBY, supra note 11, at 195
-
JACOBY, supra note 11, at 195.
-
-
-
-
22
-
-
36148960949
-
-
Robert H. Jackson, Attorney Gen. of the U.S., The Federal Prosecutor, Address at the Second Annual Conference of United States Attorneys (Apr. 1, 1940), in 24 J. AM. JUD. Soc. 18, 18 (1940).
-
Robert H. Jackson, Attorney Gen. of the U.S., The Federal Prosecutor, Address at the Second Annual Conference of United States Attorneys (Apr. 1, 1940), in 24 J. AM. JUD. Soc. 18, 18 (1940).
-
-
-
-
23
-
-
36149001448
-
-
Hugh L. Carey, N.Y. Governor, The Role of a Prosecutor in a Free Society, Speech before the New York State Bar Association (Jan. 30, 1976), in 12 CRIM. L. BULL. 317, 317-18 (1976);
-
Hugh L. Carey, N.Y. Governor, The Role of a Prosecutor in a Free Society, Speech before the New York State Bar Association (Jan. 30, 1976), in 12 CRIM. L. BULL. 317, 317-18 (1976);
-
-
-
-
24
-
-
36148941440
-
Prosecutorial Dbcretion - A Re-Evaluation of the Prosecutor's Unbridled Dbcretion and Its Potential for Abuse, 21
-
John A. Lundquist, Comment, Prosecutorial Dbcretion - A Re-Evaluation of the Prosecutor's Unbridled Dbcretion and Its Potential for Abuse, 21 DEPAUL L. REV. 485, 485 (1972).
-
(1972)
DEPAUL L. REV
, vol.485
, pp. 485
-
-
John, A.1
-
25
-
-
0041172473
-
Decent Restraint of Prosecutorial Power, 94
-
James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521, 1522 (1981).
-
(1981)
HARV. L. REV
, vol.1521
, pp. 1522
-
-
Vorenberg, J.1
-
26
-
-
36148944566
-
-
E.g., Ken Armstrong & Maurice Possley, The Verdict: Dishonor, CHI. TRIB., Jan. 10, 1999, at A1.
-
E.g., Ken Armstrong & Maurice Possley, The Verdict: Dishonor, CHI. TRIB., Jan. 10, 1999, at A1.
-
-
-
-
27
-
-
36148948710
-
-
Id
-
Id.
-
-
-
-
28
-
-
36148969045
-
-
BENNETT L. GERSHMAN, PROSECUTORIAL MISCONDUCT, at vi (2d ed. 2005).
-
BENNETT L. GERSHMAN, PROSECUTORIAL MISCONDUCT, at vi (2d ed. 2005).
-
-
-
-
29
-
-
84888467546
-
-
notes 160-61 and accompanying text
-
See infra notes 160-61 and accompanying text.
-
See infra
-
-
-
30
-
-
84888467546
-
-
notes 116-34 and accompanying text
-
See infra notes 116-34 and accompanying text.
-
See infra
-
-
-
31
-
-
36148996590
-
-
See Alexandra White Dunahoe, Revisiting the Cost-Benefit Calculus of the Misbehaving Prosecutor: Deterrence Economics and Transitory Prosecutors, 61 N.Y.U. ANN. SURV. AM. L. 45, 47 (2005) (noting that [w]hile many commentators view prosecutorial misconduct as pervasive, empirical studies have been less conclusive).
-
See Alexandra White Dunahoe, Revisiting the Cost-Benefit Calculus of the Misbehaving Prosecutor: Deterrence Economics and Transitory Prosecutors, 61 N.Y.U. ANN. SURV. AM. L. 45, 47 (2005) (noting that "[w]hile many commentators view prosecutorial misconduct as pervasive, empirical studies have been less conclusive").
-
-
-
-
33
-
-
36148986540
-
-
Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment. Id. at 87.
-
Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." Id. at 87.
-
-
-
-
34
-
-
36148979064
-
-
Armstrong & Possley, supra note 20
-
Armstrong & Possley, supra note 20.
-
-
-
-
35
-
-
33747495279
-
-
Peter A. Joy, The Relationship Between Prosecutorial Mbconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006 WIS. L. REV. 399, 400.
-
Peter A. Joy, The Relationship Between Prosecutorial Mbconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006 WIS. L. REV. 399, 400.
-
-
-
-
36
-
-
36148937997
-
-
DAVID M. NISSMAN & ED HAGEN, THE PROSECUTION FUNCTION 2 (1982).
-
DAVID M. NISSMAN & ED HAGEN, THE PROSECUTION FUNCTION 2 (1982).
-
-
-
-
37
-
-
36148972163
-
-
James Vorenberg, Narrowing the Discretion of Criminal Justice Officiab, 1976 DUKE LJ. 651, 680.
-
James Vorenberg, Narrowing the Discretion of Criminal Justice Officiab, 1976 DUKE LJ. 651, 680.
-
-
-
-
38
-
-
84858464056
-
-
But see N.C. CONST, art. IV, § 18 (The District Attorney shall advise the officers of justice in his district [and] be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district....).
-
But see N.C. CONST, art. IV, § 18 ("The District Attorney shall advise the officers of justice in his district [and] be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district....").
-
-
-
-
39
-
-
36148979411
-
-
Lundquist, supra note 18, at 490
-
Lundquist, supra note 18, at 490.
-
-
-
-
40
-
-
36148992680
-
-
JACOBY, supra note 11, at 295
-
JACOBY, supra note 11, at 295.
-
-
-
-
41
-
-
36149001799
-
-
JAY DOUGLASS, ETHICAL ISSUES IN PROSECUTION 2 (1988).
-
JAY DOUGLASS, ETHICAL ISSUES IN PROSECUTION 2 (1988).
-
-
-
-
42
-
-
36148940733
-
-
Gershman, supra note 14, at 393
-
Gershman, supra note 14, at 393.
-
-
-
-
43
-
-
36148936853
-
-
Joy, supra note 29, at 400
-
Joy, supra note 29, at 400.
-
-
-
-
44
-
-
36148977682
-
-
KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 207-08 (1969).
-
KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 207-08 (1969).
-
-
-
-
45
-
-
36148973260
-
-
Vorenberg, supra note 19, at 1555
-
Vorenberg, supra note 19, at 1555.
-
-
-
-
46
-
-
36148945337
-
-
DAVIS, supra note 37, at 224
-
DAVIS, supra note 37, at 224.
-
-
-
-
47
-
-
36148984312
-
-
See Vorenberg, supra note 19, at 1522 (The fate of most of those accused of crime is determined by prosecutors, but typically this determination takes place out of public view-in the hallways of the courthouse, in the prosecutors' office, or on the telephone.).
-
See Vorenberg, supra note 19, at 1522 ("The fate of most of those accused of crime is determined by prosecutors, but typically this determination takes place out of public view-in the hallways of the courthouse, in the prosecutors' office, or on the telephone.").
-
-
-
-
48
-
-
36148968527
-
-
Armstrong & Possley, supra note 20;
-
Armstrong & Possley, supra note 20;
-
-
-
-
49
-
-
36148992327
-
-
see also Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 106 (1991) (A prosecutor's ethical breach rarely will appear clearly on the trial record. Often it will be known only to the prosecutor herself.).
-
see also Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 106 (1991) ("A prosecutor's ethical breach rarely will appear clearly on the trial record. Often it will be known only to the prosecutor herself.").
-
-
-
-
50
-
-
36148997735
-
-
Randolph N. Jonakait, The Ethical Prosecutor's Misconduct, 23 CRIM. L. BULL. 550, 562 (1987).
-
Randolph N. Jonakait, The Ethical Prosecutor's Misconduct, 23 CRIM. L. BULL. 550, 562 (1987).
-
-
-
-
51
-
-
36148976174
-
-
See Vorenberg, supra note 19, at 1555 ([Pjrosecutors are not held to anything remotely like what due process would require if they were engaged in an acknowledged rather than a hidden system of adjudication.).
-
See Vorenberg, supra note 19, at 1555 ("[Pjrosecutors are not held to anything remotely like what due process would require if they were engaged in an acknowledged rather than a hidden system of adjudication.").
-
-
-
-
52
-
-
36148974025
-
-
NLSSMAN & HAGEN, supra note 30, at 2
-
NLSSMAN & HAGEN, supra note 30, at 2.
-
-
-
-
53
-
-
36148943274
-
-
Armstrong & Possley, supra note 20
-
Armstrong & Possley, supra note 20.
-
-
-
-
54
-
-
36148976177
-
-
Joy, supra note 29, at 400
-
Joy, supra note 29, at 400.
-
-
-
-
55
-
-
36148996950
-
-
See, e.g, FREEDMAN, supra note 15, 79-98 (describing how the Code of Professional Responsibility and the ABA Standards Relating to the Prosecution Function fail to establish rules of ethical conduct);
-
See, e.g., FREEDMAN, supra note 15, 79-98 (describing how the Code of Professional Responsibility and the ABA Standards Relating to the Prosecution Function fail to establish rules of ethical conduct);
-
-
-
-
56
-
-
36148955170
-
-
Susan W. Brenner & James Geoffrey Durham, Towards Resolving Prosecutor Conflicts of Interest, 6 GEO. J. LEGAL ETHICS 415, 436-68 (1993) (discussing the failure of the ethical codes to address prosecutorial conflicts of interest);
-
Susan W. Brenner & James Geoffrey Durham, Towards Resolving Prosecutor Conflicts of Interest, 6 GEO. J. LEGAL ETHICS 415, 436-68 (1993) (discussing the failure of the ethical codes to address prosecutorial conflicts of interest);
-
-
-
-
57
-
-
0742271260
-
-
Bruce A. Green, Prosecutorial Ethics as Usual, 2003 U. ILL. L. REV. 1573, 1587-97 (2003) (exploring the inadequacies of Model Rule 3.8);
-
Bruce A. Green, Prosecutorial Ethics as Usual, 2003 U. ILL. L. REV. 1573, 1587-97 (2003) (exploring the inadequacies of Model Rule 3.8);
-
-
-
-
58
-
-
36148952612
-
-
H. Richard Uviller, Commentary: The Virtuous Prosecutor in Quest of an Ethical Standard, 71 MICH. L. REV. 1145, 1145-66 (1973) (discussing a number of ethical concerns that prosecutors face and arguing that the ABA ethics projects inadequately deal with these problems);
-
H. Richard Uviller, Commentary: The Virtuous Prosecutor in Quest of an Ethical Standard, 71 MICH. L. REV. 1145, 1145-66 (1973) (discussing a number of ethical concerns that prosecutors face and arguing that the ABA ethics projects inadequately deal with these problems);
-
-
-
-
59
-
-
36148929138
-
-
Zacharias, supra note 41, at 53-66 noting the vagueness of the do justice decree and attempting to provide clarity to the ethical codes
-
Zacharias, supra note 41, at 53-66 (noting the vagueness of the "do justice" decree and attempting to provide clarity to the ethical codes).
-
-
-
-
60
-
-
36148936087
-
-
Brenner & Durham, supra note 47, at 436
-
Brenner & Durham, supra note 47, at 436.
-
-
-
-
61
-
-
36148929522
-
-
ABA CANONS OF PROF'L ETHICS Canon 5 (1908).
-
ABA CANONS OF PROF'L ETHICS Canon 5 (1908).
-
-
-
-
62
-
-
36148953387
-
-
Specifically, the Model Rules require that prosecutors 1) refrain from prosecuting charges that they know are not supported by probable cause; 2) make reasonable efforts to assure the accused has the opportunity to obtain counsel; 3) not seek the waiver of pretrial rights from the accused without legal representation; 4) make timely disclosure of exculpatory evidence; 5) not subpoena defense counsel as a witness except in extenuating circumstances; and 6 refrain from making inflammatory extrajudicial statements regarding the accused. MODEL RULES OF PROF'L CONDUCT R. 3.8 (2003).
-
Specifically, the Model Rules require that prosecutors 1) refrain from prosecuting charges that they know are not supported by probable cause; 2) make "reasonable efforts" to assure the accused has the opportunity to obtain counsel; 3) not seek the waiver of pretrial rights from the accused without legal representation; 4) make timely disclosure of exculpatory evidence; 5) not subpoena defense counsel as a witness except in extenuating circumstances; and 6) refrain from making inflammatory extrajudicial statements regarding the accused. MODEL RULES OF PROF'L CONDUCT R. 3.8 (2003).
-
-
-
-
63
-
-
36148954800
-
-
The commentary to the Model Rules states, A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. Id. cmt. 1.
-
The commentary to the Model Rules states, "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." Id. cmt. 1.
-
-
-
-
64
-
-
36148974027
-
-
Gershman, supra note 14, at 445; Bruce A. Green, Why Should Prosecutors Seek Justice?, 26 FORDHAM URB. L.J. 607, 622 (1999).
-
Gershman, supra note 14, at 445; Bruce A. Green, Why Should Prosecutors Seek Justice?, 26 FORDHAM URB. L.J. 607, 622 (1999).
-
-
-
-
65
-
-
36148970967
-
-
Green, supra note 52, at 622
-
Green, supra note 52, at 622.
-
-
-
-
66
-
-
36148955522
-
-
JACOBY, supra note 11, at xv
-
JACOBY, supra note 11, at xv.
-
-
-
-
67
-
-
36148943631
-
-
Joy, supra note 29, at 416;
-
Joy, supra note 29, at 416;
-
-
-
-
68
-
-
36148942553
-
-
Zacharias, supra note 41, at 106
-
Zacharias, supra note 41, at 106.
-
-
-
-
69
-
-
36148952611
-
-
The chief prosecutor is an elected official in every state except Alaska, Connecticut, and New Jersey. STEVEN W. PERRY, PROSECUTORS IN STATE COURTS, 2005, at 2 (Bureau of Justice Statistics, Bulletin No. NCJ No. 213799, July 2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/psc05.pdf. In the District of Columbia, the chief prosecutor is also unelected.
-
The chief prosecutor is an elected official in every state except Alaska, Connecticut, and New Jersey. STEVEN W. PERRY, PROSECUTORS IN STATE COURTS, 2005, at 2 (Bureau of Justice Statistics, Bulletin No. NCJ No. 213799, July 2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/psc05.pdf. In the District of Columbia, the chief prosecutor is also unelected.
-
-
-
-
70
-
-
36148964844
-
-
Id
-
Id.
-
-
-
-
71
-
-
36148980910
-
In Search of the Virtuous Prosecutor: A Conceptual Framework, 15 AM
-
Stanley Z. Fisher, In Search of the Virtuous Prosecutor: A Conceptual Framework, 15 AM. J. CRIM. L. 197, 205 (1988).
-
(1988)
J. CRIM
, vol.50
, Issue.197
, pp. 205
-
-
Fisher, S.Z.1
-
72
-
-
36148947235
-
-
Monroe H. Freedman, Professional Discipline of Prosecutors: A Response to Professor Zacharias, 30 HOFSTRA L. REV. 121, 125-26 (2001). As Harvard University Professor Alan Dershowitz quipped, Winning has become more important than doing justice. Nobody runs for the Senate saying I did justice.
-
Monroe H. Freedman, Professional Discipline of Prosecutors: A Response to Professor Zacharias, 30 HOFSTRA L. REV. 121, 125-26 (2001). As Harvard University Professor Alan Dershowitz quipped, "Winning has become more important than doing justice. Nobody runs for the Senate saying I did justice."
-
-
-
-
73
-
-
36148940734
-
-
Armstrong & Possley, supra note 20
-
Armstrong & Possley, supra note 20.
-
-
-
-
74
-
-
36148978650
-
-
See Dunahoe, supra note 25, at 49 ([Individual low-level prosecutors are responsible for a significant percentage of prosecutorial misconduct, and, further ... these prosecutors seek primarily to maximize professional gains.).
-
See Dunahoe, supra note 25, at 49 ("[Individual low-level prosecutors are responsible for a significant percentage of prosecutorial misconduct, and, further ... these prosecutors seek primarily to maximize professional gains.").
-
-
-
-
75
-
-
36148969395
-
-
MODEL RULES OF PROF'L CONDUCT R. 3.8 cmt. 1 (2003).
-
MODEL RULES OF PROF'L CONDUCT R. 3.8 cmt. 1 (2003).
-
-
-
-
76
-
-
36148937630
-
-
Walter W. Steele, Jr., Unethical Prosecutors and Inadequate Discipline, 38 SW. L.J. 965, 982 (1985).
-
Walter W. Steele, Jr., Unethical Prosecutors and Inadequate Discipline, 38 SW. L.J. 965, 982 (1985).
-
-
-
-
77
-
-
61449181577
-
The Neutral Prosecutor: The Obligation of Dispassion in a Passionate Pursuit, 68
-
H. Richard Uviller, The Neutral Prosecutor: The Obligation of Dispassion in a Passionate Pursuit, 68 FORDHAM L. REV. 1695, 1697 (2000).
-
(2000)
FORDHAM L. REV
, vol.1695
, pp. 1697
-
-
Richard Uviller, H.1
-
78
-
-
84858478386
-
-
CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 13.10 (1986).
-
CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 13.10 (1986).
-
-
-
-
79
-
-
36148931908
-
-
See Uviller, supra note 62, at 1718 (Passion and dispassion are not cut from the same mentality.);
-
See Uviller, supra note 62, at 1718 ("Passion and dispassion are not cut from the same mentality.");
-
-
-
-
80
-
-
36148970966
-
-
Zacharias, supra note 41, at 104 ([A]sking prosecutors simultaneously to advocate within a process and assure that the process is fair is inherently contradictory-and perhaps hopeless.).
-
Zacharias, supra note 41, at 104 ("[A]sking prosecutors simultaneously to advocate within a process and assure that the process is fair is inherently contradictory-and perhaps hopeless.").
-
-
-
-
81
-
-
36148957236
-
-
See generally Jonakait, supra note 42, at 556 These pressures are omnipresent. They are not aberrations in the system, but part of the system itself. They operate in the routine case on the well-meaning prosecutor, the prosecutor seeking the correct result. The ethical prosecutor is told that he must believe in the defendant's guilt, but the irony is that because he believes that, he is inevitably pushed toward misconduct. The venal prosecutor seeking the wrong result may be a danger, but the forces described here are more dangerous, because they will be strongest on the self-righteous prosecutor, and everything in our criminal justice system compels the prosecutor to believe the rightness of his cause. In other words, these pressures for misconduct come when the prosecutor acts like a prosecutor, internal citation omitted
-
See generally Jonakait, supra note 42, at 556 ("These pressures are omnipresent. They are not aberrations in the system, but part of the system itself. They operate in the routine case on the well-meaning prosecutor, the prosecutor seeking the correct result. The ethical prosecutor is told that he must believe in the defendant's guilt, but the irony is that because he believes that, he is inevitably pushed toward misconduct. The venal prosecutor seeking the wrong result may be a danger, but the forces described here are more dangerous, because they will be strongest on the self-righteous prosecutor, and everything in our criminal justice system compels the prosecutor to believe the rightness of his cause. In other words, these pressures for misconduct come when the prosecutor acts like a prosecutor." (internal citation omitted)).
-
-
-
-
82
-
-
36148975816
-
-
Joy, supra note 29, at 426
-
Joy, supra note 29, at 426.
-
-
-
-
83
-
-
36148966668
-
-
Jackson, supra note 17, at 18
-
Jackson, supra note 17, at 18.
-
-
-
-
84
-
-
26044464922
-
The Professional Discipline of Prosecutors, 79
-
Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C. L. REV. 721, 771 (2001).
-
(2001)
N.C. L. REV
, vol.721
, pp. 771
-
-
Zacharias, F.C.1
-
85
-
-
36148977686
-
-
GERSHMAN, supra note 22, at vi
-
GERSHMAN, supra note 22, at vi.
-
-
-
-
86
-
-
36148990756
-
-
See Lyn M. Morton, Note, Seeking the Elusive Remedy for Prosecutorial Misconduct-Suppression, Dismissal, or Discipline?, 1 GEO. J. LEGAL ETHICS 1083, 1086 (1994) (noting suppression of evidence and dismissal of charges as possible remedies).
-
See Lyn M. Morton, Note, Seeking the Elusive Remedy for Prosecutorial Misconduct-Suppression, Dismissal, or Discipline?, 1 GEO. J. LEGAL ETHICS 1083, 1086 (1994) (noting suppression of evidence and dismissal of charges as possible remedies).
-
-
-
-
87
-
-
36149000278
-
-
DOUGLASS, supra note 34, at 77
-
DOUGLASS, supra note 34, at 77.
-
-
-
-
88
-
-
36148965891
-
-
See Smith v. Phillips, 455 U.S. 209, 219 (1982) ([T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.);
-
See Smith v. Phillips, 455 U.S. 209, 219 (1982) ("[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.");
-
-
-
-
89
-
-
36148988877
-
-
Morton, supra note 70, at 1102 discussing how the exclusionary rule is primarily designated for constitutional violations
-
Morton, supra note 70, at 1102 (discussing how the exclusionary rule is "primarily designated for constitutional violations").
-
-
-
-
90
-
-
36148995160
-
-
See Morton, supra note 70, at 1102 (Ethical rules... were designed to subject attorneys to discipline, not to supply grounds for remedying breaches of the substantive rights of the accused.).
-
See Morton, supra note 70, at 1102 ("Ethical rules... were designed to subject attorneys to discipline, not to supply grounds for remedying breaches of the substantive rights of the accused.").
-
-
-
-
91
-
-
84858470021
-
-
JOSEPH F. LAWLESS, PROSECUTORIAL MISCONDUCT § 13.02 (3d ed. 2003).
-
JOSEPH F. LAWLESS, PROSECUTORIAL MISCONDUCT § 13.02 (3d ed. 2003).
-
-
-
-
92
-
-
84858465842
-
-
See, e.g., GERSHMAN, supra note 22, § 14:9 (discussing the rare use of contempt charges to sanction errant prosecutors);
-
See, e.g., GERSHMAN, supra note 22, § 14:9 (discussing the rare use of contempt charges to sanction errant prosecutors);
-
-
-
-
93
-
-
36148953619
-
-
Gershman, supra note 14, at 454 (rare use of professional discipline);
-
Gershman, supra note 14, at 454 (rare use of professional discipline);
-
-
-
-
94
-
-
36148931482
-
-
Green, supra note 47, at 1585 (rare use of civil liability);
-
Green, supra note 47, at 1585 (rare use of civil liability);
-
-
-
-
95
-
-
36148939220
-
-
Ellen Yaroshefsky, Wrongful Convictions: It Is Time To Take Prosecution Discipline Seriously, 8 D.C L. REV. 275, 291-92 (2005) (rare appellate reversal).
-
Ellen Yaroshefsky, Wrongful Convictions: It Is Time To Take Prosecution Discipline Seriously, 8 D.C L. REV. 275, 291-92 (2005) (rare appellate reversal).
-
-
-
-
96
-
-
36148996591
-
-
Morton, supra note 70, at 1086
-
Morton, supra note 70, at 1086.
-
-
-
-
97
-
-
36148977283
-
-
DOUGLASS, supra note 34, at 77
-
DOUGLASS, supra note 34, at 77.
-
-
-
-
98
-
-
84858478379
-
-
See GERSHMAN, supra note 22, § 14:3 (Under the harmless error rule, appellate courts are authorized to ignore trial errors that did not prejudice the defendant's substantive rights.);
-
See GERSHMAN, supra note 22, § 14:3 ("Under the harmless error rule, appellate courts are authorized to ignore trial errors that did not prejudice the defendant's substantive rights.");
-
-
-
-
99
-
-
36148939954
-
-
Morton, supra note 70, at 1100 (Suppression [under the exclusionary rule] is... reserved for constitutional violations which infringe basic rights of defendants in criminal trials.).
-
Morton, supra note 70, at 1100 ("Suppression [under the exclusionary rule] is... reserved for constitutional violations which infringe basic rights of defendants in criminal trials.").
-
-
-
-
100
-
-
36148971342
-
-
See Zacharias, supra note 41, at 48. (Constitutional appeals neither guide prosecutors who overestimate their obligations to defendants nor effectively rein in overaggressive attorneys.).
-
See Zacharias, supra note 41, at 48. ("Constitutional appeals neither guide prosecutors who overestimate their obligations to defendants nor effectively rein in overaggressive attorneys.").
-
-
-
-
101
-
-
36148944569
-
-
Fisher, supra note 57, at 199 (citing United States v. Skandier, 758 F.2d 43, 44 (1st Cir. 1985)).
-
Fisher, supra note 57, at 199 (citing United States v. Skandier, 758 F.2d 43, 44 (1st Cir. 1985)).
-
-
-
-
102
-
-
36148943630
-
-
United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir. 1946) (Frank, J., dissenting).
-
United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir. 1946) (Frank, J., dissenting).
-
-
-
-
103
-
-
36148983518
-
-
DOUGLASS, supra note 34, at 84
-
DOUGLASS, supra note 34, at 84.
-
-
-
-
104
-
-
36148960208
-
-
Id. at 77;
-
Id. at 77;
-
-
-
-
105
-
-
36148976176
-
-
see also United States v. Lotsch, 102 F.2d 35, 37 (2d Cir. 1939) ([The prosecutor made] plainly an improper remark, and if a reversal would do no more than show our disapproval, we might reverse. Unhappily, it would accomplish little towards punishing the offender, and would upset the conviction of a plainly guilty man.).
-
see also United States v. Lotsch, 102 F.2d 35, 37 (2d Cir. 1939) ("[The prosecutor made] plainly an improper remark, and if a reversal would do no more than show our disapproval, we might reverse. Unhappily, it would accomplish little towards punishing the offender, and would upset the conviction of a plainly guilty man.").
-
-
-
-
106
-
-
70349443742
-
Courtroom Misconduct by Prosecutors and Trial Judges, 50
-
Albert W. Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 TEX. L. REV. 629, 673 (1972).
-
(1972)
TEX. L. REV
, vol.629
, pp. 673
-
-
Alschuler, A.W.1
-
107
-
-
36148970145
-
-
See Vorenberg, supra note 19, at 1523 (But the existence of trials cannot check prosecutorial powers not dependent on trial.).
-
See Vorenberg, supra note 19, at 1523 ("But the existence of trials cannot check prosecutorial powers not dependent on trial.").
-
-
-
-
108
-
-
36148983134
-
-
Steele, supra note 61, at 981
-
Steele, supra note 61, at 981.
-
-
-
-
109
-
-
36148994042
-
-
Newman v. United States, 382 F.2d 479, 480 (D.C Cir. 1967).
-
Newman v. United States, 382 F.2d 479, 480 (D.C Cir. 1967).
-
-
-
-
110
-
-
84858478381
-
-
WOLFRAM, supra note 63, § 13.10.2.
-
WOLFRAM, supra note 63, § 13.10.2.
-
-
-
-
111
-
-
36148938821
-
-
E.g, Green, supra note 47, at 1584-85
-
E.g., Green, supra note 47, at 1584-85
-
-
-
-
112
-
-
36148964481
-
-
(citing NIKI KUCKES, REPORT TO THE ABA COMMISSION ON EVALUATION OF THE RULES OF PROFESSIONAL CONDUCT CONCERNING RULE 3.8 OF THE ABA MODEL RULES OF PROFESSIONAL CONDUCT 8-11 (1999)).
-
(citing NIKI KUCKES, REPORT TO THE ABA COMMISSION ON EVALUATION OF THE RULES OF PROFESSIONAL CONDUCT CONCERNING RULE 3.8 OF THE ABA MODEL RULES OF PROFESSIONAL CONDUCT 8-11 (1999)).
-
-
-
-
113
-
-
36148965638
-
-
Gershman, supra note 14, at 454
-
Gershman, supra note 14, at 454.
-
-
-
-
114
-
-
36148949450
-
-
DOUGLASS, supra note 34, at 77
-
DOUGLASS, supra note 34, at 77.
-
-
-
-
115
-
-
36148938001
-
-
Armstrong & Possley, supra note 20
-
Armstrong & Possley, supra note 20.
-
-
-
-
116
-
-
36148942929
-
-
See Zacharias, supra note 68, at 758 n.130 (surveying the various ways in which state bar associations respond to complaints filed during ongoing proceedings). Although unprecedented, state bar disciplinary charges levied during the middle of a criminal case eventually forced Durham County District Attorney Michael Nifong to ask for a special prosecutor in the Duke Lacrosse case.
-
See Zacharias, supra note 68, at 758 n.130 (surveying the various ways in which state bar associations respond to complaints filed during ongoing proceedings). Although unprecedented, state bar disciplinary charges levied during the middle of a criminal case eventually forced Durham County District Attorney Michael Nifong to ask for a special prosecutor in the Duke Lacrosse case.
-
-
-
-
117
-
-
36148979413
-
-
Jan. 13, at
-
Anne Blythe, Joseph Neff & Michael Biesecker, Nifong Steps Aside, NEWS & OBSERVER (Raleigh, N.C.). Jan. 13, 2007, at A1;
-
(2007)
Nifong Steps Aside, NEWS & OBSERVER (Raleigh, N.C.)
-
-
Blythe, A.1
Neff, J.2
Biesecker, M.3
-
118
-
-
36148984313
-
-
see also infra notes 131-34 and accompanying text. Nifong's downfall, however, may have resulted more from the unique confluence of a number of factors-top-notch defense attorneys, actual innocence, and the need to rehabilitate the reputation of North Carolina's criminal justice system-than any desire of behalf of the state bar to crack down on prosecutorial misconduct.
-
see also infra notes 131-34 and accompanying text. Nifong's downfall, however, may have resulted more from the unique confluence of a number of factors-top-notch defense attorneys, actual innocence, and the need to rehabilitate the reputation of North Carolina's criminal justice system-than any desire of behalf of the state bar to crack down on prosecutorial misconduct.
-
-
-
-
119
-
-
36148957237
-
-
See David Feige, One-Off Offing: Why You Won't See a Disbarment Like Mike Nifong's Again, SLATE, June 18, 2007, http://www.slate.com/id/2168680 ([I]t took a perfect storm of powerful defendants, a rapt public, and demonstrable factual innocence to produce the outcome that ended Mr. Nifong's career.);
-
See David Feige, One-Off Offing: Why You Won't See a Disbarment Like Mike Nifong's Again, SLATE, June 18, 2007, http://www.slate.com/id/2168680 ("[I]t took a perfect storm of powerful defendants, a rapt public, and demonstrable factual innocence to produce the outcome that ended Mr. Nifong's career.");
-
-
-
-
120
-
-
36148989658
-
-
see also Mark Johnson, Disbarment of Nifong Rare Move by Bar: Protection of Peers or Few Violations the Reason?, CHARLOTTE OBSERVER, June 26, 2007, at Al (noting the possible influence of two other high profile cases of prosecutorial misconduct on the state bar's actions).
-
see also Mark Johnson, Disbarment of Nifong Rare Move by Bar: Protection of Peers or Few Violations the Reason?, CHARLOTTE OBSERVER, June 26, 2007, at Al (noting the possible influence of two other high profile cases of prosecutorial misconduct on the state bar's actions).
-
-
-
-
121
-
-
36148963767
-
-
Steele, supra note 61, at 966
-
Steele, supra note 61, at 966.
-
-
-
-
122
-
-
36148982744
-
-
See supra Part I.B.
-
See supra Part I.B.
-
-
-
-
123
-
-
36148964482
-
-
Zacharias, supra note 68, at 738
-
Zacharias, supra note 68, at 738.
-
-
-
-
124
-
-
36148976909
-
-
Professor Zacharias articulates just three areas in which disciplinary authorities are likely to have both the wherewithal and inclination to proceed. Id. They are: (1) pretrial and trial conduct that is specifically forbidden in the codes; (2) engaging in pretrial publicity; and (3) the implementation of prosecutors' obligations to report other lawyers.
-
Professor Zacharias articulates just three areas "in which disciplinary authorities are likely to have both the wherewithal and inclination to proceed." Id. They are: "(1) pretrial and trial conduct that is specifically forbidden in the codes; (2) engaging in pretrial publicity; and (3) the implementation of prosecutors' obligations to report other lawyers."
-
-
-
-
125
-
-
36148974811
-
-
Id
-
Id.
-
-
-
-
126
-
-
36148944568
-
-
Id. at 736 n.62.
-
Id. at 736 n.62.
-
-
-
-
127
-
-
36148935006
-
-
Id at 761
-
Id at 761.
-
-
-
-
128
-
-
36148947236
-
-
See Steele, supra note 61, at 968-69 (Whenever a disciplinary sanction makes it impossible for a prosecutor to function, that sanction has assumed the role of the impeachment process in a way that may very well be contrary to the will of both the electorate and the legislature.).
-
See Steele, supra note 61, at 968-69 ("Whenever a disciplinary sanction makes it impossible for a prosecutor to function, that sanction has assumed the role of the impeachment process in a way that may very well be contrary to the will of both the electorate and the legislature.").
-
-
-
-
129
-
-
36148986543
-
-
Id. at 968 (citing Simpson v. Alabama State Bar, 311 So. 2d 307 (Ala. 1975), and Snyder's Case, 152 A. 33 (Pa. 1930)).
-
Id. at 968 (citing Simpson v. Alabama State Bar, 311 So. 2d 307 (Ala. 1975), and Snyder's Case, 152 A. 33 (Pa. 1930)).
-
-
-
-
130
-
-
84858478378
-
-
42 U.S.C § 1983(2000).
-
42 U.S.C § 1983(2000).
-
-
-
-
131
-
-
36148988127
-
-
U.S
-
Imbler v. Pachtman, 424 U.S. 409 (1976).
-
(1976)
Pachtman
, vol.424
, pp. 409
-
-
Imbler1
-
132
-
-
36148940357
-
-
Id. at 430-31. Ironically, the Court noted a prosecutor's amenability to professional discipline as undermining] the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.
-
Id. at 430-31. Ironically, the Court noted a prosecutor's "amenability to professional discipline" as "undermining] the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime."
-
-
-
-
134
-
-
84963456897
-
-
notes 88-100 and accompanying text
-
See supra notes 88-100 and accompanying text.
-
See supra
-
-
-
135
-
-
36148975047
-
-
E.g, U.S. 259
-
E.g., Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).
-
(1993)
Fitzsimmons
, vol.509
, pp. 269
-
-
Buckley1
-
136
-
-
36148935319
-
-
See Kalina v. Fletcher, 522 U.S. 118, 129-30 (1997) (swearing to the truth of facts in a certification for determination of probable cause);
-
See Kalina v. Fletcher, 522 U.S. 118, 129-30 (1997) (swearing to the truth of facts in a certification for determination of probable cause);
-
-
-
-
137
-
-
36148967424
-
-
Buckley, 509 U.S. at 275, 278 (manufacturing false evidence and making statements to the press);
-
Buckley, 509 U.S. at 275, 278 (manufacturing false evidence and making statements to the press);
-
-
-
-
138
-
-
36148963766
-
-
Burns v. Reed, 500 U.S. 478, 493 (1991) (advising police in the investigative phase of a criminal case).
-
Burns v. Reed, 500 U.S. 478, 493 (1991) (advising police in the investigative phase of a criminal case).
-
-
-
-
139
-
-
36148974810
-
-
Imbler, 424 U.S. at 424-25.
-
Imbler, 424 U.S. at 424-25.
-
-
-
-
140
-
-
36148961303
-
-
Id. at 425
-
Id. at 425.
-
-
-
-
141
-
-
36148961693
-
-
For a critique of the absolute immunity that prosecutors enjoy, see generally Douglas J. McNamara, Buckley, Imbler, and Stare Decisis: The Present Predicament of Prosecutorial Immunity and. an End to its Absolute Means, 59 ALB. L. REV. 1135 (1996).
-
For a critique of the absolute immunity that prosecutors enjoy, see generally Douglas J. McNamara, Buckley, Imbler, and Stare Decisis: The Present Predicament of Prosecutorial Immunity and. an End to its Absolute Means, 59 ALB. L. REV. 1135 (1996).
-
-
-
-
142
-
-
36148964119
-
A Needed Legal Specialty: The Special Prosecutor, 61
-
Lawrence Taylor, A Needed Legal Specialty: The Special Prosecutor, 61 JUDICATURE 220, 221 (1977).
-
(1977)
JUDICATURE
, vol.220
, pp. 221
-
-
Taylor, L.1
-
143
-
-
36148965637
-
-
Id. at 224
-
Id. at 224.
-
-
-
-
144
-
-
36148978049
-
-
See infra Part II.A.
-
See infra Part II.A.
-
-
-
-
145
-
-
36148957579
-
-
See infra Part II.B.
-
See infra Part II.B.
-
-
-
-
146
-
-
36148959430
-
-
See infra Part II.C.
-
See infra Part II.C.
-
-
-
-
147
-
-
84888467546
-
-
notes 122-28 and accompanying text
-
See infra notes 122-28 and accompanying text.
-
See infra
-
-
-
148
-
-
84858478372
-
-
See, e.g., COLO. REV. STAT. § 20-1-107 (2006) (stating that district attorneys may be disqualified upon their own request, at which point the court having criminal jurisdiction may appoint a special prosecutor to prosecute or defend the cause);
-
See, e.g., COLO. REV. STAT. § 20-1-107 (2006) (stating that district attorneys may be disqualified upon their own request, at which point "the court having criminal jurisdiction may appoint a special prosecutor to prosecute or defend the cause");
-
-
-
-
149
-
-
84858465836
-
-
KY. REV. STAT. ANN. § 15.733(4) (2006) (In the event that a prosecuting attorney is disqualified, he shall certify such fact in writing to the Attorney General who may direct another Commonwealth's attorney or county attorney or an assistant attorney general as a special prosecutor to represent the Commonwealth in that proceeding.).
-
KY. REV. STAT. ANN. § 15.733(4) (2006) ("In the event that a prosecuting attorney is disqualified, he shall certify such fact in writing to the Attorney General who may direct another Commonwealth's attorney or county attorney or an assistant attorney general as a special prosecutor to represent the Commonwealth in that proceeding.").
-
-
-
-
150
-
-
84858465835
-
-
N.C GEN. STAT. § 114-11.6 (2006).
-
N.C GEN. STAT. § 114-11.6 (2006).
-
-
-
-
151
-
-
36148980163
-
-
H.B. 670, 1973 Gen. Assem., Reg. Sess. (N.C. 1973).
-
H.B. 670, 1973 Gen. Assem., Reg. Sess. (N.C. 1973).
-
-
-
-
152
-
-
36148990348
-
-
Jan. 14, at
-
Andrea Weigl, State Steps in When Cases Defy the Ordinary, NEWS & OBSERVER (Raleigh, N.C.), Jan. 14,2007, at A12.
-
(2007)
State Steps in When Cases Defy the Ordinary, NEWS & OBSERVER (Raleigh, N.C.)
-
-
Weigl, A.1
-
153
-
-
36148981541
-
-
Id
-
Id.
-
-
-
-
154
-
-
84858464030
-
-
N.C. GEN. STAT. § 114-11.6.
-
N.C. GEN. STAT. § 114-11.6.
-
-
-
-
155
-
-
36148976539
-
-
E. g., LA. CODE CRIM. PROC. ANN. art. 680 (2006).
-
E. g., LA. CODE CRIM. PROC. ANN. art. 680 (2006).
-
-
-
-
156
-
-
36148973661
-
-
See, e.g., Uviller, supra note 47, at 1160 (Of the several formulations directly or indirectly instructing the prosecutor in the ethical imperatives of his calling, none ... has come close to dealing clearly or comprehensively with the problem of conflicting interests.); cf. Brenner & Durham, supra note 47, at 436 (arguing that past attempts to codify prosecutorial ethics have not paid sufficient attention to conflicts of interest).
-
See, e.g., Uviller, supra note 47, at 1160 ("Of the several formulations directly or indirectly instructing the prosecutor in the ethical imperatives of his calling, none ... has come close to dealing clearly or comprehensively with the problem of conflicting interests."); cf. Brenner & Durham, supra note 47, at 436 (arguing that past attempts to codify prosecutorial ethics have not paid sufficient attention to conflicts of interest).
-
-
-
-
157
-
-
36148958730
-
-
Brenner & Durham, supra note 47, at 471-72 (Not having an identifiable client, [the prosecutor] does not have a readily available benchmark to be used in determining whether he has a conflict.).
-
Brenner & Durham, supra note 47, at 471-72 ("Not having an identifiable client, [the prosecutor] does not have a readily available benchmark to be used in determining whether he has a conflict.").
-
-
-
-
158
-
-
36148995579
-
-
Zacharias, supra note 41, at 57
-
Zacharias, supra note 41, at 57.
-
-
-
-
159
-
-
36148943275
-
-
Wright v. United States, 732 F.2d 1048, 1056 (2d Cir. 1984).
-
Wright v. United States, 732 F.2d 1048, 1056 (2d Cir. 1984).
-
-
-
-
160
-
-
36148997736
-
-
See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987) (In a case where a prosecutor represents an interested party, however, the ethics of the legal profession require that an interest other than the Government's be taken into account. Given this inherent conflict in roles, there is no need to speculate whether the prosecutor will be subject to extraneous influence.);
-
See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987) ("In a case where a prosecutor represents an interested party, however, the ethics of the legal profession require that an interest other than the Government's be taken into account. Given this inherent conflict in roles, there is no need to speculate whether the prosecutor will be subject to extraneous influence.");
-
-
-
-
161
-
-
36148945339
-
-
Marshall v. Jerrico, Inc., 446 U.S. 238, 249-50 (1980) (A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.);
-
Marshall v. Jerrico, Inc., 446 U.S. 238, 249-50 (1980) ("A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.");
-
-
-
-
162
-
-
36148974026
-
-
Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967) (affirming the reversal of a domestic dispute conviction when the prosecuting attorney was retained to represent the wife of the defendant in a divorce proceeding).
-
Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967) (affirming the reversal of a domestic dispute conviction when the prosecuting attorney was retained to represent the wife of the defendant in a divorce proceeding).
-
-
-
-
163
-
-
36148966667
-
-
Professors Susan W. Brenner and James Geoffrey Durham differentiate between generic conflicts-that is, those arising from prior representations or personal interests-and systemic conflicts. Brenner & Durham, supra note 47, at 417. The latter are inherent in [a prosecutor's] distinct responsibilities: the political reality of having to please the electorate; the necessity of being an advocate; and the ethical requirement of being an 'administrator of justice.'
-
Professors Susan W. Brenner and James Geoffrey Durham differentiate between "generic conflicts"-that is, those arising from prior representations or personal interests-and "systemic conflicts." Brenner & Durham, supra note 47, at 417. The latter are "inherent in [a prosecutor's] distinct responsibilities: the political reality of having to please the electorate; the necessity of being an advocate; and the ethical requirement of being an 'administrator of justice.'"
-
-
-
-
164
-
-
36148973262
-
-
Id
-
Id.
-
-
-
-
165
-
-
36148995977
-
United States, 341 F.2d 417
-
Azzone v. United States, 341 F.2d 417, 419 (8th Cir. 1965);
-
(1965)
419 (8th Cir
-
-
Azzone1
-
166
-
-
36148942177
-
-
United States v. Terry, 806 F. Supp. 490, 497 (S.D.N.Y. 1992) ([T]he undisputed fact that Abrams sought to obtain political gain from his prosecution of Terry is not enough to disqualify him.).
-
United States v. Terry, 806 F. Supp. 490, 497 (S.D.N.Y. 1992) ("[T]he undisputed fact that Abrams sought to obtain political gain from his prosecution of Terry is not enough to disqualify him.").
-
-
-
-
167
-
-
36148967041
-
-
Commentators have advanced a similar argument regarding the inadequacy of the existing ethical obligations of prosecutors. See Vorenberg, supra note 19, at 1545, S]uch limits are likely to be no stronger than the determination of the men and women who abide by them to limit their own discretion, Thus, in effect, states that vest the sole means of appointing a special prosecutor with the district attorney are preserving the ethical status quo, that is, self-regulation
-
Commentators have advanced a similar argument regarding the inadequacy of the existing ethical obligations of prosecutors. See Vorenberg, supra note 19, at 1545 ("[S]uch limits are likely to be no stronger than the determination of the men and women who abide by them to limit their own discretion."). Thus, in effect, states that vest the sole means of appointing a special prosecutor with the district attorney are preserving the ethical status quo - that is, self-regulation.
-
-
-
-
168
-
-
36148934607
-
-
See Brenner & Durham, supra note 47, at 444 (The prosecutor... is faced with making the decision [to withdraw] on his own, followed by the political reality of having to make his reasons for withdrawal public, thus placing his decision in the political arena.).
-
See Brenner & Durham, supra note 47, at 444 ("The prosecutor... is faced with making the decision [to withdraw] on his own, followed by the political reality of having to make his reasons for withdrawal public, thus placing his decision in the political arena.").
-
-
-
-
169
-
-
36148993688
-
-
John Stevenson & Adam Playford, Nifong: Some Criticism May Be Justified, HERALDSUN (Durham, N.C), July 29, 2006, at A1.
-
John Stevenson & Adam Playford, Nifong: Some Criticism May Be Justified, HERALDSUN (Durham, N.C), July 29, 2006, at A1.
-
-
-
-
170
-
-
36148979413
-
-
Jan. 14, at
-
Anne Blythe & Jim Nesbitt, Lacrosse Case in State Hands, NEWS & OBSERVER (Raleigh, N.C.), Jan. 14, 2007, at A1.
-
(2007)
Lacrosse Case in State Hands, NEWS & OBSERVER (Raleigh, N.C.)
-
-
Blythe, A.1
Nesbitt, J.2
-
171
-
-
36148986899
-
Attorney General in North Carolina Agrees to Take Duke Case
-
Jan. 14, at
-
Duff Wilson, Attorney General in North Carolina Agrees to Take Duke Case, N.Y. TIMES, Jan. 14, 2007, at A20.
-
(2007)
N.Y. TIMES
-
-
Wilson, D.1
-
172
-
-
84980146115
-
Letter to the Editor
-
June 13, at
-
James E. Coleman, Jr., Letter to the Editor, Special Prosecutor Should Take Over Duke Case, NEWS & OBSERVER (Raleigh, N.C.), June 13, 2006, at A10.
-
(2006)
Special Prosecutor Should Take Over Duke Case, NEWS & OBSERVER (Raleigh, N.C.)
-
-
Coleman Jr., J.E.1
-
173
-
-
84858465831
-
-
E.g., W. VA. CODE § 7-7-8 (2006) (If, in any case, the prosecuting attorney and his assistants are unable to act, or if in the opinion of the court it would be improper for him or his assistants to act, the court shall appoint some competent practicing attorney.).
-
E.g., W. VA. CODE § 7-7-8 (2006) ("If, in any case, the prosecuting attorney and his assistants are unable to act, or if in the opinion of the court it would be improper for him or his assistants to act, the court shall appoint some competent practicing attorney.").
-
-
-
-
174
-
-
36148971724
-
-
See Paul Lowell Haines, Note, Restraining the Overly Zealous Advocate: Time for Judicial Intervention, 65 IND. L.J. 445, 462 (1990) (Inherent judicial powers are those powers not expressly granted to the courts by a constitution but recognized to exist merely because they are necessary for the court's proper functioning.... The court... must have the powers necessary to maintain its integrity as an institution.).
-
See Paul Lowell Haines, Note, Restraining the Overly Zealous Advocate: Time for Judicial Intervention, 65 IND. L.J. 445, 462 (1990) ("Inherent judicial powers are those powers not expressly granted to the courts by a constitution but recognized to exist merely because they are necessary for the court's proper functioning.... The court... must have the powers necessary to maintain its integrity as an institution.").
-
-
-
-
175
-
-
36148936454
-
-
See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227 (1821) (Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution.).
-
See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227 (1821) ("Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution.").
-
-
-
-
176
-
-
36148936086
-
Private Challenges to Prosecutorial Inaction: A Model Declaratory Judgment Statute, 97
-
Stuart P. Green, Private Challenges to Prosecutorial Inaction: A Model Declaratory Judgment Statute, 97 YALE L.J. 488, 493 (1988).
-
(1988)
YALE L.J
, vol.488
, pp. 493
-
-
Green, S.P.1
-
177
-
-
84858478368
-
-
Eg., TENN. CONST, art. 6, § 5;
-
Eg., TENN. CONST, art. 6, § 5;
-
-
-
-
178
-
-
84858470006
-
-
ALA. CODE § 12-17-186 (2006);
-
ALA. CODE § 12-17-186 (2006);
-
-
-
-
179
-
-
84858464028
-
-
COLO. REV. STAT. § 16-5-209 (2006);
-
COLO. REV. STAT. § 16-5-209 (2006);
-
-
-
-
180
-
-
84858478362
-
-
MICH. COMP. LAWS § 767.41 (2006);
-
MICH. COMP. LAWS § 767.41 (2006);
-
-
-
-
181
-
-
84858470007
-
-
NEB. REV. STAT. § 29-1606 (2006);
-
NEB. REV. STAT. § 29-1606 (2006);
-
-
-
-
182
-
-
84858470009
-
-
N.D. CENT. CODE § 11-16-06 (2006);
-
N.D. CENT. CODE § 11-16-06 (2006);
-
-
-
-
183
-
-
84858478363
-
-
PA. CONS. STAT. § 1409 (2006);
-
PA. CONS. STAT. § 1409 (2006);
-
-
-
-
184
-
-
84858464027
-
-
WIS. STAT. § 968.26 (2006);
-
WIS. STAT. § 968.26 (2006);
-
-
-
-
185
-
-
84858478364
-
-
see also MINN. STAT. § 388.12 (2006) (allowing a district court judge to appoint an attorney to assist or serve in place of the county attorney). In State ex rel. Wild v. Otis, 257 N.W.2d 361 (Minn. 1977), the Minnesota Supreme Court suggested that, under the relevant statute, [ajrguably, a private citizen could petition the district court for action... and the court could appoint a special prosecutor if it decided that this was necessary.
-
see also MINN. STAT. § 388.12 (2006) (allowing a district court judge to appoint an attorney to assist or serve in place of the county attorney). In State ex rel. Wild v. Otis, 257 N.W.2d 361 (Minn. 1977), the Minnesota Supreme Court suggested that, under the relevant statute, "[ajrguably, a private citizen could petition the district court for action... and the court could appoint a special prosecutor if it decided that this was necessary."
-
-
-
-
187
-
-
36148978048
-
-
Id
-
Id.
-
-
-
-
188
-
-
36148956271
-
-
See Comment, Private Prosecution: A Remedy for District Attorneys' Unwarranted Inaction, 65 YALE L.J. 209, 215 (1955) (Following a showing by a private citizen that the public prosecutor has abused his discretion through inaction or improper action, the court would have the power to appoint a privately hired attorney to act as the public prosecutor for a single action.).
-
See Comment, Private Prosecution: A Remedy for District Attorneys' Unwarranted Inaction, 65 YALE L.J. 209, 215 (1955) ("Following a showing by a private citizen that the public prosecutor has abused his discretion through inaction or improper action, the court would have the power to appoint a privately hired attorney to act as the public prosecutor for a single action.").
-
-
-
-
189
-
-
84858465818
-
-
W. VA. CODE § 7-7-8 (2006).
-
W. VA. CODE § 7-7-8 (2006).
-
-
-
-
190
-
-
36148949448
-
-
State ex rel. Preissler v. Dostert, 260 S.E.2d 279, 287 (W. Va. 1979).
-
State ex rel. Preissler v. Dostert, 260 S.E.2d 279, 287 (W. Va. 1979).
-
-
-
-
191
-
-
36148953618
-
-
State ex rel. Brown v. Merrifield, 389 S.E.2d 484, 487 (W. Va. 1990).
-
State ex rel. Brown v. Merrifield, 389 S.E.2d 484, 487 (W. Va. 1990).
-
-
-
-
192
-
-
84963456897
-
-
notes 125-26 and accompanying text
-
See supra notes 125-26 and accompanying text.
-
See supra
-
-
-
193
-
-
36148997356
-
-
See United States v. Shaw, 226 A.2d 366, 368 (D.C 1967) (The trial court should remember that the District Attorney's office is not a branch of the court, subject to the court's supervision. It is a part of the executive department, separate and apart from the judicial department.).
-
See United States v. Shaw, 226 A.2d 366, 368 (D.C 1967) ("The trial court should remember that the District Attorney's office is not a branch of the court, subject to the court's supervision. It is a part of the executive department, separate and apart from the judicial department.").
-
-
-
-
194
-
-
36148949088
-
-
In re Padget, 678 P.2d 870, 873-74 (Wyo. 1984).
-
In re Padget, 678 P.2d 870, 873-74 (Wyo. 1984).
-
-
-
-
195
-
-
36148977684
-
-
Green, supra note 138, at 504
-
Green, supra note 138, at 504.
-
-
-
-
196
-
-
36149001800
-
-
In lieu of [pjrivate challenge statutes that allow courts to order a prosecutor to proceed or to appoint a special prosecutor to take his place, which he rejects as constitutionally unsound, id. at 498,
-
In lieu of "[pjrivate challenge statutes that allow courts to order a prosecutor to proceed or to appoint a special prosecutor to take his place," which he rejects as "constitutionally unsound," id. at 498,
-
-
-
-
197
-
-
36148967040
-
-
Green advocates for the courts to issue declaratory judgments that a prosecutor has abused his discretion not to prosecute, creating public pressure on the prosecutor and giving the plaintiff political leverage, id. at 489
-
Green advocates for the courts to issue declaratory judgments that a prosecutor has abused his discretion not to prosecute, creating "public pressure" on the prosecutor and giving the plaintiff "political leverage," id. at 489.
-
-
-
-
198
-
-
36148993046
-
-
Gershman, supra note 14, at 409;
-
Gershman, supra note 14, at 409;
-
-
-
-
199
-
-
36148961692
-
-
Steele, supra note 61, at 981
-
Steele, supra note 61, at 981.
-
-
-
-
200
-
-
84858465505
-
-
note 22, §
-
GERSHMAN, supra note 22, § 14:9.
-
supra
, vol.14
, pp. 9
-
-
GERSHMAN1
-
201
-
-
84858470002
-
-
Eg., CAL. GOV'T CODE § 12550 (2006).
-
Eg., CAL. GOV'T CODE § 12550 (2006).
-
-
-
-
202
-
-
84858465824
-
-
Eg., WASH. REV. CODE § 43.10.090 (2006).
-
Eg., WASH. REV. CODE § 43.10.090 (2006).
-
-
-
-
203
-
-
84858478358
-
-
CAL. GOV'T CODE § 12550.
-
CAL. GOV'T CODE § 12550.
-
-
-
-
204
-
-
36148977683
-
-
Attorney General May Supersede District Attorneys in Justices' Courts Prosecutions as Well as Those in Superior Courts, 46 Op. Att'y Gen. Cal. 385 (1947).
-
Attorney General May Supersede District Attorneys in Justices' Courts Prosecutions as Well as Those in Superior Courts, 46 Op. Att'y Gen. Cal. 385 (1947).
-
-
-
-
205
-
-
84858464022
-
-
Eg., COLO. REV. STAT. § 24-31-101(1)(a) (2006);
-
Eg., COLO. REV. STAT. § 24-31-101(1)(a) (2006);
-
-
-
-
206
-
-
84858478349
-
-
McKinney
-
N.Y. EXEC. LAW § 63(2) (McKinney 2006).
-
(2006)
LAW §
, vol.63
, Issue.2
-
-
EXEC., N.Y.1
-
208
-
-
36148973261
-
-
See, e.g., Johnson v. Pataki, 691 N.E.2d 1002, 1003 (N.Y. 1997) (supersession in a potential death penalty case);
-
See, e.g., Johnson v. Pataki, 691 N.E.2d 1002, 1003 (N.Y. 1997) (supersession in a potential death penalty case);
-
-
-
-
209
-
-
36149001044
-
-
Mulroy v. Carey, 396 N.Y.S.2d 929, 929-30 (N.Y. App. Div. 1977), aff d, 373 N.E.2d 369, 369 (N.Y. 1977) (supersession in an investigation involving allegations of corruption among public officials).
-
Mulroy v. Carey, 396 N.Y.S.2d 929, 929-30 (N.Y. App. Div. 1977), aff d, 373 N.E.2d 369, 369 (N.Y. 1977) (supersession in an investigation involving allegations of corruption among public officials).
-
-
-
-
211
-
-
36148963376
-
-
Johnson, 691 N.E.2d at 1005.
-
Johnson, 691 N.E.2d at 1005.
-
-
-
-
213
-
-
36148988493
-
-
See, e.g., 1894 PUBLIC PAPERS OF GOVERNOR FLOWER 66-67.
-
See, e.g., 1894 PUBLIC PAPERS OF GOVERNOR FLOWER 66-67.
-
-
-
-
214
-
-
36148996235
-
-
Robert M. Pitler, Superseding the District Attorneys in New York City - The Constitutionality and Legality of Executive Order No. 55, 41FORDHAM L. REV. 517,522 (1973).
-
Robert M. Pitler, Superseding the District Attorneys in New York City - The Constitutionality and Legality of Executive Order No. 55, 41FORDHAM L. REV. 517,522 (1973).
-
-
-
-
215
-
-
36148953617
-
-
Lawrence T. Kurlander & Valerie Friedlander, Perilous Executive Power-Perspective on Special Prosecutors in New York, 16 HOFSTRA L. REV. 35,49 n.103 (1987).
-
Lawrence T. Kurlander & Valerie Friedlander, Perilous Executive Power-Perspective on Special Prosecutors in New York, 16 HOFSTRA L. REV. 35,49 n.103 (1987).
-
-
-
-
216
-
-
84858478359
-
-
N.Y. COMP. CODES R. & REGS. tit. 9A, §§ 3.14, 3.31, 3.42, 3.50, 3.78 (2006).
-
N.Y. COMP. CODES R. & REGS. tit. 9A, §§ 3.14, 3.31, 3.42, 3.50, 3.78 (2006).
-
-
-
-
217
-
-
84858464023
-
-
Id. §§ 4.83, 4.89, 4.106, 4.110, 4.115, 4.122, 4.124, 4.128, 4.138, 4.144, 4.165, 4.174, 4.175, 4.180, 4.183, 4.184. Neither Governor Carey nor Governor Cuomo's tallies include any appointments made pursuant to §§ 1.55-.59, in which Governor Rockefeller ordered the Attorney General to investigate and prosecute public corruption in New York City beginning in 1972. After eighteen years, Governor Cuomo terminated those orders in 1990. Id. § 4.139.
-
Id. §§ 4.83, 4.89, 4.106, 4.110, 4.115, 4.122, 4.124, 4.128, 4.138, 4.144, 4.165, 4.174, 4.175, 4.180, 4.183, 4.184. Neither Governor Carey nor Governor Cuomo's tallies include any appointments made pursuant to §§ 1.55-.59, in which Governor Rockefeller ordered the Attorney General to investigate and prosecute public corruption in New York City beginning in 1972. After eighteen years, Governor Cuomo terminated those orders in 1990. Id. § 4.139.
-
-
-
-
218
-
-
84858469999
-
-
Id §§ 5.6, 5.9, 5.27, 5.42.
-
Id §§ 5.6, 5.9, 5.27, 5.42.
-
-
-
-
219
-
-
84858464016
-
-
Id. §§ 1.55-.59.
-
Id. §§ 1.55-.59.
-
-
-
-
220
-
-
84858469996
-
-
Id, § 4.89. For a detailed summary of the Howard Beach incident, in which surviving victims of a racial attack refused to cooperate in an investigation due to mistrust of the police and local district attorney, a stalemate that eventually required the governor to appoint a special prosecutor to handle the investigation, see Kurlander & Friedlander, supra note 162, at 56-58
-
Id, § 4.89. For a detailed summary of the "Howard Beach incident," in which surviving victims of a racial attack refused to cooperate in an investigation due to mistrust of the police and local district attorney, a stalemate that eventually required the governor to appoint a special prosecutor to handle the investigation, see Kurlander & Friedlander, supra note 162, at 56-58.
-
-
-
-
221
-
-
84858465816
-
-
N.Y. COMP. CODES R. & REGS. tit. 9A, § 5.27.
-
N.Y. COMP. CODES R. & REGS. tit. 9A, § 5.27.
-
-
-
-
222
-
-
36148997732
-
-
See Maurice H. Nadjari, New York State's Office of the Special Prosecutor: A Creation Born of Necessity, 1 HOFSTRA L. REV. 97, 116 (1974) (The Attorney General could also undertake investigation and prosecution of misconduct by a district attorney, if the Governor issues an Executive Order superseding the district attorney's local prosecutorial power.).
-
See Maurice H. Nadjari, New York State's Office of the Special Prosecutor: A Creation Born of Necessity, 1 HOFSTRA L. REV. 97, 116 (1974) ("The Attorney General could also undertake investigation and prosecution of misconduct by a district attorney, if the Governor issues an Executive Order superseding the district attorney's local prosecutorial power.").
-
-
-
-
223
-
-
36148947963
-
-
Carey, supra note 18, at 317-18
-
Carey, supra note 18, at 317-18.
-
-
-
-
224
-
-
36148969393
-
-
Id. at 323
-
Id. at 323.
-
-
-
-
225
-
-
36148983132
-
-
Id. at 318
-
Id. at 318.
-
-
-
-
226
-
-
36148975815
-
-
Pitler, supra note 161, at 545
-
Pitler, supra note 161, at 545.
-
-
-
-
227
-
-
84963456897
-
-
notes 145-47 and accompanying text
-
See supra notes 145-47 and accompanying text.
-
See supra
-
-
-
228
-
-
84963456897
-
-
notes 129-34 and accompanying text
-
See supra notes 129-34 and accompanying text.
-
See supra
-
-
-
229
-
-
84963456897
-
-
notes 160-61 and accompanying text
-
See supra notes 160-61 and accompanying text.
-
See supra
-
-
-
230
-
-
84963456897
-
-
notes 116-34 and accompanying text
-
See supra notes 116-34 and accompanying text.
-
See supra
-
-
-
231
-
-
36148993045
-
-
Johnson v. Pataki, 691 N.E.2d 1002, 1016 (N.Y. 1997) (Smith, J., dissenting).
-
Johnson v. Pataki, 691 N.E.2d 1002, 1016 (N.Y. 1997) (Smith, J., dissenting).
-
-
-
-
232
-
-
84963456897
-
-
notes 72-73 and accompanying text
-
See supra notes 72-73 and accompanying text.
-
See supra
-
-
-
233
-
-
36148968154
-
-
Taylor, supra note 109, at 224
-
Taylor, supra note 109, at 224.
-
-
-
-
234
-
-
33745300095
-
-
See, note 20, their written opinions, appeals courts rarely name prosecutors, even those found to have acted abominably
-
See Armstrong & Possley, supra note 20 ("In their written opinions, appeals courts rarely name prosecutors, even those found to have acted abominably.").
-
supra
-
-
Armstrong1
Possley2
-
235
-
-
84963456897
-
-
note 126 and accompanying text
-
See supra note 126 and accompanying text.
-
See supra
-
-
-
236
-
-
36148963374
-
-
Taylor, supra note 109, at 221
-
Taylor, supra note 109, at 221.
-
-
-
-
237
-
-
36148990755
-
-
Carey, supra note 18, at 323
-
Carey, supra note 18, at 323.
-
-
-
-
238
-
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FREEDMAN, supra note 15, at 93
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FREEDMAN, supra note 15, at 93.
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239
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In Oregon v. Kennedy, 456 U.S. 667 (1982), the Supreme Court stated that the bar of double jeopardy under the United States Constitution only attached in situations in which a prosecutor's misconduct was intended to goad the defendant into moving for a mistrial in the first trial. Id. at 676. Thus. Professor Gershman notes:
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In Oregon v. Kennedy, 456 U.S. 667 (1982), the Supreme Court stated that the bar of double jeopardy under the United States Constitution only attached in situations in which a prosecutor's misconduct was intended to "goad" the defendant into moving for a mistrial in the first trial. Id. at 676. Thus. Professor Gershman notes:
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prosecutor with a weak or damaged case is encouraged to commit prejudicial conduct. If he gets away with it, he has a better chance of winning. If the defendant objects, and succeeds in obtaining a mistrial, the prosecutor will be able to retry the defendant with a better-prepared case
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[A] prosecutor with a weak or damaged case is encouraged to commit prejudicial conduct. If he gets away with it, he has a better chance of winning. If the defendant objects, and succeeds in obtaining a mistrial, the prosecutor will be able to retry the defendant with a better-prepared case ....
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241
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note 14, at, The appointment of a special prosecutor in these cases could limit this abuse
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Gershman, supra note 14, at 440. The appointment of a special prosecutor in these cases could limit this abuse.
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supra
, pp. 440
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Gershman1
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242
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Alan Hirsch, The Tragedy of False Confessions (And a Common Sense Proposal), 81 N.D. L. REV. 343, 348-50 (2005) (reviewing MARGARET EDDS, AN EXPENDABLE MAN: THE NEAR-EXECUTION OF EARL WASHINGTON JR. (2003)). Specifically, [w]hen a credible case of DNA exoneration is made, responsibility for the defendant should automatically be transferred to a different office from that which prosecuted him. Id. at 349.
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Alan Hirsch, The Tragedy of False Confessions (And a Common Sense Proposal), 81 N.D. L. REV. 343, 348-50 (2005) (reviewing MARGARET EDDS, AN EXPENDABLE MAN: THE NEAR-EXECUTION OF EARL WASHINGTON JR. (2003)). Specifically, "[w]hen a credible case of DNA exoneration is made, responsibility for the defendant should automatically be transferred to a different office from that which prosecuted him." Id. at 349.
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243
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84858464018
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See N.Y. COMP. CODES R. & REGS. tit. 9A, § 5.27 (2006) (executive order requiring Attorney General Dennis Vacco to supersede District Attorney Robert Johnson).
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See N.Y. COMP. CODES R. & REGS. tit. 9A, § 5.27 (2006) (executive order requiring Attorney General Dennis Vacco to supersede District Attorney Robert Johnson).
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245
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Press Release, Office of the Governor, Governor Pataki Signs Executive Order to Supersede Bronx District Attorney Johnson (Mar. 21, 1996) (on file with the Duke Law Journal). Ironically, Governor Pataki noted Johnson's political philosophy against the death penalty improperly influenced Johnson's exercise of prosecutorial discretion, and thus was a reason for supersession. Id. (The law states that we have a death penalty. District Attorney Johnson refuses to enforce this law. I have no choice but to replace District Attorney Johnson with someone... who will not allow political philosophy to control his professional responsibility and judgment....).
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Press Release, Office of the Governor, Governor Pataki Signs Executive Order to Supersede Bronx District Attorney Johnson (Mar. 21, 1996) (on file with the Duke Law Journal). Ironically, Governor Pataki noted Johnson's political philosophy against the death penalty improperly influenced Johnson's exercise of prosecutorial discretion, and thus was a reason for supersession. Id. ("The law states that we have a death penalty. District Attorney Johnson refuses to enforce this law. I have no choice but to replace District Attorney Johnson with someone... who will not allow political philosophy to control his professional responsibility and judgment....").
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246
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Pataki, 691
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Johnson v. Pataki, 691 N.E.2d 1002 (N.Y. 1997).
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(1997)
N.E.2d
, vol.1002
, Issue.Y
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Johnson1
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247
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Id at 1016 (Smith, J., dissenting).
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Id at 1016 (Smith, J., dissenting).
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248
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Pitler, supra note 161, at 547
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Pitler, supra note 161, at 547.
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249
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See Taylor, supra note 109, at 224 discussing the need to formulate procedures to deal with the substitution of prosecutors in a more uniform and effective way
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See Taylor, supra note 109, at 224 (discussing "the need to formulate procedures to deal with the substitution of prosecutors in a more uniform and effective way").
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250
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See Kurlander & Friedlander, supra note 162, at 62 ([A] regular procedure and consistent standard for review of special prosecutor requests will serve to highlight the extraordinary nature of the power and to add a level of review assistance to the Governor's exercise of the appointment power.).
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See Kurlander & Friedlander, supra note 162, at 62 ("[A] regular procedure and consistent standard for review of special prosecutor requests will serve to highlight the extraordinary nature of the power and to add a level of review assistance to the Governor's exercise of the appointment power.").
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251
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84858478351
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N.Y. COMP. CODES R. & REGS. tit. 9A, § 4.109 (1995).
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N.Y. COMP. CODES R. & REGS. tit. 9A, § 4.109 (1995).
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252
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36148946854
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Such a committee could be modeled loosely after Texas' short-lived Prosecutor Council. TEX. REV. CIV. STAT. ANN. art. 332d (Vernon 1977) (repealed 1985);
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Such a committee could be modeled loosely after Texas' short-lived Prosecutor Council. TEX. REV. CIV. STAT. ANN. art. 332d (Vernon 1977) (repealed 1985);
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253
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36148965250
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see also Steele, supra note 61, at 982-88 (proposing an independent commission to handle allegations of prosecutorial misconduct);
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see also Steele, supra note 61, at 982-88 (proposing an independent commission to handle allegations of prosecutorial misconduct);
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254
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36148947233
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Yaroshefsky, supra note 75, at 297-98 (same). Unlike the Prosecutor Council of Texas or other proposed independent prosecutorial commissions, however, the committee's mission would be limited to advising the executive in the appointment of special prosecutors, not disciplining errant prosecutors.
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Yaroshefsky, supra note 75, at 297-98 (same). Unlike the Prosecutor Council of Texas or other proposed independent prosecutorial commissions, however, the committee's mission would be limited to advising the executive in the appointment of special prosecutors, not disciplining errant prosecutors.
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255
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Pitler, supra note 161, at 547
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Pitler, supra note 161, at 547.
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256
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Johnson v. Pataki, 691 N.E.2d 1002, 1005 (N.Y. 1997) (citing Mulroy v. Carey, 373 N.E.2d 369, 369 (N.Y. 1977)). The court in Johnson v. Pataki declined to define the standard by which to review the executive superseder power, questioning whether one [was] applicable at all. Id. at 1007. In his dissent, Judge Smith argued for a rational basis standard of review. Id. at 1014 (Smith, J., dissenting).
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Johnson v. Pataki, 691 N.E.2d 1002, 1005 (N.Y. 1997) (citing Mulroy v. Carey, 373 N.E.2d 369, 369 (N.Y. 1977)). The court in Johnson v. Pataki declined to define the standard by which to review the executive superseder power, questioning whether "one [was] applicable at all." Id. at 1007. In his dissent, Judge Smith argued for a "rational basis" standard of review. Id. at 1014 (Smith, J., dissenting).
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Vesting the power of superseder with attorneys general raises constitutional concerns in some jurisdictions. Specifically, a number of state constitutions expressly grant district attorneys the exclusive authority to prosecute crimes in their districts. E.g, N.C. CONST, art. IV, § 18. In these jurisdictions, a statute that grants the power of superseder to the governor would not be unconstitutional because of the governor's constitutional duty to take care that the laws be faithfully executed. Id. art. Ill, § 5, cl. 1. A jurisdiction that vested such superseder power with the attorney general, absent an amendment to the state constitution, might be, however
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Vesting the power of superseder with attorneys general raises constitutional concerns in some jurisdictions. Specifically, a number of state constitutions expressly grant district attorneys the exclusive authority to prosecute crimes in their districts. E.g., N.C. CONST, art. IV, § 18. In these jurisdictions, a statute that grants the power of superseder to the governor would not be unconstitutional because of the governor's constitutional duty to "take care that the laws be faithfully executed." Id. art. Ill, § 5, cl. 1. A jurisdiction that vested such superseder power with the attorney general, absent an amendment to the state constitution, might be, however.
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Attorneys general are popularly elected in all but seven states. Nat'l Ass'n of Attorneys Gen., How Does One Become an Attorney General?, http://www.naag.org/how_does_one_ become_an_attorney_general.php (last visited Sept. 27, 2007).
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Attorneys general are popularly elected in all but seven states. Nat'l Ass'n of Attorneys Gen., How Does One Become an Attorney General?, http://www.naag.org/how_does_one_ become_an_attorney_general.php (last visited Sept. 27, 2007).
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See William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 YALE LJ. 2246, 2253 (2006) (noting the political reality that the Office of the Attorney General has long been seen by many of its occupants as a stepping stone to the Governor's office).
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See William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 YALE LJ. 2246, 2253 (2006) (noting "the political reality that the Office of the Attorney General has long been seen by many of its occupants as a stepping stone to the Governor's office").
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260
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See WOLFRAM, supra note 63, § 13.10.2 (discussing how complaints to disciplinary agencies may be motivated by a desire to compromise the political power of the prosecutor's office);
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See WOLFRAM, supra note 63, § 13.10.2 (discussing how complaints to disciplinary agencies "may be motivated by a desire to compromise the political power of the prosecutor's office");
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261
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Zacharias, supra note 68, at 758 noting the potential for defense attorneys to make allegations of prosecutorial misconduct to manipulate bar proceedings for tactical purposes
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Zacharias, supra note 68, at 758 (noting the potential for defense attorneys to make allegations of prosecutorial misconduct to "manipulate bar proceedings for tactical purposes").
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262
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The Supreme Court expressed the same fears with respect to civil liability in Imbler v. Pachtman, AlA U.S. 409 (1976), noting that exposing prosecutors to civil liability would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system. Id. at 427-28.
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The Supreme Court expressed the same fears with respect to civil liability in Imbler v. Pachtman, AlA U.S. 409 (1976), noting that exposing prosecutors to civil liability "would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system." Id. at 427-28.
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263
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notes 160-61 and accompanying text
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See supra notes 160-61 and accompanying text.
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See supra
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Private challenge statutes, such as those discussed in Part II.B, face similar abuse. To thwart unfounded actions by individuals eager to reap financial rewards in subsequent civil actions, one recommended victims' private challenge proposal has advocated assessment of suchcosts to the victim's private prosecutor to discourage malicious prosecutions. Comment, Private Prosecution- A Remedy for District Attorneys' Unwarranted Inaction, supra note 140, at 233
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Private challenge statutes, such as those discussed in Part II.B, face similar abuse. To thwart unfounded actions by individuals eager to reap financial rewards in subsequent civil actions, one recommended victims' private challenge proposal has advocated assessment of suchcosts to the victim's private prosecutor to discourage malicious prosecutions. Comment, Private Prosecution- A Remedy for District Attorneys' Unwarranted Inaction, supra note 140, at 233.
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See Jonakait, supra note 42, at 565 advocating systemic reform
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See Jonakait, supra note 42, at 565 (advocating "systemic reform").
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266
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36148970965
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See Taylor, supra note 109, at 224 (discussing the costs of both retaining private attorneys to serve as special prosecutors and increasing the size of the attorney general's office to accommodate a larger special prosecutions division).
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See Taylor, supra note 109, at 224 (discussing the costs of both retaining private attorneys to serve as special prosecutors and increasing the size of the attorney general's office to accommodate a larger special prosecutions division).
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267
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36148997733
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The Model Rules of Professional Conduct require that attorneys report misconduct on the part of their peers: A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. MODEL RULES OF PROF'L CONDUCT R. 8.3a, 2003
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The Model Rules of Professional Conduct require that attorneys report misconduct on the part of their peers: "A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority." MODEL RULES OF PROF'L CONDUCT R. 8.3(a) (2003).
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268
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36148967423
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Attorney Gen. Roy Cooper, Comments by Attorney General Roy Cooper: State v. Finnerty, Evans, Seligmann 1 (Apr. 11, 2007), http://www.ncdoj.com/ DocumentStreamer Client?directory=PressReleases/&file= Dismissal%20Statement%20Press.pdf.
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Attorney Gen. Roy Cooper, Comments by Attorney General Roy Cooper: State v. Finnerty, Evans, Seligmann 1 (Apr. 11, 2007), http://www.ncdoj.com/ DocumentStreamer Client?directory=PressReleases/&file= Dismissal%20Statement%20Press.pdf.
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269
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Joseph Neff, Anne Blythe & Mandy Locke, Nifong Stripped of Law License for Lacrosse Case Misconduct, NEWS & OBSERVER (Raleigh, N.C), June 17,2007, at Al.
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Joseph Neff, Anne Blythe & Mandy Locke, Nifong Stripped of Law License for Lacrosse Case Misconduct, NEWS & OBSERVER (Raleigh, N.C), June 17,2007, at Al.
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270
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Joseph Neff, Lacrosse Probe Has Much Fodder, NEWS & OBSERVER (Raleigh, N.C), July 1,2007, at B1.
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Joseph Neff, Lacrosse Probe Has Much Fodder, NEWS & OBSERVER (Raleigh, N.C), July 1,2007, at B1.
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271
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Anne Blythe, Bills Would Let DAs Sit on Some Records, NEWS & OBSERVER (Raleigh, N.C), May 4, 2007, at Al.
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Anne Blythe, Bills Would Let DAs Sit on Some Records, NEWS & OBSERVER (Raleigh, N.C), May 4, 2007, at Al.
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272
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Attorney Gen. Roy Cooper, supra note 210, at 2
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Attorney Gen. Roy Cooper, supra note 210, at 2.
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note 20 quoting Bennett Gershman, Professor of Law, Pace Univ
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Armstrong & Possley, supra note 20 (quoting Bennett Gershman, Professor of Law, Pace Univ.).
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supra
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Armstrong1
Possley2
|