Prosecuting Attorneys and Ethical Challenges David N. Powell Executive Director

1. 0 Prosecuting Attorneys and Ethical Challenges David N. Powell Executive Director Indiana Prosecuting Attorneys Council (IPAC) (317) 232-1836 Indiana State Ethics Commission 4th Annual Legal & Ethics Conference Indianapolis, Indiana November 29, 2011

2. Agenda • Disclosure of Evidence • Pretrial Publicity • Conflicts of Interest • Indiana’s Ethics Code

3. But first . . . IPAC • The prosecuting attorneys council of Indiana is established. (b) The membership of the council consists of all the prosecuting attorneys and their chief deputies acting in Indiana. I.C. 33-39-8-2

4. IPAC, cont’d The council shall do the following: (1) Assist in the coordination of the duties of the prosecuting attorneys of the state and their staffs. (2) Prepare manuals of procedure. (3) Give assistance in preparation of the trial briefs, forms, and instructions. (4) Conduct research and studies that would be of interest and value to all prosecuting attorneys and their staffs. (5) Maintain liaison contact with study commissions and agencies of all branches of local, state, and federal government that will be of benefit to law enforcement and the fair administration of justice in Indiana. (6) Adopt guidelines for the expenditure of funds derived from a deferral program or a pretrial diversion program. I.C. 33-39-8-5

5. Foundation The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88 (1935)

6. Rule 3.8Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; . . . [and,] (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 [(Trial Publicity)] or this Rule.

7. Rules 1.7 & 1.8Conflicts of Interest • Rule 1.7: Current Clients, General Rules • Rule 1.8(l): Current Clients, Specific Rules • (l) A part-time prosecutor or deputy prosecutor authorized by statute to otherwise engage in the practice of law shall refrain from representing a private client in any matter wherein exists an issue upon which said prosecutor has statutory prosecutorial authority or responsibilities. This restriction is not intended to prohibit representation in tort cases in which investigation and any prosecution of infractions has terminated, nor to prohibit representation in family law matters involving no issue subject to prosecutorial authority or responsibilities. Upon a prior, express written limitation of responsibility to exclude prosecutorial authority in matters related to family law, a part-time deputy prosecutor may fully represent private clients in cases involving family law.

8. Rules 1.7 & 1.8IllustrativeCases • State ex rel Goldsmith v. Superior Court of Hancock County, 270 Ind. 487, 386 N.E.2nd 942 (1979) • Camm v. State, 2011 Ind. App. LEXIS 1894 (Nov. 15, 2011) (Rule 1.8(d)(literary rights)) • Matter of Ryan, 824 N.E.2nd 687 (Ind. 2005)(Rule 1.7) • Matter of McKinney, 948 N.E.2nd 1154 (Ind. 2011)(Rules 1.7 & 1.8)

9. Conclusion: A Word on Indiana Ethics Code (Standards of Conduct)

10. 0 Prosecuting Attorneys and Ethical Challenges David N. Powell Executive Director Indiana Prosecuting Attorneys Council (IPAC) (317) 232-1836 Indiana State Ethics Commission 4th Annual Legal & Ethics Conference Indianapolis, Indiana November 29, 2011