To the ethical underpinnings of sentencing decisions. Courts How Ought a Case Be Adjudicated
Learning Objectives: � To appreciate John Rawls’
theory of justice and the “greatest equal liberty” principle.
� To recognize the importance of the Model Rules of Professional Conduct for prosecution and defense conduct.
� To understand what a “mob lawyer” is and the proper role of a defense attorney in criminal cases.
� To assess the scope of a prosecutor’s discretion and its implication for ethical conduct.
� To evaluate the nature of plea bargaining and the ethical dilemma it creates.
� To understand the ethical underpinnings of sentencing decisions.
Courts How Ought a Case Be Adjudicated?
Everyone has a reason for what he or she does, and itis the task of the adjudication process to evaluate theacceptability of the reasons offered. Consider the case of former U.S. ambassador Joseph Wilson, who wrote an editorial in the New York Times criticizing President
A man’s habits become his character. —Edmund Burke (1729–1797)
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George W. Bush for falsely linking Iraq to African uranium in his 2003 State of the Union speech. A few days later, the name of Central Intelligence Agency (CIA) agent Valerie Plame, Wilson’s wife, was leaked to the press. It is a felony to reveal, and thereby endanger, the identity of a CIA agent. Wilson alleged that the exposure of his wife was retaliation by the Bush administration for his critical editorial. Journalists reported that Bush administration officials had revealed the CIA agent’s identity, and after failing to learn the identity of the leak from government officials, the U.S. attorney general began issuing subpoenas to journalists contacted by Bush officials. Many of the reporters insisted that First Amendment guarantees of free press should protect them from such subpoenas, claiming their promises of confidentiality to sources are needed to protect those leaking information that serves the public good by making government more transparent and accountable. The judge disagreed, citing an earlier U.S. Supreme Court case that held, “We cannot accept the argument that the public interest in possible future news about crime . . . must take precedence over the public interest in pursuing and prosecuting those crimes.” The judge ordered several reporters to serve jail time for refusing to testify before a grand jury investigating the matter, noting that “all available alternative means of obtaining the information have been exhausted, the testimony sought is necessary for the completion of the investigation, and the testimony sought is expected to constitute direct evidence of innocence or guilt.”1
This case illustrates the need to carefully assess (and then adjudicate) the claims of the journalists in not revealing their sources. It must be determined whether the justification they offered is valid, which is the fundamental role of ethics in decisions affecting criminal justice. For example, the judge in this case is faced with balancing the goods to be achieved from solving the alleged leak of a CIA agent’s identity versus protecting future journalistic sources from being revealed. The total possible happiness to be achieved from a short-term goal (solving this case) versus a long- term goal (protecting journalists’ sources) points to the problem of utilitarianism in measuring and comparing different consequences because the possible outcomes and their impacts are not always apparent or predictable. Formalism would frame the decision as asking which is the better universal rule: “It is in the public interest to always protect a journalist’s sources from being revealed” or “Journalists must reveal their sources in cases involving endangering a government agent, when all other avenues of investigation have been exhausted.” Finally, virtue ethics would frame the judge’s decision in determining whether a real good (knowledge or civil peace) is being pursued in accord with the moral virtues (especially prudence and justice). Would you make the same decision as the judge did in this case?
The criminal justice system is designed to enforce moral rules that have been written into the criminal law. Aristotle believed that justice consists of giving each person his or her due. The Preamble to the U.S. Constitution reads
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
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The real goods of civil peace and liberty are expressly mentioned, as is the moral virtue of justice, showing their centrality not only for individuals but for entire societies as well. Kant believed that justice does not specify what each person is owed, so he added that a just rule or law exists when reasonable persons would accept the rule for themselves.
John Rawls (1921–2002) was a twentieth-century philosopher who posited a theory of justice, stating that there are two principles of justice acceptable to all people: (1) Each person is free and worthy of respect, and liberty is restricted only out of respect for the liberty of others, and (2) social and economic opportunities must be open to all even though outcomes may be different. Inequalities should not unfairly burden any segment of society. Rawls’s view implies a tension between freedom and equality, and he shows a concern for the social justice in society. He believes justice and fairness are different concepts. Justice applies to all people at all times, whereas fairness occurs when a person has the opportunity to decline (e.g., a school or a job). According to Rawls, the highest good is the “greatest equal liberty principle,” which means that every person should have the right to liberties equal to those of everyone else having the same rights. Inequality is accepted only if it benefits the underprivileged.2
Crime and justice are linked in ethical terms in that conduct is criminalized to maintain social justice and order. Under ideal conditions, when everyone is acting justly, crime will not occur. In a similar vein, James Madison, fourth president of the United States, stated in the federalist papers in 1788, “If men were angels no government would be necessary and if angels governed, no controls on government would be necessary.”3 As this chapter describes, there is a long history of constitutional interpretation dealing with the balance to be struck between the public interest in apprehending and adjudicating crime suspects and the interest of private individuals to be left alone.
Public opinion is mixed regarding how this balance is achieved in practice. A Gallup poll asked an important question in 2000 and again in 2003.4 The question and answers are presented in Table 7.1. There was a slight drop in citizen ratings of fairness of the criminal justice system (which includes police, courts, and corrections) from 2000 to 2003, but two- thirds (66 percent) of the public believe the system is fair in its treatment of those accused of crimes. This suggests that a clear majority of citizens believe that justice is occurring, but it is still troubling that one-third (32 percent) do not. Therefore, it is important that the meaning and application of justice in practice be considered carefully because public opinion, public confidence, and public support of the justice system are crucial in a democratic society. Consensus that criminal justice decisions are based on objective principles of ethics and justice is needed to defend and uphold confidence in the justice system when difficult or controversial decisions are at issue.
In general, do you think the criminal justice system is very fair, somewhat fair, somewhat unfair or very unfair in its treatment of people accused of committing crime?
Year of Survey Very or Somewhat Fair Very or Somewhat Unfair
2000 67% 29% 2003 66% 32%
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Lawyers have bad reputations; they are always ranked among the lowest of the professions in terms of public confidence. As it turns out, they have had this image for a long time. Both Plato and Aristotle wrote disparagingly of advocates who misrepresented the truth, making the guilty appear innocent. In the modern era, the American Bar Association adopted Model Rules of Professional Conduct in 1983, recognizing that “virtually all difficult ethical problems arise from conflicts between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own self-interest in remaining an upright person while earning a satisfactory living.” This excerpt from the Preamble to the Model Rules might be applied to any profession. Most ethical dilemmas involve balancing self-interest; duty to clients, customers, or colleagues; and responsibility to the profession. In a nod to the central importance of ethical principles, the Model Rules also state in the Preamble that difficult issues “must be resolved through the exer- cise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.”5 It is those basic ethical principles that underlie the Model Rules and are the substance of ethics. The Model Rules merely attempt to apply those principles to law-related situations.
The conduct of some prosecutors before and during trial has generated a great deal of concern on ethical grounds. A well-known instance of clearly unethical conduct is from the case Miller v. Pate, in which the prosecutor concealed from the jury that a pair of underpants with red stains on it were stained by paint, not blood.6 In other cases, prosecutors have tried to prejudice a jury against a defendant with deliberately inflammatory and untrue statements. For example, a prosecutor said in his summation, the defendant and his lawyer “are completely unable to explain away their guilt.”7
According to one prosecutor, the reason professional misconduct takes place is because “it works.”8
This utilitarian rationale assumes that the intended good that results (conviction) outweighs the pos- sible negative consequences (misleading the jury, undermining the adversary process, and possible erroneous convictions). Therefore, even a utilitarian argument does not support the practice, and for- malism and virtue ethics would reject it on principle, regardless of the outcome achieved.
The reason the practice of untruths in court “works” is because there is inconsistent enforcement of the legal and ethical rules of prosecutor conduct. In one case, a conviction was upheld, even though the appellate court found the prosecutor’s comments to be “totally out of order,” and the prosecutor was not penalized in any way.9 An analysis of conflicting and inconsistent court decisions on this issue concluded that “they demonstrate the utter failure of appellate courts to provide incen- tives for the prosecutor to control his behavior . . . very little guidance is given to the prosecutor to assist him in determining the propriety of his actions. Clearly, without such guidance, the potential for misconduct significantly increases.”10 Appellate courts can correct or punish prosecutors with a warning, reversing the case, or by publicly naming the prosecutor. They cannot be fined, because the U.S. Supreme Court has held that prosecutors are not personally liable for misconduct in presenting a case.11 Although some degree of immunity from liability is desirable, a complete shield from liability when misconduct occurs does nothing to prevent misconduct from continuing in the future.
These cases illustrate that professional misconduct sometimes has short-term rewards (e.g., convictions, personal popularity), but longer-term consequences are left for others to deal with (e.g., miscarriages of justice, low public regard for lawyers, declining public support for the criminal justice system). Without external checks through meaningful review of professional decisions, these important decisions can become self-serving, promoting only self-interest rather than public interest.
Of course, there are occasional cases where a prosecutor might intentionally lose a case when he or she believes the individual charged is innocent. These cases are normally handled by reducing
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charges or having the case dismissed, but in a New York City case an assistant district attorney (ADA) intentionally lost a case that his supervisor told him must be prosecuted. The ADA had to weigh the demands of ethics against his obligation to his office. He was ordered to take the case to course and let a judge decide it, even though his 2-year investigation of the facts led him to believe the suspects were innocent. The ADA helped the defense lawyers in the case in handling witnesses, and the suspects were ultimately freed.12 This kind of case is rare, but it illustrates that both prosecu- tion and defense must advocate for their clients (the public and the accused), but there is also a duty to seek the truth, which sometimes is lost in the workings of the adjudication process.
Kevin Rankin was a lawyer for the Philadelphia Cosa Nostra organized crime group. He obtained statements and testimony that he knew were false on behalf of family members charged with crimes. He also paid off a corrections officer to perjure himself.13 Rankin was ultimately convicted for his role as a participant in an organized crime narcotics conspiracy and was sentenced to 54 years in prison.
Bruce Cutler was the attorney for New York City Gambino family mob boss John Gotti and later for Gotti’s son. Prosecutors successfully disqualified him from representing the Gottis in several cases, arguing that he had a conflict of interest because of his friendship with his clients and participation in some of the events that would be raised at trial. The prosecution claimed Cutler was “as integral a part of the Gambino family as any of its members.”14
Frank Ragano spent 30 years representing alleged organized crime figures, such as Santo Trafficante of Florida, Carlos Marcello of New Orleans, and Jimmy Hoffa of the Teamster’s Union.15 After the deaths of Trafficante and Marcello, Ragano recounted in a book that he was seduced by the power and influence of these individuals and ultimately decided to leave his circle of clients. As a mob lawyer, Ragano confessed that “my gravest error as a lawyer was merging a professional life with a personal life. Ambition and aspiration for wealth, prestige, and recognition clouded my judgment. . . . Representing Santo and Jimmy was a shortcut to success—too much of a shortcut.”16 He admitted that he “crossed the professional line” when he became intimate friends with his infamous clients. He “gradually began to think like them and to rationalize their aberrant behavior. Their enemies became my enemies; their friends, my friends; their values, my values; their interests, my interests.”17 Ironically, an Internal Revenue Service (IRS) audit of his tax records was ordered soon after his successful defense of Trafficante, and Ragano was sentenced to a year in prison. Can you explain Frank Ragano’s behavior as a mob lawyer in ethical terms?
In an effort to deter conduct such as that of Frank Ragano, the government has turned to forfeiture laws. Under forfeiture laws, the proceeds of organized crime-related activity may be forfeited to the government. Lawyers argue that if the fees paid to them by organized crime-linked defendants can be forfeited under this provision, attorneys will avoid representing this kind of client, which impacts on a defendant’s right to counsel and due process.18 If defense attorneys are required to ask their clients about the sources of their legal fees, would it set a poor precedent for “high- profile” defendants? Should their physicians and accountants be required to ask the same question? Some would say yes, whereas others see this as neither workable nor desirable, compromising the attorney–client privilege by making lawyers monitor the sources of their clients’ funds.19
Defendants do not have a right to high-priced counsel, but should they have the right to use proceeds from crime to pay lawyer’s fees or living expenses during court proceedings? Other countries permit defendants to use suspected illegal funds to defend themselves and for living expenses during trials, but the United States does not:
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If a criminal robbed a bank and was caught holding the bags of cash taken from the vault, I think we would all agree that the money would be returned to the bank and the robber . . . not be entitled to use the proceeds of his crime to pay for lawyers to mount his defense. It should be no different for other types of crimes.20
The tension between a professional having to know the source of his or her client’s funds and a defendant’s use of alleged illegal funds for legal representation creates a difficult dilemma that deters some attorneys from taking organized crime cases. The ethical issues of representing a notorious client are compounded by the high personal cost such representation might entail. The government uses a utilitarian calculus to discourage representation of targeted clients by raising the possibility of adverse consequences for the defense attorney.
For all lawyers in prosecution, defense, or private practice, there is “no uniform or coordinated procedure” for federal, state, and local jurisdictions to exchange information regarding disciplinary problems with attorneys. Attorneys disciplined in one state, for example, “are not automatically scrutinized in other states where they may also be licensed to practice.” There is also “no formal arrangement” where state bar disciplinary committees are notified of disciplinary actions or convictions against attorneys in federal court within or outside their state.21 This allows attorneys to move to different jurisdictions and continue using unprofessional conduct. A system that does not consistently punish those who violate the law or the rules of professional responsibility tacitly promotes it. Therefore, defense attorneys, like prosecutors, need meaningful oversight of their decisions to ensure their congruence with public interest.
ISSUES AT TRIAL
Darrell Harris was placed on trial for killing three people and seriously wounding a fourth at a Brooklyn social club. It was the first capital punishment case to be tried after New York State had reinstated the death penalty. Harris was charged with robbing the victims of $200 and then killing them because he wanted no witnesses. His defense attorney claimed that Harris “lost control and snapped” during this incident because he suffered from posttraumatic stress disorder from the “combatlike” work conditions in the jails when he worked as a corrections officer.22 In addition, Harris’s attorney argued that Harris’s mental health was affected by a chaotic and abusive childhood, spinal meningitis that caused brain damage, cocaine and alcohol abuse, and failure to hold a job. Two days before the homicides occurred, Harris was fired from his job as a security guard. He also had discovered his car had been towed. Previously, he had resigned from his job as a corrections officer after failing a drug test.
These claims bear little relationship to the charges filed, and they feed the perception that defense attorneys focus less on seeking truth than on exoneration of their clients at any cost.23
Cases such as this one raise other questions as well: “What are the limits of proper representation, and what is the purpose of the adjudication process?”
In criminal cases, police and prosecutors attempt to establish criminal liability. This involves establishing the presence of the elements of the crime that subject the accused person to criminal penalties. Defendants, and defense lawyers working on their behalf, attempt to establish reasons why the act in question, the suspect’s state of mind, or the circumstances of the incident establish a case for acquittal. In many cases, the defense will stipulate that the act and harm were both caused by the defendant but that there is a valid excuse for the defendant’s conduct. In most cases, the defendant ultimately admits to the conduct in question, leading to the question: “Should a lawyer defend a guilty person?”
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Some people wonder how defense attorneys live with themselves after they help a guilty person be exonerated, but this view overlooks the fact that defense attorneys represent only the legal rights of defendants, not their past, their personality, or their guilt or innocence. In fact, it is “not their job to decide who is guilty and not. Instead, it is the public defender’s job to judge the quality of the case that the state has against the defendant.”25 According to the standards of the American Bar Association, “the defense lawyer is the professional representative of the accused, not the accused’s alter ego.”26
In a murder case that was appealed to the U.S. Supreme Court, a defense attorney did not permit his client to testify falsely about whether he had seen a gun in the hand of the victim. The defendant claimed that he was deprived of effective assistance of counsel because of his lawyer’s refusal to permit the defendant to perjure himself. The Supreme Court disagreed and held that the defense lawyer’s duty “is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth.” As a result, “counsel is precluded from taking steps or in any way assist- ing the client in presenting false evidence or otherwise violating the law.”27 The proper role of a defense attorney is to represent a defendant in an honest way that seeks the truth in the case. The Code of Professional Responsibility prohibits false statements of fact or law in court; there is much “fiction weaving that customarily passes for argument to a jury.”28 As we have already seen in the case of prosecutors, there may also be a gap between the principles and the actual practice of criminal defense. It can be seen that several of Aristotle’s moral virtues (i.e., justice, truthfulness, temperance, prudence, pride, ambition) are sometimes twisted and misapplied in an effort to pursue personal success over the public good. Objective review of these decisions by the participants themselves, and by outside bodies, can point to these ethical errors and serve as warnings to others.
DECIDING CASES WITHOUT TRIAL
Prosecutors have few limits on how they carry out their role. Consider the example of a Manhattan district attorney in New York City who established a narcotics eviction program. In response to complaints of tenants in poor neighborhoods, the district attorney asked landlords to begin eviction proceedings against tenants who were using drugs or allowing others to use their apartments to sell drugs. If the landlord did not act, the district attorney initiated eviction proceedings under New York’s real estate law, which prohibits the use of any premises for the conduct of illegal activity. Police searches of the premises produced the evidence that supported allegations of illegal use. In one case, a 68-year-old woman was living with two daughters who were selling drugs. The judge allowed the mother to remain in the apartment but barred the daughters from returning there. In 6 years the program removed more than 2,000 drug users and dealers from both residential and commercial buildings.29 This case illustrates the broad powers of prosecutors in both selecting prosecution targets and the nature of the prosecution itself.
ETHICS CHECKUP Justice versus Mercy
A scientist was sentenced to 5 years in prison for conspiracy to sell trade secrets worth $8 million from two pharmaceutical companies.24 The scientist also had cancer and was expected to live only about 6 months longer. He told the judge, “I don’t
want to die in prison.” But the judge said he had “no choice” and sentenced the scientist to the prison term.
On what principles(s) would you make a decision in this case, and what would your sentence be?
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The prosecutor’s discretion is considerable in the manner in which the law can be enforced and adjudicated.30 Prosecutors can set priorities, concentrate on certain types of cases, and avoid other cases entirely. In the case of an armed robbery, for example, police turn over the case to the prosecutor, who decides (1) whether the case will be prosecuted and (2) what charges will be pressed. In the case of armed robbery, for example, assault, larceny, and weapons charges could be filed in addition to the robbery charge (because they are lesser included offenses). After charges have been filed, the prosecutor can decide not to press the charges any further or to reduce the charge in exchange for a guilty plea. After a defendant has pleaded guilty or been convicted in court, the prose- cutor usually recommends a particular sentence to the judge. Thus, the prosecutor has considerable discretion at virtually all important decision points in the criminal justice process: determining whether the police decision to arrest was appropriate, determining the charge, recommending bail, playing a role in whether a defendant goes to trial, and influencing the judge’s sentencing decision.
The scope of a prosecutor’s discretion continues to expand as the adoption of mandatory minimum sentence laws and truth-in-sentencing laws has reduced the judge’s flexibility in sentencing choices. This shifting of sentencing authority away from judges to the prosecutors (in deciding on the charge to be prosecuted) has been criticized for placing too much power in the hands of one person.31 Clearly, prosecutors have opportunities to misuse their discretionary powers because of the tremendous scope of their authority.32 They have garnered the most criticism in the process of plea bargaining.
Plea bargaining occurs when a prosecutor agrees to press a less serious charge, drop some charges, or recommend a less severe sentence if the defendant agrees to plead guilty. Some prosecutors claim that plea bargaining is a necessary evil that enables them to handle large caseloads. Others claim that it is merely an administrative convenience. In either case, plea bargaining is the method of settlement for approximately 90 percent of all criminal cases.33
Defense attorneys provide legal protection to defendants by examining the evidence used to establish probable cause and questioning whether the evidence proves guilt beyond reasonable doubt. This role sometimes brings the defense counsel into conflict with police and prosecutors and with victims and witnesses who believe they are being “attacked” by the defense. An effective defense attorney, however, skillfully examines the reliability and validity of the evidence produced by the police, prosecutors, victims, and witnesses; the attorney should not attack anyone as an individual. Strong advocacy of the legal rights of a defendant can become blurred with the desire to win at all costs. But the role of a defense attorney is crucial because it increases certainty about outcomes in the adjudication process. Without high levels of certainty in findings of guilt or innocence, the public loses faith in the justice system and in the government it represents.
A plea bargain often results in a reduced sentence, and the prosecution will often recommend a longer sentence on the same charge after trial. Is it fair, just, or ethical to impose harsher penalties on someone found guilty after trial than on someone who agrees to plead guilty for a reduced sentence? Clearly, a trial is designed for a full airing of the facts, providing the opportunity for cross- examination of witnesses to assess the strength of the evidence offered. Plea bargaining replaces a trial with a guilty plea, which is a less reliable process.34 In ethical terms, a sentence is a statement of the moral “worth” of the crime. Formalism sees the purpose of sentencing as retributive, so there is no justification for changing punishment based on whether it is a plea or trial. Similarly, virtue ethics would have trouble justifying different punishments based solely on the method of adjudication. Plea bargaining is justified entirely on utilitarian grounds: More good results from the plea bargain (an immediate and certain conviction and sentence) than harm (disproportionate sentences and facts not evaluated by a neutral party at trial). Do you believe plea bargaining is morally permissible on utilitarian grounds?
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A judge in New Jersey ruled in 2004 that criminals may have their DNA samples destroyed after they complete their prison sentences. The judge ruled that “Once a felon has paid his or her debt to society and has fully resumed civilian life, the state’s right to maintain that person’s DNA withers.”35 This decision caused tremendous controversy because it apparently opened a large hole in an earlier law that required everyone convicted of a crime to submit a DNA sample. As the attorney general stated in his intention to appeal the judge’s decision, the whole purpose of maintaining a DNA database is “to determine if a career criminal has done it again.”36
This DNA case in New Jersey represents one of two important kinds of judicial decisions that judges are required to make: ruling on evidence and sentencing choices. These judgments are crucial because they involve a person’s liberty, something that virtue ethics recognizes as a real good (i.e., an end to be desired in itself). The judge’s argument in the DNA case is an interesting one, implying that if DNA is kept forever, isn’t it the equivalent of holding someone under a lifetime term of providing DNA as evidence, when the sentence has already been served and debt to society
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