Wrongful arrest, conviction/Ken Marsh.wmv Ethics of Virtue (Aristotle) People not born good but become good by following a moral exemplar Focus on character - not acts Natural Law Morality is part of the natural order; there are universal rights and wrongs What is good is what conforms to the natural order of things (e.g. preserving life) Religion Moral guidelines for how to live ones life. Gods will is beyond question. Ethical formalism (Kant) Concerned only with the nature of an act, not its consequences Categorical imperative: Could an act become a rule of nature? If so, it is good Utilitarianism (Bentham and Mill) Measures an acts goodness according to its consequences to all concerned Purpose to produce the greatest benefit for all concerned - the best ratio of good to evil Ethics of care What is good meets the needs of everyone. But the individual is never sacrificed. Emphasis on empathy and compassion Situational ethics Attempt to reconcile relativism and ethical formalism Apply basic principles of right and wrong; takes into account effects on all concerned Lawyers cannot purposely harm others, lie or knowingly use perjured statements (Rule 3.4, fairness), knowingly advance bogus claims or defenses, intimidate witnesses or obstruct justice (Rule 3.4, fairness) Lawyers must be candid with tribunals, fair to opposing parties, etc. Prosecutors role to pursue justice, not just gain a conviction Lawyers must maintain confidentiality (attorney-client privilege) Exceptions (Model Rule 1.6)(Model Rule 1.6 Client consents; to prevent death or serious bodily harm; to keep lawyers services from being used to commit serious fraud; to comply with law or court order; to help lawyer defend from accusations of misconduct Some State Bar rules are broader Massachusetts and Alaska allow disclosure to prevent wrongful incarceration Utilitarianism: Confidentiality benefits society in the long run - breach it only to preserve life Ethical formalism: Categorical imperative extends the rule of confidentiality, making it a universal law for everyone to keep a confidence Concerns with duty (i.e., the lawyers duty to the client) are foremost Ethics of care: Concerned with the well-being of others, not just the client Resolving ethical conflicts when administering the law (Aronson) Systems model: Behavior is ethically right or wrong depending on the rules. If the rule is that the lawyer must always hold a confidence, so be it. If the rule specifies exceptions, so be it. Situational model: Lawyers weigh priorities and decide case-by-case according to specific factors present. Issues raised by extreme cases, such as Logan (legal analysis)legal analysis Is the law a fixed phenomenon? Can it adapt to emerging issues? How far should loyalty extend? When rights are in conflict, who is most entitled to prevail? A client or a wrongfully convicted person? 12 mis. Strict responsibility to the client Must avoid conflicts of interest Cannot represent persons with incompatible positions Must guard against bargaining away clients rights Must zealously defend Force prosecution to prove every element of the case beyond a reasonable doubt Protect defendant due-process rights Use all legal means to impeach the credibility of witnesses Example of a zealous (and successful) defense On May 4, 2001, actor Robert Blake and his late wife, Bonnie Lee Bakley had dinner at a restaurant. Blake walked back to the restaurant, supposedly to pick up a gun he left behind. When Blake returned to the car he found Bakley dead of a gunshot wound to the head. Evidence suggested that Blake had solicited Bakleys murder and that it was a contract hit. But Blake was acquitted, leading the prosecutor to call jurors incredibly stupid. Blake was sued by their three eldest children. He was found responsible for the killing and ultimately ordered to pay $15 million. 6 mis. Obligation to do justice, not just convict ABA: Cannot prosecute without probable cause US Dept of Justice (similar rules in most States and localities): US Attorneys Manual, sec : 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.... US Attorneys Manual, sec Brady motion - obligation to disclose potentially exculpatory evidence 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 (also see ABA rule) Brady v. MarylandABA rule Discretion Even when there is abundant evidence of guilt, prosecutors can decide not to charge, or to charge a lesser offense. Legitimate considerations include: Seriousness of offense Criminality of the accused Amount and quality of evidence Likelihood of obtaining a conviction On March 13, 2006 players threw a party off- campus, hired two strippers. One of the strippers told police that three white players forced her into a bathroom, 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. Three players are indicted for rape, sexual assault and kidnapping. 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 December the accuser 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. 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, withholding evidence and lying to the court. In June 2007 Nifong is tried by the Bar, found guilty of ethical violations and disbarred. Duke enters into a civil settlement with the three players. 9:24 Conflicts of interest May be political animals and want to look good Eager to show a track record of convictions; unwilling to concede errors Too close a relationship with police Reluctant to exert supervisory role over law enforcement Overzealousness Winning at all costs -- competitive instincts or personal ambitions may trump justice Other issues Plea bargaining - overcharging to gain leverage Media relations - trying cases in the media Physical evidence - keeping quiet about unfavorable findings Expert testimony - Using unreliable experts or hiding unfavorable opinions Asset forfeiture - Abusing the law; seizing property and vehicles to make money for government (in civil forfeiture the burden of proof is less) 13 mis. 9 mis. Forensics not nearly as straightforward as CSI suggests 2009 National Academy of Sciences reports serious issues in many areas, including Hair analysis April 2015: FBI admits errors in hundreds of cases where their experts testified Arson investigation: wrongly determining that accidental fires were purposely set Mistaken execution of Cameron Todd Willingham in 2004 for 1999 fire that killed his three children Bite marks (click here for Eddie Lee Howard case)here Other issues Experts testifying beyond range of their competency 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 4.2 mis. 6 mis. 3 mis. 2.5 mis. 4 mis. ABA Model Code of Judicial Conduct - 4 Canons: ABA Model Code of Judicial Conduct 1. A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety 2. A judge shall perform the duties of judicial office impartially, competently, and diligently 3. A judge shall conduct the judges personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office 4. A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the integrity or impartiality of the judiciary. Expectations that judges are impartial, knowledgeable and authoritative and that their decisions are objective Potential sources for conflicts of interest Eighty-seven percent of judges are elected Judicial campaigns largely directed and funded by lawyers Recusal is most frequent remedy, but often left to a judges discretion 2:40 Main areas of discretion Interpreting laws and rules Sentencing Interpreting the law: the exclusionary rule Generally prohibits use of illegally obtained evidence But judges have wiggle room, with exceptions including good faith, public safety and inevitable discovery Sentencing Large disparity of sentences suggest judges often apply personal standards In April 2015 an Orange County, CA judge refused to impose a mandatory 25-to-life sentence on a man convicted of raping a 3-year old girl, using the cruel and unusual punishment clause to reduce the term to 10 years Supreme Court has ruled against mandatory Federal sentencing guidelines, which long reduced variation in sentences handed down in Federal courts 2:00 2:43