Legal ethics

1. Legal ethics Robert Blake\Blake criminal jurors.wmvWrongful arrest\Appeal audio.wmv...Ken Marsh.wmv...Kenneth Marsh.wmv...James Giles.wmv...Efren Cruz.wmvMichael Jackson\Tom Mesereau.wmvOJ\OJ After 10 yrs.wmv\Ethics\Spector evid tampering.wmv

2. Attorney – client relationship • Personal responsibility to client -v- responsibility to the profession -v- responsibility to the justice system • Extreme position – “legal agent” - attorney is merely a legal tool of the client • morality is not an issue • may sacrifice values of truth and justice • Middle position – “special relationship” – attorney has special obligation to client • should discourage client from taking immoral actions • Other extreme - “moral agent” position - attorney has responsibility for truth and justice • must avoid harming others • may run against legal interests of client

3. Attorney as a “Legal Agent” • Attorney is a “pure advocate” for their client – no more and no less • Current Bar Association rules state that a lawyer owes “entire devotion to the interest of the client” • ABA rules of conduct • Benefits • Insures that someone is looking out for the client • Adversarial process best way to arrive at truth and justice • Costs • Law is a battle between “legal technicians”, hired guns • Lawyer may have to commit morally objectionable acts - lie, deceive, cheat, hurt others needlessly • Consequences to a lawyer’s character • Legal profession may appeal to unscrupulous persons • Public may develop low regard for the legal system

4. Lawyer as a “moral agent” • Lawyer morally and legally advocates a client’s cause • Adding moral responsibility creates a conflict in principlesMoral autonomy  Duty to client • Presently legal rules forbid: • Knowingly using perjured testimony or false evidence • Knowingly make a false statement of law or fact • Creating evidence known to be or obviously false • Counseling or helping a client commit crimes or frauds • Disclosing confidential communications except in the gravest circumstance (see next slide)

5. Defense Attorneys • Protect defendant due-process rights • Strict responsibility to the client • Must zealously defend • Force prosecution to prove everyelement of the case beyond areasonable doubt • Must not disclose evidence against client • Must turn over physical evidence inthe lawyer’s possession • Must use all legal means to impeach thecredibility of witnesses • Cannot knowingly use perjured statements(“fairness” rule) • If there is doubt, must resolve in client’sfavor • Can’t lie, but no duty to disclose perjury • Cannot intimidate witnesses or obstruct justice

6. The strange case ofDr. Henry Lee • Dr. Henry Lee, one of thenation’s foremost experts onforensic serology, and theman whose testimony in theO.J. Simpson trial effectivelydemolished the credibility of theLAPD crime lab, was accused bytwo former members of Spector’s defense team of removing a key item of physical evidence from the music producer’s residence during a search. This object, which they described as a gunpowder-stained fingernail clipping, allegedly the victim’s, could have been used by prosecutors to argue that a struggle had occurred.These witnesses, who testified outside the presence of the jury, were one of Spector’s former lawyers, attorney Sara Caplan, and private investigator Stanley White.

7. American Bar Association –Rules of professional conduct • Confidentiality – may reveal confidential client information only... • To prevent reasonably certain death or substantial bodily harm; • To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; • To prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

8. Changing the rules • Great opposition to relaxing the rules • Suggested revisions that could permit lawyers to exercise judgment: • Allow disclosure of frauds committed by a client • Allow disclosure of perjury to a judge • Not commit an act that “untenably” harms another • Not do something “unjust” or “morally wrong” even if it clashes with an obligation to the client • None of these revisions are in place!

9. Reasons for and against change • Against: • Subjective moral judgments are unenforceable • Clients would not confide in their lawyers • Adversarial system would be destroyed • Guilty persons will be unable to find a lawyer • For: • Necessity to resolve moral dilemmas • Lawyers should not be expected to have no moral limits • Even if some clients are driven away, or fear to confide in their lawyers, it will not destroy the system • Morality would require that lawyers defend those who seem guilty

10. Ethical dilemma • You are a defense attorney. Your client is on trial for a murder he swears he did not commit. He brings forward one of his “chums”, who swears your client was with him when the murder took place. You are skeptical. But the prosecution’s case is weak, and if this person takes the stand there is a good chance a jury could be persuaded there is reasonable doubt of your client’s guilt. • Identify the most relevant values • Identify the dilemma • Apply the most appropriate ethical theory and resolve the dilemma • What factors might influence how defense lawyers perceive this dilemma, and how they might resolve it?

11. Prosecutors • ABA minimum standards: Cannot prosecute without probable cause • US Dept of Justice (similar rules in most States and localities): • US Attorney’s Manual, sec. 9-27.220: “The attorney...should commence or recommend Federal prosecution...if he/she believes that the person's conduct constitutes a Federal offense...and that the admissible evidence will probably be sufficient to obtain and sustain a conviction....” • Obligation to do justice, not just convict • Even when there is abundant evidence of guilt, prosecutors have discretion whether or not to charge based on Policies and case-by-case decisions • Can consider factors such as seriousness of offense and “criminality” of the accused

12. Prosecutorialmisconduct • Must disclose all potentially exculpatory evidenceto the defense (see ABA rule) • Defense does NOT have a reciprocal obligation • Cannot overcharge to gain leverage in plea bargaining • Cannot “try the case” in the media • Defense does NOT have this obligation • Must not referring to illegal evidence • Must not appeal to the jury’s emotions • Must not lie or deceive the court or defense counsel • Defense only prevented from lying or deceiving the court • Must promptly correct false or inaccurate testimony • Must disclose unfavorable opinions from expert witnesses • Defense does NOT have this obligation

13. Due-process violation of the fourteenth amendmentThe “Brady” rule • Brady v. Maryland (US Sup. Ct., 373 US 83, 1963): Due Process clause of the fourteenth amendment requires the prosecution to disclose potentially exculpatory evidence to defense, including any grounds for impeaching its witnesses. • United States v. Jernigan (9th. Circuit, no. 05-10086, 7/09/2007): A woman convicted of bank robbery was not told that another woman of similar description was arrested for committing bank robberies during the same period in the same area. According to the Court, this was a due process violation, as the withheld information could have been used by the defense to cast doubt on eyewitness identification used to convict the defendant.

14. Due-process violation of the fourteenth amendmentThe KPMG debacle • On July 16, 2007 a Federal judge dismissed charges against 13 persons charged with promoting fraudulent tax-shelter schemes while employed by KPMG, a major Wall Street accounting firm. • As part of its deferred prosecution agreement with the government the company, which had already paid a fine of $456 million dollars, agreed it would not provide free defense attorneys for its employees, a common practice in the industry. • According to the judge, the prosecutor’s actions, which deprived the company’s former employees of attorneys of their choosing, “shocked the conscience” and constitute a due-process violation of the fourteenth amendment.

15. Texas Injustice:The Prosecutor Didn’t Care In 1983 James Giles was arrested for the gangrape of a woman who lived 25 miles away.Police focused on him because of an anonymoustip and the fact that he was on probation forattempted murder. Giles did not match the suspect description – not even close. But after some difficulty the victim identified him. He was convicted on that alone. In prison, purely by chance, Giles met the man who called in the tip. The man realized this was the wrong “Giles.” The James Giles who actually raped the woman lived across the street from her. Police and prosecutors had learned of this years before but buried the report in their files. DNA finally proved that the imprisoned James Giles didn’t do it. The DNA belonged to a friend of the man who committed the rape. The victim’s ex-husband picked the friend from a lineup. The victim now admits she might have been mistaken Giles was paroled in 1993 after doing 10 years. The new Dallas County D.A. accused the old one of not caring who got convicted as long as his conviction rate held up. Giles, who helped three of his fellow prisoners win releases through DNA testing, was the 13th. prisoner from Dallas County to be exonerated through DNA.

16. Texas Injustice:The Prosecutor Didn’t Care #2 In 1983 James Waller was convicted ofraping a 12-year old boy who lived inhis apartment complex. Waller wasthe only Black person who lived there.He was arrested despite the fact thatthe victim described his attacker as asmall man (Waller is 6-5 and heavy set) and said he had never clearly seen his face. Waller was paroled in 1993. He was recently exonerated based on DNA evidence, which excluded him as being the assailant. The true attacker has never been identified.

17. Prosecutors –issues • Most are elected, so they are“political animals” and want tolook good to voters • Eager to prosecute heinouscrimes like rape and murder • Eager to show a “track record”of convictions • Reluctant to admit errors • Reluctant to go after top members of their Party • May have too close a relationship to police • May be co-opted and reluctant to exert supervisory role • Rural prosecutors may lack resources, urban may be overworked • Their local police may suffer from the same constraints • “GIGO” – garbage in, garbage out • “Winning at all cost” -- competitive instinct may trump justice

18. The sad case ofTom Goldstein • In December 2004 Tom Goldstein wasreleased from prison after serving twenty-fouryears for a 1979 murder. His conviction waslargely based on the testimony of a notoriousjailhouse informant, later shown to be a liar,who testified that Goldstein admittedcommitting the murder. Goldstein hasconsistently denied involvement. • In March 2007 the US 9th. Circuit Court of Appeals cleared the way for Goldstein’s civil rights trial accusing the L.A. County D.A. of misconduct for failing to disclose that the jailhouse informant received a benefit for testifying. The informant lied about this on the stand but prosecutors never reported it, thus depriving Goldstein’s lawyer of the opportunity to impeach his testimony. (Goldstein v. Van De Kamp, no. 06-55537, 3/28/07)

19. The sad case of theDuke Lacrosse players • On March 13, 2006 players threw aparty off campus, hired two strippers. • One of the strippers told police thatthree white players forced her into abathroom, where she was beaten, raped and sodomized. Police show the victim photos of Duke Lacrosse players. She picks out three. • In April defense lawyers announce there was no DNA match between any of the players and swabs from the woman. However, there was a DNA match with multiple other males. Nifong keeps this startling finding from the defense. • Two players are indicted for rape, sexual assault and kidnapping. They are released on $400,000 bond. They are suspended from the university. • Information surfaces that when the alleged victim was 14 she accused three men of rape. They were not prosecuted. The accuser became pregnant by someone else weeks after the alleged incident with the Duke students. • In May Nifong wins the primary. Since he is unopposed he is assured of being elected. A second DNA analysis comes up with the same results as the first. • A third player is indicted and suspended from the university. 14 mis.

20. In December the accuser is re-interviewed. She now says that she is unsure if she was penetrated by a penis or a foreign object, and that one of the three defendants was not involved in that aspect of the assault. Nifong drops rape charges, but the sexual assault and kidnapping charges remain in effect. • The North Carolina Bar files ethics charges against Nifong accusing him of making improper comments to the media. • In January 2007 Nifong is re-elected. He asks the state attorney general to appoint a special prosecutor in the case because of his pending ethics case. The Bar accuses Nifong of withholding evidence and lying to the court and Bar. • In April the State prosecutor drops all charges and says the three players are factually innocent. • In June Nifong is tried by the Bar, found guilty of ethical violations and disbarred. • Duke enters into a civil settlement with the three players.

21. Is forensic science“scientific”? • "When you move over to forensic science[from conventional science] there isastonishingly little research to test the fundamental assumptions," says Michael Saks, Professor of Law at Arizona State University. • Saks was interviewed by the Los Angeles Times in connection with the Phil Spector trial, where prosecution experts testified that blood spatter does not travel more than three feet, while defense experts said it can go as far as six or seven feet. • But -- no one had ever shot off a gun inside a living person’s mouth to test a hypothesis about how far blood spray from the mouth can travel. Defense experts cited experiments where blood was dripped on a fan. But the actual experimenter in that study did not testify, probably because his conclusions were too qualified to be useful to the defense. • One problem, said Saks, is that prosecutors and defense attorneys interview experts in advance, screening out those who come to unfavorable conclusions. Then it’s up to the jurors to decide whom to believe.

22. Expert witnesses • Attorneys and experts must be honest as to thelimitations of the testimony • Serious issues have arisen in... • Hair analysis: mistaken identification • Arson investigation: wrongly determining that accidental fires were purposely set • Bite mark analysis: mistaken identification • Other issues • Experts testifying beyond range of theircompetency • “Halo” effect - person with status in one specialty is believed in other areas • Taking sides • Competing experts who each interpret “facts” so they are most favorable to their client

23. A strange twist inthe Spector trial • One of Spector’s former lawyers, attorneySara Caplan, testified in an evidentiary hearing,outside the jury’s presence, that she had seenDr. Henry Lee, a defense expert, take whatappeared to be a broken acrylic fingernail fromthe crime scene. • If true, this would support the prosecution’s claimof a struggle between Spector and the victim,Lana Clarkson. • Dr. Lee vigorously denied this, but the judge didnot believe him. He said that if Dr. Lee took thestand he would allow prosecutors to put witnesses on the stand to impeach him. • Attorney Caplan said that she would invoke attorney-client privilege if called to testify in open court about what she saw. Judge Larry Fiedler threatened her with contempt if she did so.

24. The Wenatchee “child sex ring” • Between 1994-5 forty-three adults were arrested on “horrific tales” of sexually abusing sixty children in Wenatchee. Eighteen were convicted. The investigation was initiated by Wenatchee police detective Bob Perez and joined by State child protective services. Prosecutions were based on interviews with the children and confessions obtained by Perez and his colleagues. • Among those charged with multiple counts of child rape and molestation were several church members: • Pastor Robert Roberson and his wife, Connie; • Honnah Sims, a Sunday-school teacher; • Harold and Idella Everett, two developmentally disabled parishioners. They were accused by their two children, both of whom were living with foster parents: Detective Bob Perez and his wife • Others arrested and prosecuted include: Idella Everett • Carol and Mark Doggett. They were arrested on 1,000 counts of rape after they asked for police and CPS help in dealing with their troubled son; • Michael Rose, a laborer, on 336 counts of child rape • And on...and on...and on

25. Child victim interviews • Many of the victims had a history of making “outrageous” claims of sexual abuse. Others had actually been abused by blood relatives. When they repeated the same accusations against new foster parents they were taken at face value. • After making inconsistent statements filled with “pornographic fiction” to investigators, many children recanted. Their recantations were ignored. • Twenty-nine children were sent for prolonged stays at Pine Crest, a seedy Idaho psychiatric hospital that offered special interrogation techniques. • The detective and CPS workers routinely threw away interview notes. • Things suspects said were purposely twisted by investigators • Statements favorable to the defendants were withheld from their lawyers • Prosecutors filed charges on literally every case brought to them • Judges rejected defense requests to allow expert testimony about false memory syndrome

26. Two kids taken to Pine Crest Sarah Doggett (r), 16, was forcibly taken to Pine Crest by CPS officials, who said she was “suicidal”: “Why did almost all my treatment at Pine Crest deal with me having to remember sexual abuse that never happened? Jessica Cunningham, 17, had previously spent time at Pine Crest. She was sent there by her parents for behavioral problems. Jessica said that the detective and CPS pressed her to say that “my parents did things to me and to my sisters...and if I didn't, I wouldn't get out of Pine Crest...They had their own ideas of what happened in my family. When I disagreed and said they were wrong, they said I was lying. I was hiding the hiding the truth.... I had to remember. I had to talk. Disclosure would make me feel better. It just never ended...I was a prisoner....” Jessica’s mother, Connie, was convicted and got 46 years. She and her daughter later reunited and now live in California.

27. Defendant interviews • “The more I said I didn’t do any of the things [the detective] said I did the angrier he got....He told me I was going to jail for the rest of my life or I could go home, I could have my son back, if I gave him a statement. I said whatever he wanted me to say, just to have it over....” (Got 16 ½ years) • “I asked, ‘can I have an attorney’? He says ‘no, there’s no need for one to be present because we’re just questioning you.’....I wasn’t sure what I was signing because I was flabbergasted.” (Alcoholic, IQ of 73) • “My state of mind when I signed the confession was that I wanted to get out of there and get away from him....[The detective told her she was not a suspect]....I wanted to go home to my own bed, my own house, my own kids. He made promises that I could go if I just signed. What a liar.” (Woman. As an infant, she lost a leg to a hog. Plea bargained, got 40 years.) • “I kept saying ‘no, no, no, no. I want an attorney.’ But he said ‘you don’t need one because you are only a witness’.” (Mother of four, barely literate, had the detective read her the confession. Turned down a plea bargain, was convicted by jury, got 23 years.)

28. Outcomes • The detective no longer works there • Of the eighteen convicted, all have been released • Most convictions were overturned. Some pleas were accepted and entered on lesser, “usually unrelated” charges • Many lawsuits were filed by the defendants: • In December 1999 the State settled with the Robersons and Honnah Sims for $850,000 • In November 2000 Chelan County settled with Roberson, who previously won over $200,000 in damages from a Federal jury • On Sept. 30, 2001, a Spokane County jury found Wenatchee and Douglas County negligent in the investigation of six plaintiffs, including Sims and Roberson. They awarded $3 million to Honnah Sims and her husband.

29. Discussion question What issues of possible ethical significance did the example bring up. . . • Prosecution? • Expert testimony?

30. Issues • Prosecution • Exculpatory evidence • Some witnesses had made outrageous and unfounded claims of sexual abuse in the past) • Recantations and statements favorable to defense ignored • Overcharging – thousands of counts • Extreme punishment possible • How could someone defend against this? • Expert testimony • Coercion • Witnesses in custody • Abuse interviewing techniques • Judge did not allow testimony about false memory syndrome