Race-ing prosecutors' ethics codes

Harvard Civil Rights-Civil Liberties Law Review

Volumn 44, Issue 2, 2009, Pages 461-475

  Podgor, Ellen S ^a,b  

^a Faculty of Development and Electronic Education

^b STETSON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 70049103992     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (117)

1. Martha C. Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law 49 (2004).
2. Reed Walters, Op-Ed., Justice in Jena, N.Y. Times, Sept. 26, 2007, at A27.
3. See infra Part III.
4. See infra Part IV.A.
5. See infra Part IV.B.
6. See infra Part II.
7. Model Rules of ProfI Conduct R. 3.8 cmt. (2007) ("A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.").
8. 118 U.S. 356 (1886).
9. Id. at 373-74;
10. see also Liam D. Scully, Comment, constitutional law-defendants must make a credible showing of selective prosecution in order to obtain discovery- United States v. Armstrong, 116 S. Ct. 1480(1996)
11. 31 SUFFOLK U. L. REV. 553, 556 (1997) ("[T]he Court held that the selective prosecution of laws against a particular race of persons violated the Fourteenth Amendment.").
12. 470 U.S. 598 (1985).
13. 11 Id. at 607.
14. See Oyler v. Boles, 368 U.S. 448, 456 (1962) (noting that, in order to find a discriminatory purpose in the decision of whom to prosecute, "the selection [must be] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification").
15. See, e.g., United States v Batchelder, 442 U.S. 114, 123-124 (1979) (stating that when prosecutors can file charges under multiple statutes, they may choose the statute they prefer to use);
16. Bodenkircher v. Hayes, 434 U.S. 357, 364-365 (1978) (finding no due process violation when a prosecutor threatens re-indictment on more serious charges during plea negotiations).
17. See Wayte, 470 U.S. at 607.
18. Id.
19. See generally Melissa L. Jampol, Goodbye to the Defense of Selective Prosecution, 87 J. Crim. L. & Criminology 932 (1997) (asserting that the decision of the Supreme Court in United States v. Armstrong makes the claim of race-based selective prosecution essentially impossible for the defendant to prove by setting a high threshold for discovery).
20. Batchelder, 442 U.S. at 124-125.
21. However, studies support claims of racial bias in the charging process. See Developments in the Law-Race and the Criminal Process, 101 Harv. L. Rev. 1520, 1525-32 (1988) (discussing empirical studies of race and prosecutorial charging decisions). "One reason that the judicial system has been unreceptive to claims of racially selective prosecution is that it has failed to consider the special features of racial selective prosecution cases."
22. Id at 1545.
23. McCleskey v. Kemp, 481 U.S. 279, 298 n.20 (1987).
24. Id. at 298;
25. see also Ellen S. Podgor & Jeffrey S. Weiner, Prosecutorial Misconduct: Alive and Well and Living in Indiana?, 3 Geo. J. Legal Ethics 657, 659-661 (1990) (discussing the standard for a selective prosecution claim).
26. See United States v. Armstrong, 517 U.S. 456, 470 (1996) (finding that the accused must present "a credible showing of different treatment of similarly situated persons").
27. Podgor & Weiner, supra note 20, at 661 (discussing defendants' lack of success in bringing selective prosecution claims).
28. See Russell D. Covey, Fixed Justice: Reforming Plea Bargaining With Plea-Based Ceilings, 82 Tul. L. Rev. 1237, 1254-1256 (2008) (discussing how prosecutors overcharge to secure plea-bargaining leverage).
29. See Harry Litman, Pretextual Prosecution, 92 Geo. L.J. 1135, 1135 (2005) (discussing the "Al Capone approach to federal prosecution").
30. See Ellen S. Podgor, Arthur Andersen LLP and Martha Stewart: Should Materiality Be an Element of Obstruction of Justice?, 44 Washburn L.J. 583, 583-584 (2005) (discussing the use of obstruction of justice charges as a shortcut to obtain a conviction).
31. 504 U.S. 36 (1992).
32. Id. at 55.
33. Id. at 47.
34. See, e.g.. United States v. Stein, 541 F.3d 130, 136 (2d Cir. 2008) (upholding dismissal of case for threatening accounting firm with indictment if it continued to pay legal fees of defendant employees, impinging on the Sixth Amendment right to counsel);
35. United States v. Scrushy, 366 F. Supp. 2d 1134, 1137-1140 (N.D. Ala 2005) (discussing the eventual dismissal of perjury counts as a result of suppressed deposition testimony).
36. See, e.g., United States v. Martin Linen Supply Co., 430 U.S. 564, 572-575 (1977) (finding double jeopardy as bar to government action);
37. United States v. Vasquez-Villegas, No. CR- 06-6021, 2006 WL 2546714, at *2 (E.D. Wash. Sept. 1, 2006) (dismissing indictment because of due process violation).
38. The ABA Prosecution Function Standards explicitly state that "[i]n making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be involved or to a desire to enhance his or her record of convictions." Standards for Criminal Justice § 3-3.9(d) (1993).
39. Each state provides ethics mandates that are controlling for its jurisdiction. For example, Louisiana, the site of the Jena Six case, has the Louisiana Rules of Professional Conduct that serve as the defining standard for prosecutors in the state.
40. See Anthony V. Alfieri, Prosecuting the Jena Six, 93 Cornell L. Rev. 1285, 1294-1296 (2008) (discussing the Louisiana ethics rules as applied to District Attorney Walters).
41. Model Rules of Prof'l Conduct R. 3.8(a) (2007).
42. Model Rules of Prof'l Conduct R. 1.0(f) (2007).
43. 35 See Morgan Cloud, Judges, "Testilying," and the Constitution, 69 S. Cal. L. Rev. 1341, 1344-1357 (1996) (discussing police lying);
44. Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425, 426 (1996) (discussing police lying that induces a confession).
45. The National District Attorneys Association also has standards that offer guidance to prosecutors in their charging decisions.
46. See Angela J. Davis, The Legal Profession's Failure to Discipline Unethical Prosecutors, 36 Hofstra L. Rev. 275, 285 (2007) (suggesting that these standards establish a higher bar for charging than the Model Rules).
47. See Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor 148 (2007).
48. The ABA Prosecution Function Standards explicitly state that these Standards "are intended to be used as a guide to professional conduct and performance." Standards for Criminal Justice § 4-1.1 (1993). Additionally, they provide that "[t]hey are not intended to be used as criteria for the judicial evaluation of alleged misconduct of the prosecutor to determine the validity of a conviction." Id. at § 3-1.1.
49. Standards for Criminal Justice § 3-3.9(a) (1993).
50. Standards for Criminal Justice § 3-1.1 (1993).
51. Standards for Criminal Justice § 3-3.9(b) (1993).
52. Id. ("The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction.").
53. Standards for Criminal Justice § 3-3.9(b)(iii) (1993). Standard 3-3.9(b) provides:The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction. Illustrative of the factors which the prosecutor may properly consider in exercising his or her discretion are: (i) the prosecutor's reasonable doubt that the accused is in fact guilty; (ii) the extent of the harm caused by the offense; (iii) the disproportion of the authorized punishment in relation to the particular offense or the offender; (iv) possible improper motives of a complainant; (v) reluctance of the victim to testify; (vi) cooperation of the accused in the apprehension or conviction of others; and (vii) availability and likelihood of prosecution by another jurisdiction.
54. Standards for Criminal Justice § 3-3.9(b) cmt. (1993).
55. Id.
56. Id. The Commentary provides:The line separating overcharging from the sound exercise of prosecutorial discretion is necessarily a subjective one, but the key consideration is the prosecution's commitment to the interests of justice, fairly bringing those charges he or she believes are supported by the facts without "piling on" charges in order to unduly leverage an accused to forgo his or her right to trial.
57. In larger prosecutors' offices, one may find written standards on charging procedures. The ABA Prosecution Function Standards suggest that "[t]he prosecutor should establish standards and procedures for evaluating complaints to determine whether criminal proceedings should be instituted." Standards for Criminal Justice § 3-3.4(c) (1993).
58. Davis, supra note 36, at 303. Professor Davis also discusses whether statements by the prosecutor in the Jena Six case may have violated the Louisiana Rules of Professional Conduct.
59. Id. at 308-309.
60. Alfieri, supra note 32, at 1296.
61. The nooses appeared after a black student sat under the tree. Students referred to this tree as "the white tree. See Matthew Solis et al., Jena Six Events Reveal Racial Inequality in U.S. Criminal Justice System, 15 Hum. Rts. Brief 30, 30 (2007).
62. Walters, supra note 2.
63. The Louisiana hate crimes statute makes it "unlawful for any person to select the victim" based upon a host of different characteristics such as "race, age, gender, religion, color, creed, disability, [and] sexual orientation." The statute applies to a limited set of crimes.
64. See LA. Rev. Stat. Ann. § 14:107.2(A) (2007).
65. Walters, supra note 2.
66. Commentators disagree on whether individuals could have been properly charged with a crime for the noose incident. Compare David Luban, The Inevitability of Conscience: A Response to My Critics, 93 Cornell L. Rev. 1437, 1464 (2008) (arguing that there was no statute that permitted prosecution of this incident)
67. Tamara F. Lawson, "Whites Only Tree," Hanging Nooses, No Crime?: Limiting the Prosecutorial Veto for Hate Crimes in Louisiana and Across America, 8 U. Md. L.J. Race, Religion, Gender & Class (forthcoming Feb. 2009) at 25-35, available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1342086 (discussing the different criminal charges that might apply to these facts).
68. Walters, supra note 2.
69. See Memorandum in Support of Second Motion for Arrest of Judgment at 6, Louisiana v. Bell, No.82112 (La. Dist. Ct. Aug. 2, 2007).
70. Walters, supra note 2. By initially charging attempted second degree murder, he was able to place this case in an adult court. See id.
71. LA. Rev. Stat. Ann. § 14:30.1 (2007).
72. Bell was convicted following a jury trial of aggravated second-degree battery. An appellate court in Louisiana vacated this conviction holding that there was no jurisdiction in adult court, and that jurisdiction r"exclusively in juvenile court."
73. See State v. Bell, No. 07- 1106, 2007 La. App. Unpub. LEXIS 59, at *1 (La. App. 3d Cir. Sept. 14 2007). Bell eventually pled guilty to a juvenile charge of second-degree battery.
74. See Mary Foster, Jena six teen pleads guilty, Wash. Post Dec. 4, 2007, at A8
75. This Article does not discuss the appropriateness of a prosecutor writing an op-ed piece on a pending case to refute criticism levied against him. See generally Standards for Criminal Justice § 3-1.4 (1993).
76. This Essay also does not discuss other pertinent events, such as comments made by the prosecutor at a school assembly. See generally Davis, supra note 36, at 307 ("[W]ith one stroke of this pen-I can make your life disappear."). Professor Anthony V. Alfieri states, "Walters's actions and comments surrounding the prosecution of the Jena Six challenge the ethical bounds of Rule 3.8."
77. Alfieri, supra note 32, at 1294.
78. Walters, supra note 2.
79. If this had been a trial, asking jurors to consider themselves in the shoes of the victim would be a violation of the "golden rule." See Braithwaite v. State, 572 S.E.2d 612, 615 (Ga. 2002) (discussing the impropriety of a golden rule argument-one which "asks the jurors to place themselves in a victim's position");
80. See also Witter v. State, 921 P.2d 886, 899 (Nev. 1996) (describing the unacceptability of requesting a jury "to stand in the shoes of the victim"). Additionally, the incident was never alleged to have occurred on a city street.
81. See Solis et al., supra note 50.
82. See Davis, supra note 36, at 275 (discussing the Jena Six incident and applicable ethical rules). There was also a later indictment of a Louisiana man for a federal hate crime and conspiracy.
83. See Press Release U.S. Dep't of Justice Louisiana Man Indicted for Federal Civil Rights Violations for Nooses Targeting "Jena Six" Marchers (Jan. 24, 2008), available at http://www.usdoj.gov/opa/pr/2008/January/ 08-crt-054.html.
84. Jena Six and the Role of Federal Intervention in Hate Crimes and Race-Related Violence in Public Schools: Hearing Before the H. Comm. on the Judiciary, 110th Cong. 5-6 (2007) (joint statement of Lisa M. Krigsten, Counsel to the Assistant Att'y Gen., Civil Rights Div., Dep't of Justice & Donald Washington, U.S. Att'y for the W. Dist. of La.), available at http://judiciary.house.gov/hearings/pdf/Krigsten071016.pdf.
85. See, e.g., Audie Cornish, Protesters Call for Justice for Jena 6 (NPR radio broadcast Sept. 21, 2007);
86. see also Lawson, supra note 54, at 17 (discussing how the Jena events reached national recognition);
87. Protests Support Jena 6 Struggle, PSLweb.org, Oct. 11, 2007, http://www.pslweb.org/site/News2?page=NewsArticle&id=7461 (discussing a September 2007 march that "drew at least 50,000 protesters")
88. One can of course argue that the personality of the decision-maker ultimately affects the process and that a result-oriented prosecutor could achieve any desired result. Although there may be truth to such a view, this Article proceeds from the view that a prosecutor is not acting with a corrupt intent or with a predisposition to a specific outcome.
89. Standards for Criminal Justice § 3-3.9 cmt. (1993).
90. Standards for Criminal Justice § 3-3.9 (1993).
91. The statement that the "prosecutor should establish standards and procedures for evaluating complaints to determine whether criminal proceedings should be instituted" also fails to consider the need to look beyond a one-dimensional approach to prosecution. Standards for Criminal Justice § 3-3.4(c) (1993).
92. See Brief for the State Government as Amici Curiae Supporting Petitioner at 1-3, Gideon v. Wainwright, 372 U.S. 335 (1963) (No.155).
93. Standards for Criminal Justice § 3-1.2(d) (1993).
94. Id. cmt.
95. Walters, supra note 2.
96. Even if a prosecutor is initially blind to an obvious causal connection, public recognition of the events being threaded should trigger immediate review.
97. Kenneth Culp Davis, Discretionary Justice 4-12 (1969).
98. Prosecutors have a fundamental duty to seek or do justice. Cf. Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice," 76 Fordham L. Rev. 1337, 1365-1379 (2007) (discussing these duties as applied to the Duke lacrosse case).
99. See, e.g., Nussbaum, supra note 1, at 20-22, 48-56.
100. See Merriam-Webster's Collegiate Dictionary 887 (10th ed. 1996). Aristotle used the term "pity" in his Rhetoric.
101. See Aristotle Rhetoric (c. 322 B.C.), reprinted in Aristotle, The Rhetoric and the Poetics of Aristotle 113-115 (W. Rhys Roberts & Ingram Bywater trans., The Modern Library 1954).
102. See Merriam-Webster's Collegiate Dictionary, supra note 79.
103. See generally Martha C Nussbaum, Upheavals of Thought 304-27 (2001) (discussing the "cognitive structure of compassion" from Aristotle, Adam Smith, Rousseau, and including Nussbaum's additional contributions). Although Aristotle uses the term "pity" in his Rhetoric, like Martha Nussbaum I use the more appropriate term, compassion.
104. See Aristotle, supra note 79, at 113-15;
105. Nussbaum, supra, at 306 n.17. "Nussbaum, supra note 81, at 321.
106. There are also arguments that can be made that may qualify this application.
107. Nussbaum, supra note 81, at 321.
108. See generally Kathryn M. Caretti & N. Pieter M. O'Leary, The Story of the Jena Six: The Interplay of History, Hate Crimes, Racial Inequality, and Legal Justice in Jena, Louisiana, 1 Hum. Rts. & Globalization L. Rev. 3, 21-27 (2008) (discussing the symbolism expressed by a hanging noose).
109. Nussbaum, supra note 81, at 321.
110. As stated by Nussbaum, "[t]here may be some blame, but, insofar as we feel compassion, we are judging that the predicament is out of proportion to the blame." Nussbaum, supra note 1, at 50.
111. Nussbaum, supra note 1, at 51;
112. see also Nussbaum supra note 81, at 321.
113. See, e.g., Model Rules of ProfI Conduct R. 3.8(b) (2007) (providing that a prosecutor shall "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").
114. See Walters, supra note 2 (claiming that the assault victim was not involved with the noose incident three months prior).
115. Model Rules of ProfI Conduct R. 3.8 cmt. (2007).
116. Alfieri, supra note 32, at 1291-1302 (discussing District Attorney Walters's "colorblind conception").
117. Nussbaum, supra note 1, at 49.