Chapter 7 Prosecutors and Judges

Chapter 7Prosecutors and Judges

Intro

Prosecutors

Prosecutorial Ethics Intro • What is the basic Rule for prosecutorial ethics? • Rule 3.8 • Are prosecutors subject to the other Rules? • Yes – publicity for prosecutors • What other sources of authority govern prosecutorial ethics?

7-1 • A county prosecutor believes that Bill is a criminal mastermind who is responsible for most of the illegal drugs that are coming into the county and who is also responsible for at least ten murders. The prosecutor does not have enough evidence to obtain an indictment on those charges. But in his investigation, the prosecutor discovers that Bill lied on a form he filed with the government to obtain a zoning variance for his mansion. Lying to the government on a form is a felony, but it is a common activity and very rarely prosecuted. In fact, Bill would be the first person ever charged for this crime in the county. Can the • prosecutor ethically bring charges against Bill for lying on a government form? • No, because the prosecutor is acting pretextually • No, because the prosecutor is acting selectively. • Yes, because the prosecutor has probable cause to believe that Bill committed the crime. • Yes, because the prosecutor's discretion to charge or not to charge is an executive decision that is not subject to regulation by lawyers' ethics rules

Rule 3.8 (a) • The prosecutor in a criminal case shall: • (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

7-2 • Walker was arrested for violently robbing a man on the street, but the victim was unwilling to testify at trial. The prosecutor entered into plea bargaining discussions with Walker and his counsel. Walker was unwilling to accept a plea with jail time. He was previously convicted of rape, and so pleading guilty to theft would demand incarceration under applicable law. The prosecutor then offered a deal: if Walker would plead guilty to illegally recording music, the robbery charges would be dropped. Walker would receive a fine and would be credited with time served since his arrest. Can the prosecutor ethically offer this plea arrangement when all agree that Walker would be pleading guilty to a crime he did not commit? • Yes • No

The answer is unclear. • Rule 3.8 (a) provides that a “prosecutor in a criminal case shall . . . refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause[.]” Iowa has disciplined prosecutors for allowing defendants charged with more serious crimes (as to which there was probable cause) to plead to unrelated minor traffic offenses, but prosecutors in other jurisdictions have openly done the same thing.

7-3 • A defendant has been charged with murder. The government's case is based mainly on the testimony of an eyewitness. The prosecutor and defense enter into plea negotiations. At that time, the prosecutor knows --- but the defendant does not --- that the eyewitness has died. If the prosecutor keeps this information secret, it is probable that the defendant will plead guilty to a crime with significant jail time. If the defendant is told about the death of the eyewitness, the prosecutor will be unlikely to get a plea to a crime with jail time. Is the prosecutor constitutionally or ethically required to disclose the death of the eyewitness? • Constitutionally • Ethically • Both Constitutionally and Ethically • Neither Constitutionally nor Ethically

Rule 3.8 (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; • Brady/per text description: “obligation to make timely disclosure to the defense of all evidence or information know to the prosecutor that negates the guild of the accused or mitigates the seriousness of the offense”

In People v. Jones, 375 N.E.2d 41, 43 (N.Y. 1978), mentioned in the • FYI box, the Court of Appeals of New York found there was no • constitutional duty to provide such information because the • information has no evidentiary significance. The court did • not address the question from an ethical perspective. A student note • argues that, “a prosecutor’s duty to ‘do justice’ implies an ethical duty • of disclosure in this situation.” See Casebook p. 686 (FYI Box). It • might also be argued, depending on all the circumstances, that the • failure to disclose the information is impermissibly deceptive, in • violation of Model Rule 8.4(c), especially if the prosecutor has • indicated that the witness is available or that the prosecution has a • triable case.

Prosecutorial Review Rule 3.8 -- I • The prosecutor in a criminal case shall: • (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; • (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; • (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; • (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; • (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: • (1) the information sought is not protected from disclosure by any applicable privilege; • (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and • (3) there is no other feasible alternative to obtain the information;

Prosecutorial Review Rule 3.8-II, especially (g) and (h) • Rule 3.8: Special Responsibilities of a Prosecutor • (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. • (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: • (1) promptly disclose that evidence to an appropriate court or authority, and • (2) if the conviction was obtained in the prosecutor’s jurisdiction, • (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and • (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. • (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Judges

Judicial Ethics Intro • Where you find the rules governing judges?

7-4 • A trial court judge had instructed his court clerk and his secretary that one of them should be present in the office during working hours to answer the telephone. One day, however, the secretary was out sick. The judge was in his office when his court clerk was at lunch, and when the telephone rang, the judge answered it. The call was from a lawyer in a case presently pending before the judge. The lawyer was calling to attempt to reschedule a pretrial conference set for the next day because of a sudden family emergency. The lawyer had tried to call opposing counsel on the case, but she was not answering his calls. The judge agreed to reschedule the pretrial conference for the following week. When the judge's court clerk returned from lunch, the judge instructed the clerk to contact opposing counsel to inform her of the telephone call and the fact that the pretrial conference had been rescheduled. Did the judge act properly? • No, because the judge participated in an ex parte communication. • No, because there was still time for the calling lawyer to notify opposing counsel in order to reach agreement onreschedulingthe pretrial conference • Yes, because the ex parte communication was for scheduling purposes only and did not deal with substantive matters or issues • Yes, because there was no one else in the office to take the lawyer's call.

MCJC Rule 2.9 • (A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending* or impending matter,* except as follows: • (1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided: • (a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and • (b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.

7-5 • A judge has served on a trial court of general jurisdiction for almost three years. During that time, he was assigned criminal cases almost exclusively. Several months ago, however, the judge was assigned an interesting case involving a constitutional challenge to a statute recently passed by the state legislature. The statute permitted any local public school district with an overcrowding problem to purchase educational services for its students in any other public or private school within fifteen miles. Although the briefs submitted by the parties were excellent, the judge was not confident that he had a good grasp of the issues in the case. Accordingly, he took one of his more experienced colleagues on the trial court out to lunch and discussed the case with her in great detail. The colleague was far more conservative than the judge, but he agreed with her and eventually ruled in accord with her views. The case is now on appeal. Is the judge subject to discipline? • Yes, because the judge sought an ex parte communication on the merits of a case pending before him. • Yes, because the judge initiated a discussion with a colleague that may have influenced his judgment in the case. • No, because the judge is permitted to obtain the advice of a disinterested expert on the law. • No, because the judge was permitted to consult about a pending case with another judge.

MCJC 2.9 (cont.) • (2) A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received. • (3) A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter. • (4) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge. • (5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law* to do so. • (B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond. (cont.)

Rule 2.9 (cont.) • (C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed. • (D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge’s direction and control.

7-6 • Judge, a state court judge, has presided over the pretrial proceedings in a case involving a novel contract question under the Uniform Commercial Code. During the pretrial proceedings, Judge has acquired considerable background knowledge of the facts and law of the matter and, therefore, is particularly well qualified to preside at the trial. Shortly before the trial date, Judge discovered that his brother owns a substantial block of stock in the defendant corporation. He determined that his brother’s financial interests would be substantially affected by the outcome of the case. Although Judge believed he would be impartial, he disclosed to the parties, on the record, his brother's interest. Is it proper for Judge to hear the case? • Yes, because Judge is particularly well qualified to preside at the trial. • Yes, because Judge believes his judgment will not be affected by his brother's stockholding. • No, because disqualification based on a relative's financial interest cannot be waived. • No, unless after proper proceedings in which Judge did not participate all parties and their lawyers consent in writing that Judge may hear the case.

MCJC Rule 2.11 • (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to the following circumstances: • (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge* of facts that are in dispute in the proceeding. • (2) The judge knows* that the judge, the judge’s spouse or domestic partner,* or a person within the third degree of relationship* to either of them [“Third degree of relationship” includes the following persons: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece], or the spouse or domestic partner of such a person is: • (a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party; • (b) acting as a lawyer in the proceeding; • (c) a person who has more than a de minimis* interest that could be substantially affected by the proceeding; or • (d) likely to be a material witness in the proceeding.

Cont. • (3) The judge knows that he or she, individually or as a fiduciary,* or the judge’s spouse, domestic partner, parent, or child, or any other member of the judge’s family residing in the judge’s household,* has an economic interest* in the subject matter in controversy or in a party to the proceeding. • (4) The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous [insert number] year[s] made aggregate* contributions* to the judge’s campaign in an amount that is greater than [$[insert amount] for an individual or $[insert amount] for an entity] [is reasonable and appropriate for an individual or an entity]. • (5) The judge, while a judge or a judicial candidate,* has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.

(6) The judge: • (a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association; • (b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; • (c) was a material witness concerning the matter; or • (d) previously presided as a judge over the matter in another court. • (B) A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse or domestic partner and minor children residing in the judge’s household. • (C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding

REPUBLICAN PARTY OF MINNESOTA v. WHITE, 536 U.S. 765 (2002), • Casebook p. 748: • The Supreme Court ruled that a provision of the former Model Code of Judicial Conduct, “known as the ‘announce clause,’” that prohibited judicial candidates from “‘announc[ing] his or her views on disputed legal or political issues,’” violated the First Amendment. This case raises numerous issues regarding judicial elections that are discussed in the concurrences and the dissents, and that continue to raise controversy today. Casebook P. 764.

CAPERTON v. A.T. MASSEY COAL CO., INC., 129 S. Ct. 2252 (2009), • Casebook p. 723: • A West Virginia Supreme Court Justice refused to recuse himself from the appeal of a “jury verdict of $50 million,” even though the Justice “had received campaign contributions in an extraordinary amount from, and through the efforts of, the board chairman and principal officer of the corporation found liable[.]” The Supreme Court held that this was “an extraordinary situation where the Constitution requires recusal” as a matter of due process. The court found that “objective standards may also require recusal whether or not actual bias exists or can be proved.” Given the facts in this case, which “’offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance, nice, clear and true[,] the probability of actual bias rises to an unconstitutional level.” Casebook p. 729. • Four justices joined Chief Justice Roberts’s dissent where he argued that “‘probability of bias’ cannot be defined in any limited way[,] provides no guidance to judges and litigants[,] and will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.” Casebook p. 731.

7-7 • Judge is a judge of the trial court in City. Judge has served for many years as a director of a charitable organization that maintains a camp for disadvantaged children. The organization has never been involved in litigation. Judge has not received any compensation for her services. The charity has decided to sponsor a public testimonial dinner in Judge's honor. As part of the occasion, the local bar association intends to commission and present to Judge her portrait at a cost of $4,000. The money to pay for the portrait will come from a "public testimonial fund" that will be raised by the City Bar Association from contributions of lawyers who are members of the association and who practice in the courts of City. Is it proper for Judge to accept the gift of the portrait? • Yes, because the gift is incident to a public testimonial for Judge • Yes, because Judge did not receive compensation for her services to the charitable organization. • No, because the cost of the gift exceeds $1,000. • No, because the funds for the gift are contributed by lawyers who practice in the courts of City.

MCJC Rule 1.13 • (A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law* or would appear to a reasonable person to undermine the judge’s independence,* integrity,* or impartiality.* • (B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the following without publicly reporting such acceptance: • (1) items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards; • (2) gifts, loans, bequests, benefits, or other things of value from friends, relatives, or other persons, including lawyers, whose appearance or interest in a proceeding pending* or impending* before the judge would in any event require disqualification of the judge under Rule 2.11; • (3) ordinary social hospitality;

3.13 cont. • (4) commercial or financial opportunities and benefits, including special pricing and discounts, and loans from lending institutions in their regular course of business, if the same opportunities and benefits or loans are made available on the same terms to similarly situated persons who are not judges; • (5) rewards and prizes given to competitors or participants in random drawings, contests, or other events that are open to persons who are not judges; • (6) scholarships, fellowships, and similar benefits or awards, if they are available to similarly situated persons who are not judges, based upon the same terms and criteria; • (7) books, magazines, journals, audiovisual materials, and other resource materials supplied by publishers on a complimentary basis for official use; or • (8) gifts, awards, or benefits associated with the business, profession, or other separate activity of a spouse, a domestic partner,* or other family member of a judge residing in the judge’s household,* but that incidentally benefit the judge.

3.13 cont. • (C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the following items, and must report such acceptance to the extent required by Rule 3.15: • (1) gifts incident to a public testimonial; • (2) invitations to the judge and the judge’s spouse, domestic partner, or guest to attend without charge: • (a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or • (b) an event associated with any of the judge’s educational, religious, charitable, fraternal or civic activities permitted by this Code, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity as is the judge; and • (3) gifts, loans, bequests, benefits, or other things of value, if the source is a party or other person, including a lawyer, who has come or is likely to come before the judge,

7-8 • The state bar association has offered Judge and her spouse free transportation and lodging to attend its institute on judicial reform. Judge is expected to deliver a banquet speech. Is it proper for Judge to accept this offer? • Yes, unless the value of the transportation and lodging exceeds $500. • Yes, because the activity is devoted to the improvement of law. • No, if members of the bar association regularly appear in Judge's court. • No, because the bar association is offering free transportation to Judge's wife.

MCJC Rule 1.13 • (A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law* or would appear to a reasonable person to undermine the judge’s independence,* integrity,* or impartiality.* • (B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the following without publicly reporting such acceptance: • (1) items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards; • (2) gifts, loans, bequests, benefits, or other things of value from friends, relatives, or other persons, including lawyers, whose appearance or interest in a proceeding pending* or impending* before the judge would in any event require disqualification of the judge under Rule 2.11; • (3) ordinary social hospitality;

3.13 cont. • (4) commercial or financial opportunities and benefits, including special pricing and discounts, and loans from lending institutions in their regular course of business, if the same opportunities and benefits or loans are made available on the same terms to similarly situated persons who are not judges; • (5) rewards and prizes given to competitors or participants in random drawings, contests, or other events that are open to persons who are not judges; • (6) scholarships, fellowships, and similar benefits or awards, if they are available to similarly situated persons who are not judges, based upon the same terms and criteria; • (7) books, magazines, journals, audiovisual materials, and other resource materials supplied by publishers on a complimentary basis for official use; or • (8) gifts, awards, or benefits associated with the business, profession, or other separate activity of a spouse, a domestic partner,* or other family member of a judge residing in the judge’s household,* but that incidentally benefit the judge.

3.13 cont. • (C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the following items, and must report such acceptance to the extent required by Rule 3.15: • (1) gifts incident to a public testimonial; • (2) invitations to the judge and the judge’s spouse, domestic partner, or guest to attend without charge: • (a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or • (b) an event associated with any of the judge’s educational, religious, charitable, fraternal or civic activities permitted by this Code, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity as is the judge; and • (3) gifts, loans, bequests, benefits, or other things of value, if the source is a party or other person, including a lawyer, who has come or is likely to come before the judge,

7-9 • An attorney's law firm regularly represented a large company in its international business transactions. The company became involved in a contractual dispute with a foreign government. The company invoked a mandatory arbitration procedure contained in the contract. Under the arbitration clause, each party was allowed to choose a partisan arbitrator and the partisan arbitrators were to choose an additional arbitrator to sit on the panel. The company selected the attorney to be on the arbitration panel. Neither the attorney nor his law firm had represented the company in connection with the contract with the foreign government. The arbitration was completed, and the company was awarded the sum of $100,000. The company then hired the attorney to enforce the award. The attorney obtained the consent of the other arbitrators before accepting the representation. He was successful in enforcing the award. Is the attorney subject to discipline? • Yes, because the attorney should not have represented the company in a matter in which the attorney had been an • arbitrator. • Yes, because the attorney should have declined the arbitration assignment in view of his law firm's regular representation • of the company. • No, because the attorney obtained the consent of the other arbitrators before accepting the representation. • No, because the attorney was appointed to the arbitration panel as a partisan arbitrator.

Rule 1.12 (d) • (a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. • (b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer. • (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless: • (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and • (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule. • (d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

Chapter 7 Prosecutors and Judges