CHAPTER 10

Ethical Misconduct in the Courts and Responses

Lecture slides prepared by Lisa J. Taylor

“First . . . Let’s Kill All the Lawyers . . .”

• The public has little confidence in lawyers’ ability to live up to ideals of equity, fairness, and justice.

• Both Plato and Aristotle condemned the advocate’s ability to make the truth appear false and the guilty appear innocent.

• The lawyers’ ability to argue either side of an issue raises a level of distrust.

• The law can be a tool of oppression or a sword of power; lawyers and judges are the ones who wield its power.

Attorney Satisfaction

• 50% of lawyers describe their colleagues as “obnoxious”

• 60% of attorneys who practice law for 6-9 years were dissatisfied with their careers.

• Only 55% of lawyers were satisfied with their career.

• Only 44% of all attorneys would recommend law as a career.

Defense Attorney Misconduct

Examples of ineffective counsel in capital cases:

• Attorney use of heroin and cocaine during trial

• Attorney letting defendant wear the same clothes described by victim

• Attorney admitting that he didn't know the applicable law or the facts of the case

• Attorney not being able to cite a single death penalty case holding

• Attorney drinking heavily each day of the trial

•Bribing Witnesses

•Allowing the client to intimidate a witness

•Instructing a client to destroy physical evidence

•Encourage the client to manufacture an alibi

•Allowing the client to commit perjury.

Types of Prosecutorial Misconduct

• Withholding exculpatory evidence.

• Misusing pretrial publicity.

• Using preemptory challenges to exclude potential jurors.

• Introducing false evidence in the courtroom.

• School janitor near Houston, TX.• Female volleyball team member went missing

during practice.• Her body later found—she had been raped

and strangled.

Problems with the Case• One white, one black janitor found her body.• Police said “One of you two is going to hang

for this.”• One officer said, “Since you’re the nigger,

you’re elected.”• Evidence “lost.”• Witnesses coerced.• Contrary evidence ignored.• Defense not told of witnesses.

Clarence Brandley

Arrest and Conviction

(1981)

Examples of Prosecutorial

Misconduct• Concealed evidence that discredited their star

witnesses.

• Suppressed evidence that a murder occurred when the defendant had an alibi.

• Depicted red paint as blood.

• Portrayed hog blood as human.

• Suppressed statement of eyewitnesses that were white when prosecuting black men.

Types of Prosecutorial Misconduct

• Received a weapon from the crime scene, but hid it.

• Hid blood-spatter expert’s report that supported the defendant.

• Withheld evidence that an informant had framed the defendant.

• Concealed evidence indicating that a chief witness was, in fact, the killer.

Judicial Misconduct

Judicial misconduct is rare, but does occur.

Neutrality is questioned when judges voice strong opinions on issues or cases.

A judge may recuse him/herself if he/she has a vested interest in the issue or one of the parties involved.

Often the mere appearance of impropriety is sufficient to warrant recusal.

Lack of courtroom decorum could, in extreme cases, represent judicial misconduct.

Examples of Judicial Misconduct• Failing to inform defendants of their rights• Coercing guilty pleas• Exceeding sentencing authority• Exceeding bail authority• Denying full and fair hearings• Abusing criminal contempt power• Ignoring probable cause requirements• Denying defendants’ rights• Penalizing defendants for exercising their rights

• Accused of:o Mishandling two Ohio family court

cases.o Abusing the rights of those who came

before her.o Not following the law, and violating

judicial rules.o Forcing a woman to present her own

case without her attorneys and prohibiting her from speaking to them.

o Not allowing a court reporter to record proceedings.

o Denying attorneys the ability to appeal her decisions.

Judge Carole

Squire, Columbus,

Ohio(2005)

Thinking

Point

A Wisconsin Judge has been issued a verbal reprimand for refusing to hear cases. Judge John Zodrow openly announced to the Wisconsin Judicial Commission that, “the cases can sit and collect dust until hell freezes over” for all he cares. Zodrow was protesting the lack of clerical assistance his office received. Zodrow has since lost his bid for reelection.

Was Zodrow’s behavior “misconduct”?

Was he punished appropriately?

Justice on Trial?

False convictions have occurred due to:• mistaken eyewitness testimony• perjury by informants• police and prosecutorial misconduct• false confessions• “junk science”• ineffective assistance of counsel• racial bias• “confirmatory bias”

• Arena’s cousin accused Arena of molesting her as a 7-year-old.

• That same cousin has submitted sworn affidavits saying she lied about being sexually assaulted at the urging of her mother, who was embroiled in a bitter custody battle.

• Arena was labeled a pedophile based on a misused psychological test with a 35% error rate.

• Texas Supreme Court threw out Arena’s 20-year sentence.

• New sentencing hearing pending.

Michael ArenaTexas(1999)

Justice on Trial?

• Innocence Projects identify and help those who were wrongly convicted (over 300 thus far).

• Estimates are that 1–15% of convictions are of innocent people.

• System has subtle bias of presumption of guilt.

• Appellate mechanisms exist in all states and the federal system to rectify identified errors—why don’t they?

• System only as good as the individuals who make the decisions.

Two Perceptions1. “Is it better for 100,000 guilty men to walk free rather

than have one innocent man convicted? The cost–benefit policy answer is no.” (prosecutor)

2. “No rate of preventable errors that destroy people’s lives and destroy the lives of those close to them is acceptable.” (law professor)

Which of these statements represents ethical formalism? Which statement represents utilitarian

thinking?

Prosecutorial Misconduct and Noble Cause Corruption

• Confirmatory bias- human tendency to confirm instead of disconfirm.

• Selective information processing- only recognizing evidence to fit one’s own theory.

• Belief Perseverance- believing one’s theory despite evidence to the contrary.

• Avoidance of cognitive dissonance- adjusting beliefs to maintain existing self perceptions.

Responding to Misconduct

• ABA offers formal and informal opinions when impropriety have been made.

• State bar association can sanction offending attorneys in private or in public.

• Only 3 percent of investigations by state disciplinary committees result in public sanctions.

• Only 1 percent of investigations end in disbarment.

• United States Department of Justice creates a list of attorneys that have been disciplined.

• The term “expelled” on the list has been replaced by “disbarred.”

• Sanctions can also be in the form of suspensions.

• List covers suspension since 2000.

List of Currently

Disciplined Practitioners

(as of 8/2012)

Judicial Independence and the Constitution

Judges wield great discretion that should be used without bias.

Like the rest of us, judges are grounded in their personal ethical belief system.

Implementation of law (as with creation of law) can be a political process (note: firing of U.S. Attorneys).

The judiciary is supposed to be separate from the executive or legislative branch of government, but is it?

Judicial Independence and the Constitution

An independent judiciary is a fundamental tenant of the American governmental system.

But judges are not completely independent, as they must either stand for election or be appointed.

“Conservative” judges—strict constructionists—support individual rights specified in the Constitution or created by some other recognized legal source.

“Liberal” judges—interpretationists—support rights that the Framers might have recognized or that should be recognized due to “evolving standards.”

The United States Supreme Court

• The Court’s immense power makes it politically crucial for both conservatives and liberals to try to exert control over it.

• Every vacancy results in fierce political battles over the candidates.

• Historically, the assumption that certain justices will vote a specific way on specific issues is inaccurate.

• Justices are guided by common-law doctrine, the Constitution, and their individual ethical orientation, in addition to political considerations.

Where do your rights come from?

• From the Constitution, law, or governmental edict?

• “Inalienable rights” inherent in being human only recognized by these documents

• What are your “natural” rights?

Natural Rights• To be free.

• To be treated equal to other groups.

• To be able to make decisions about personal matters without governmental interference.

• To be free from torture and punishments that degrade the human spirit.

• To have some protections against state power.