CHAPTER 9

Discretion and Dilemmas in the Legal Profession

Lecture slides prepared by Lisa J. Taylor

Defense Attorneys

• Defense attorneys are often in the position of defending clients they know are guilty

• A lawyer is supposed to assist clients without regard for personal preference or interest

• People with unpopular causes and individuals who are obviously guilty still deserve counsel

• It is the ethical duty of an attorney to provide such counsel

Responsibility to the ClientAttorneys cannot abandon their clients unless:• the legal action is for harassment or malicious

purposes,

• continued employment will result in violation of a disciplinary rule,

• discharged by a client, or

• a mental or physical condition renders effective counsel impossible.

Conflicts of Interest

Attorneys must not represent clients whose interests conflict with those of the attorney.

Attorneys must not represent two clients with opposing interests.

If a heavy caseload compels an attorney to advise his or her client to accept a plea bargain instead of going to trial, has the attorney violated prohibitions against conflict of interest?

Plea Bargaining• Is considered by most to be efficient and

probably inevitable, if not exactly “right”

• Makes sense if the goals of the system are crime control or bureaucratic efficiency

• Is harder to justify if the goals of the system are due process and protection of individual rights

Zealous Defense

Defense counsel must zealously defend client, but not commit unethical acts to do so. Counsel may not:•engage in motions or actions to intentionally and maliciously harm others,

•knowingly advance unwarranted claims or defenses,

•conceal or fail to disclose that which he or she is required by law to reveal,

•knowingly use perjured testimony or false evidence,

•knowingly make a false statement of law or fact,

•participate in the creation or preservation of evidence when he or she knows or it is obvious that the evidence is false,

•counsel the client in conduct that is illegal, or

•engage in other illegal conduct.

Aggressive advocacy sometimes involves the use of ethically questionable tactics.

Jury Consultants• preparing witnesses

• assisting with mock trials

• developing desirable juror profiles

• conducting phone surveys on public attitudes about a case

• analyzing “shadow juries”

• giving advice on effective posture, clothing choice, and tone of voice

Confidentiality

Attorney–client privilege prevents compelling attorneys to disclose confidential information about their clients.

Exceptions that permit revealing confidences include:

•When clients consent•When required by law or a court•To defend against an accusation of wrongful conduct•To prevent clients from committing crime or fraud•To prevent, mitigate, or rectify financial injury to another

Perjury

• By rule, an attorney cannot allow perjury by the defendant.

• Passive role (do not refer to perjury)• Active role (inform court)• If perjury occurs before the attorney realizes the client’s

intent, the defense must not use or refer to the perjured testimony.

If a defendant commits perjury but the attorney does not know it is perjury, might this lead to a “don’t ask, don’t tell” mentality?

Resolving Ethical Dilemmas for Defense Attorneys

• The situational model weighs each case on its particular factors

• The systems model considers the guiding ethical rule to determine rightness or wrongness of a behavior

Prosecutors

• Must seek justice, not convictions

• Have discretion to charge or not charge defendants—one of the most important decisions in the criminal justice process

• The decision to charge:- May be influenced by politics- Is especially sensitive in capital cases

• Mother of 2-year old Caylee Anthony.

• Caylee was reported missing by her maternal grandmother on July 15, 2008.

• Caylee’s remains were found on December 11, 2008.

• Casey fabricated several stories about her daughter’s disappearance, and was ultimately charged in the case.

• Trial lasted 6 weeks (from May-July, 2011).

• Casey was found not guilty on murder charge, but found guilty of providing false information to police.

• Public outrage ensued – many thought the jury misunderstood the meaning of reasonable doubt.

Casey Anthony

(2008)

Prosecutors’ Discretion to Charge

• Legal sufficiency

• System efficiency

• Defendant rehabilitation

• Trial sufficiency

• Willingham was asleep when his daughter woke him up and said his house was on fire. Willingham said he was unable to get his 3 daughters out of the house, and they were killed in the fire.

• Investigators initially indicated the fire was arson, and Willingham was arrested, convicted, and eventually placed on death row.

• It was later discovered that the original evidence was faulty and not based on fact.

• Another investigator determined that the fire was caused by a candle or space heater – but Willingham was executed anyway.

Cameron Todd

Willingham(1991)

• Problems related to part-time prosecutors

• Problems related to a prosecutor’s political aspirations

• Problems related to asset forfeiture laws

Conflicts of Interest

• Franklin County (Columbus),OH prosecutor.

• Ran for Ohio Attorney General while also investigating Tom Noe’s failed state rare coin funds and government corruption case in Ohio.

• Questions arose about whether he could carry out his duties impartially, as prosecutor, while also running for state office.

• O’Brien was running on the Republican ticket, while also investigating and perhaps prosecuting Republicans for potential ethics violations.

Ron O’BrienFranklin County

Prosecutor(2006)

Media Relations

• No out-of-court statements should be given that would materially prejudice a proceeding

• Statements regarding the general nature of the charge and information that is public record are permissible

Expert Witnesses• May provide testimony based on principles

generally accepted in the scientific community

• Benefit from a halo effect when their expertise in one area results in their receiving deference in other areas

• Lose credibility after gaining a reputation as a “hired gun” by always appearing on one side of an issue.

CSI and the Courts

Popular television programs suggest that scientific methods are infallible in solving crimes.

But serious questions arise over laboratory management practices, the veracity of technician testimony, and the very nature of the “sciences” involved:

• Hair analysis: a highly suspect field

• Arson investigation: recent findings conflict with established beliefs

• Ballistics testing: lead comparison analysis debunked

• DNA testing: an evidentiary minefield

• Fingerprint analysis: estimated to yield false positives in up to one quarter of all comparisons

• Bite mark comparisons: cannot be reliably measured

Joyce Gilchrist

(2001)

• Former forensic chemist.

• Participated in over 3K criminal trials over 21 years while working with the Oklahoma City PD.

• Her evidence and testimony led to 23 people being sentenced to death—11 of whom have been executed.

• She was dismissed for falsifying evidence.

• Gilchrist alleges she was dismissed for reporting sexual misconduct.

• Multiple cases she testified on continue to work their way through the court system.

Thinking

Point

In early August of 2010, the North Carolina State Bureau of Investigation was proven to have misrepresented or completely hidden test results for approximately 230 cases which involved blood work. It is believed that an internal audit laid the groundwork to establish faulty, unethical procedures by many of their lab analysts. Corrupt law enforcement, attorneys, and judges have been discussed.

What, if anything, differentiates the lab analysts?

Can such unethical behaviors be prevented?

Judicial Discretion

Occurs in two major areas:• Interpretation of the law

• Sentencing

Interpretation of the law includes:• Ruling on admissibility of evidence

• Ruling on objections during trial

• Writing critical jury instructions

Discretion: Exclusionary Rule

Interpretation of the law may necessitate invoking the exclusionary rule.

A fair society cannot accept a conviction based on tainted evidence.

Thus, illegally obtained evidence cannot be used (is excluded) at trial.

This serves to discourage police from breaking the law in a misguided effort to enforce the law.

Some exceptions are allowed, including: Public safety Good faith Inevitable discovery

Discretion: SentencingSentencing raises unique ethical issues.

Is there a single acceptable punishment for a certain type of offense or offender?

Does justice depend on community opinion of the crime, the criminal, and the proposed punishment?

Sentencing inconsistencies occur between individual judges in the same community.

Controversy and recent court decisions regarding Sentencing Guidelines illustrates importance of judicial role in preserving due process.