CHAPTER

Learning Objectives: � To appreciate John Rawls’

theory of justice and the “greatest equal liberty” principle.

� To recognize the importance of the Model Rules of Professional Conduct for prosecution and defense conduct.

� To understand what a “mob lawyer” is and the proper role of a defense attorney in criminal cases.

� To assess the scope of a prosecutor’s discretion and its implication for ethical conduct.

� To evaluate the nature of plea bargaining and the ethical dilemma it creates.

� To understand the ethical underpinnings of sentencing decisions.

Courts How Ought a Case Be Adjudicated?

Everyone has a reason for what he or she does, and itis the task of the adjudication process to evaluate theacceptability of the reasons offered. Consider the case of former U.S. ambassador Joseph Wilson, who wrote an editorial in the New York Times criticizing President

A man’s habits become his character. —Edmund Burke (1729–1797)

7

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George W. Bush for falsely linking Iraq to African uranium in his 2003 State of the Union speech. A few days later, the name of Central Intelligence Agency (CIA) agent Valerie Plame, Wilson’s wife, was leaked to the press. It is a felony to reveal, and thereby endanger, the identity of a CIA agent. Wilson alleged that the exposure of his wife was retaliation by the Bush administration for his critical editorial. Journalists reported that Bush administration officials had revealed the CIA agent’s identity, and after failing to learn the identity of the leak from government officials, the U.S. attorney general began issuing subpoenas to journalists contacted by Bush officials. Many of the reporters insisted that First Amendment guarantees of free press should protect them from such subpoenas, claiming their promises of confidentiality to sources are needed to protect those leaking information that serves the public good by making government more transparent and accountable. The judge disagreed, citing an earlier U.S. Supreme Court case that held, “We cannot accept the argument that the public interest in possible future news about crime . . . must take precedence over the public interest in pursuing and prosecuting those crimes.” The judge ordered several reporters to serve jail time for refusing to testify before a grand jury investigating the matter, noting that “all available alternative means of obtaining the information have been exhausted, the testimony sought is necessary for the completion of the investigation, and the testimony sought is expected to constitute direct evidence of innocence or guilt.”1

This case illustrates the need to carefully assess (and then adjudicate) the claims of the journalists in not revealing their sources. It must be determined whether the justification they offered is valid, which is the fundamental role of ethics in decisions affecting criminal justice. For example, the judge in this case is faced with balancing the goods to be achieved from solving the alleged leak of a CIA agent’s identity versus protecting future journalistic sources from being revealed. The total possible happiness to be achieved from a short-term goal (solving this case) versus a long- term goal (protecting journalists’ sources) points to the problem of utilitarianism in measuring and comparing different consequences because the possible outcomes and their impacts are not always apparent or predictable. Formalism would frame the decision as asking which is the better universal rule: “It is in the public interest to always protect a journalist’s sources from being revealed” or “Journalists must reveal their sources in cases involving endangering a government agent, when all other avenues of investigation have been exhausted.” Finally, virtue ethics would frame the judge’s decision in determining whether a real good (knowledge or civil peace) is being pursued in accord with the moral virtues (especially prudence and justice). Would you make the same decision as the judge did in this case?

DOING JUSTICE

The criminal justice system is designed to enforce moral rules that have been written into the criminal law. Aristotle believed that justice consists of giving each person his or her due. The Preamble to the U.S. Constitution reads

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

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The real goods of civil peace and liberty are expressly mentioned, as is the moral virtue of justice, showing their centrality not only for individuals but for entire societies as well. Kant believed that justice does not specify what each person is owed, so he added that a just rule or law exists when reasonable persons would accept the rule for themselves.

John Rawls (1921–2002) was a twentieth-century philosopher who posited a theory of justice, stating that there are two principles of justice acceptable to all people: (1) Each person is free and worthy of respect, and liberty is restricted only out of respect for the liberty of others, and (2) social and economic opportunities must be open to all even though outcomes may be different. Inequalities should not unfairly burden any segment of society. Rawls’s view implies a tension between freedom and equality, and he shows a concern for the social justice in society. He believes justice and fairness are different concepts. Justice applies to all people at all times, whereas fairness occurs when a person has the opportunity to decline (e.g., a school or a job). According to Rawls, the highest good is the “greatest equal liberty principle,” which means that every person should have the right to liberties equal to those of everyone else having the same rights. Inequality is accepted only if it benefits the underprivileged.2

Crime and justice are linked in ethical terms in that conduct is criminalized to maintain social justice and order. Under ideal conditions, when everyone is acting justly, crime will not occur. In a similar vein, James Madison, fourth president of the United States, stated in the federalist papers in 1788, “If men were angels no government would be necessary and if angels governed, no controls on government would be necessary.”3 As this chapter describes, there is a long history of constitutional interpretation dealing with the balance to be struck between the public interest in apprehending and adjudicating crime suspects and the interest of private individuals to be left alone.

Public opinion is mixed regarding how this balance is achieved in practice. A Gallup poll asked an important question in 2000 and again in 2003.4 The question and answers are presented in Table 7.1. There was a slight drop in citizen ratings of fairness of the criminal justice system (which includes police, courts, and corrections) from 2000 to 2003, but two- thirds (66 percent) of the public believe the system is fair in its treatment of those accused of crimes. This suggests that a clear majority of citizens believe that justice is occurring, but it is still troubling that one-third (32 percent) do not. Therefore, it is important that the meaning and application of justice in practice be considered carefully because public opinion, public confidence, and public support of the justice system are crucial in a democratic society. Consensus that criminal justice decisions are based on objective principles of ethics and justice is needed to defend and uphold confidence in the justice system when difficult or controversial decisions are at issue.

TABLE 7.1

In general, do you think the criminal justice system is very fair, somewhat fair, somewhat unfair or very unfair in its treatment of people accused of committing crime?

Year of Survey Very or Somewhat Fair Very or Somewhat Unfair

2000 67% 29% 2003 66% 32%

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PROSECUTOR MISCONDUCT

Lawyers have bad reputations; they are always ranked among the lowest of the professions in terms of public confidence. As it turns out, they have had this image for a long time. Both Plato and Aristotle wrote disparagingly of advocates who misrepresented the truth, making the guilty appear innocent. In the modern era, the American Bar Association adopted Model Rules of Professional Conduct in 1983, recognizing that “virtually all difficult ethical problems arise from conflicts between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own self-interest in remaining an upright person while earning a satisfactory living.” This excerpt from the Preamble to the Model Rules might be applied to any profession. Most ethical dilemmas involve balancing self-interest; duty to clients, customers, or colleagues; and responsibility to the profession. In a nod to the central importance of ethical principles, the Model Rules also state in the Preamble that difficult issues “must be resolved through the exer- cise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.”5 It is those basic ethical principles that underlie the Model Rules and are the substance of ethics. The Model Rules merely attempt to apply those principles to law-related situations.

The conduct of some prosecutors before and during trial has generated a great deal of concern on ethical grounds. A well-known instance of clearly unethical conduct is from the case Miller v. Pate, in which the prosecutor concealed from the jury that a pair of underpants with red stains on it were stained by paint, not blood.6 In other cases, prosecutors have tried to prejudice a jury against a defendant with deliberately inflammatory and untrue statements. For example, a prosecutor said in his summation, the defendant and his lawyer “are completely unable to explain away their guilt.”7

According to one prosecutor, the reason professional misconduct takes place is because “it works.”8

This utilitarian rationale assumes that the intended good that results (conviction) outweighs the pos- sible negative consequences (misleading the jury, undermining the adversary process, and possible erroneous convictions). Therefore, even a utilitarian argument does not support the practice, and for- malism and virtue ethics would reject it on principle, regardless of the outcome achieved.

The reason the practice of untruths in court “works” is because there is inconsistent enforcement of the legal and ethical rules of prosecutor conduct. In one case, a conviction was upheld, even though the appellate court found the prosecutor’s comments to be “totally out of order,” and the prosecutor was not penalized in any way.9 An analysis of conflicting and inconsistent court decisions on this issue concluded that “they demonstrate the utter failure of appellate courts to provide incen- tives for the prosecutor to control his behavior . . . very little guidance is given to the prosecutor to assist him in determining the propriety of his actions. Clearly, without such guidance, the potential for misconduct significantly increases.”10 Appellate courts can correct or punish prosecutors with a warning, reversing the case, or by publicly naming the prosecutor. They cannot be fined, because the U.S. Supreme Court has held that prosecutors are not personally liable for misconduct in presenting a case.11 Although some degree of immunity from liability is desirable, a complete shield from liability when misconduct occurs does nothing to prevent misconduct from continuing in the future.

These cases illustrate that professional misconduct sometimes has short-term rewards (e.g., convictions, personal popularity), but longer-term consequences are left for others to deal with (e.g., miscarriages of justice, low public regard for lawyers, declining public support for the criminal justice system). Without external checks through meaningful review of professional decisions, these important decisions can become self-serving, promoting only self-interest rather than public interest.

Of course, there are occasional cases where a prosecutor might intentionally lose a case when he or she believes the individual charged is innocent. These cases are normally handled by reducing

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charges or having the case dismissed, but in a New York City case an assistant district attorney (ADA) intentionally lost a case that his supervisor told him must be prosecuted. The ADA had to weigh the demands of ethics against his obligation to his office. He was ordered to take the case to course and let a judge decide it, even though his 2-year investigation of the facts led him to believe the suspects were innocent. The ADA helped the defense lawyers in the case in handling witnesses, and the suspects were ultimately freed.12 This kind of case is rare, but it illustrates that both prosecu- tion and defense must advocate for their clients (the public and the accused), but there is also a duty to seek the truth, which sometimes is lost in the workings of the adjudication process.

DEFENSE MISCONDUCT

Kevin Rankin was a lawyer for the Philadelphia Cosa Nostra organized crime group. He obtained statements and testimony that he knew were false on behalf of family members charged with crimes. He also paid off a corrections officer to perjure himself.13 Rankin was ultimately convicted for his role as a participant in an organized crime narcotics conspiracy and was sentenced to 54 years in prison.

Bruce Cutler was the attorney for New York City Gambino family mob boss John Gotti and later for Gotti’s son. Prosecutors successfully disqualified him from representing the Gottis in several cases, arguing that he had a conflict of interest because of his friendship with his clients and participation in some of the events that would be raised at trial. The prosecution claimed Cutler was “as integral a part of the Gambino family as any of its members.”14

Frank Ragano spent 30 years representing alleged organized crime figures, such as Santo Trafficante of Florida, Carlos Marcello of New Orleans, and Jimmy Hoffa of the Teamster’s Union.15 After the deaths of Trafficante and Marcello, Ragano recounted in a book that he was seduced by the power and influence of these individuals and ultimately decided to leave his circle of clients. As a mob lawyer, Ragano confessed that “my gravest error as a lawyer was merging a professional life with a personal life. Ambition and aspiration for wealth, prestige, and recognition clouded my judgment. . . . Representing Santo and Jimmy was a shortcut to success—too much of a shortcut.”16 He admitted that he “crossed the professional line” when he became intimate friends with his infamous clients. He “gradually began to think like them and to rationalize their aberrant behavior. Their enemies became my enemies; their friends, my friends; their values, my values; their interests, my interests.”17 Ironically, an Internal Revenue Service (IRS) audit of his tax records was ordered soon after his successful defense of Trafficante, and Ragano was sentenced to a year in prison. Can you explain Frank Ragano’s behavior as a mob lawyer in ethical terms?

In an effort to deter conduct such as that of Frank Ragano, the government has turned to forfeiture laws. Under forfeiture laws, the proceeds of organized crime-related activity may be forfeited to the government. Lawyers argue that if the fees paid to them by organized crime-linked defendants can be forfeited under this provision, attorneys will avoid representing this kind of client, which impacts on a defendant’s right to counsel and due process.18 If defense attorneys are required to ask their clients about the sources of their legal fees, would it set a poor precedent for “high- profile” defendants? Should their physicians and accountants be required to ask the same question? Some would say yes, whereas others see this as neither workable nor desirable, compromising the attorney–client privilege by making lawyers monitor the sources of their clients’ funds.19

Defendants do not have a right to high-priced counsel, but should they have the right to use proceeds from crime to pay lawyer’s fees or living expenses during court proceedings? Other countries permit defendants to use suspected illegal funds to defend themselves and for living expenses during trials, but the United States does not:

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If a criminal robbed a bank and was caught holding the bags of cash taken from the vault, I think we would all agree that the money would be returned to the bank and the robber . . . not be entitled to use the proceeds of his crime to pay for lawyers to mount his defense. It should be no different for other types of crimes.20

The tension between a professional having to know the source of his or her client’s funds and a defendant’s use of alleged illegal funds for legal representation creates a difficult dilemma that deters some attorneys from taking organized crime cases. The ethical issues of representing a notorious client are compounded by the high personal cost such representation might entail. The government uses a utilitarian calculus to discourage representation of targeted clients by raising the possibility of adverse consequences for the defense attorney.

For all lawyers in prosecution, defense, or private practice, there is “no uniform or coordinated procedure” for federal, state, and local jurisdictions to exchange information regarding disciplinary problems with attorneys. Attorneys disciplined in one state, for example, “are not automatically scrutinized in other states where they may also be licensed to practice.” There is also “no formal arrangement” where state bar disciplinary committees are notified of disciplinary actions or convictions against attorneys in federal court within or outside their state.21 This allows attorneys to move to different jurisdictions and continue using unprofessional conduct. A system that does not consistently punish those who violate the law or the rules of professional responsibility tacitly promotes it. Therefore, defense attorneys, like prosecutors, need meaningful oversight of their decisions to ensure their congruence with public interest.

ISSUES AT TRIAL

Darrell Harris was placed on trial for killing three people and seriously wounding a fourth at a Brooklyn social club. It was the first capital punishment case to be tried after New York State had reinstated the death penalty. Harris was charged with robbing the victims of $200 and then killing them because he wanted no witnesses. His defense attorney claimed that Harris “lost control and snapped” during this incident because he suffered from posttraumatic stress disorder from the “combatlike” work conditions in the jails when he worked as a corrections officer.22 In addition, Harris’s attorney argued that Harris’s mental health was affected by a chaotic and abusive childhood, spinal meningitis that caused brain damage, cocaine and alcohol abuse, and failure to hold a job. Two days before the homicides occurred, Harris was fired from his job as a security guard. He also had discovered his car had been towed. Previously, he had resigned from his job as a corrections officer after failing a drug test.

These claims bear little relationship to the charges filed, and they feed the perception that defense attorneys focus less on seeking truth than on exoneration of their clients at any cost.23

Cases such as this one raise other questions as well: “What are the limits of proper representation, and what is the purpose of the adjudication process?”

In criminal cases, police and prosecutors attempt to establish criminal liability. This involves establishing the presence of the elements of the crime that subject the accused person to criminal penalties. Defendants, and defense lawyers working on their behalf, attempt to establish reasons why the act in question, the suspect’s state of mind, or the circumstances of the incident establish a case for acquittal. In many cases, the defense will stipulate that the act and harm were both caused by the defendant but that there is a valid excuse for the defendant’s conduct. In most cases, the defendant ultimately admits to the conduct in question, leading to the question: “Should a lawyer defend a guilty person?”

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Some people wonder how defense attorneys live with themselves after they help a guilty person be exonerated, but this view overlooks the fact that defense attorneys represent only the legal rights of defendants, not their past, their personality, or their guilt or innocence. In fact, it is “not their job to decide who is guilty and not. Instead, it is the public defender’s job to judge the quality of the case that the state has against the defendant.”25 According to the standards of the American Bar Association, “the defense lawyer is the professional representative of the accused, not the accused’s alter ego.”26

In a murder case that was appealed to the U.S. Supreme Court, a defense attorney did not permit his client to testify falsely about whether he had seen a gun in the hand of the victim. The defendant claimed that he was deprived of effective assistance of counsel because of his lawyer’s refusal to permit the defendant to perjure himself. The Supreme Court disagreed and held that the defense lawyer’s duty “is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth.” As a result, “counsel is precluded from taking steps or in any way assist- ing the client in presenting false evidence or otherwise violating the law.”27 The proper role of a defense attorney is to represent a defendant in an honest way that seeks the truth in the case. The Code of Professional Responsibility prohibits false statements of fact or law in court; there is much “fiction weaving that customarily passes for argument to a jury.”28 As we have already seen in the case of prosecutors, there may also be a gap between the principles and the actual practice of criminal defense. It can be seen that several of Aristotle’s moral virtues (i.e., justice, truthfulness, temperance, prudence, pride, ambition) are sometimes twisted and misapplied in an effort to pursue personal success over the public good. Objective review of these decisions by the participants themselves, and by outside bodies, can point to these ethical errors and serve as warnings to others.

DECIDING CASES WITHOUT TRIAL

Prosecutors have few limits on how they carry out their role. Consider the example of a Manhattan district attorney in New York City who established a narcotics eviction program. In response to complaints of tenants in poor neighborhoods, the district attorney asked landlords to begin eviction proceedings against tenants who were using drugs or allowing others to use their apartments to sell drugs. If the landlord did not act, the district attorney initiated eviction proceedings under New York’s real estate law, which prohibits the use of any premises for the conduct of illegal activity. Police searches of the premises produced the evidence that supported allegations of illegal use. In one case, a 68-year-old woman was living with two daughters who were selling drugs. The judge allowed the mother to remain in the apartment but barred the daughters from returning there. In 6 years the program removed more than 2,000 drug users and dealers from both residential and commercial buildings.29 This case illustrates the broad powers of prosecutors in both selecting prosecution targets and the nature of the prosecution itself.

ETHICS CHECKUP Justice versus Mercy

A scientist was sentenced to 5 years in prison for conspiracy to sell trade secrets worth $8 million from two pharmaceutical companies.24 The scientist also had cancer and was expected to live only about 6 months longer. He told the judge, “I don’t

want to die in prison.” But the judge said he had “no choice” and sentenced the scientist to the prison term.

On what principles(s) would you make a decision in this case, and what would your sentence be?

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The prosecutor’s discretion is considerable in the manner in which the law can be enforced and adjudicated.30 Prosecutors can set priorities, concentrate on certain types of cases, and avoid other cases entirely. In the case of an armed robbery, for example, police turn over the case to the prosecutor, who decides (1) whether the case will be prosecuted and (2) what charges will be pressed. In the case of armed robbery, for example, assault, larceny, and weapons charges could be filed in addition to the robbery charge (because they are lesser included offenses). After charges have been filed, the prosecutor can decide not to press the charges any further or to reduce the charge in exchange for a guilty plea. After a defendant has pleaded guilty or been convicted in court, the prose- cutor usually recommends a particular sentence to the judge. Thus, the prosecutor has considerable discretion at virtually all important decision points in the criminal justice process: determining whether the police decision to arrest was appropriate, determining the charge, recommending bail, playing a role in whether a defendant goes to trial, and influencing the judge’s sentencing decision.

The scope of a prosecutor’s discretion continues to expand as the adoption of mandatory minimum sentence laws and truth-in-sentencing laws has reduced the judge’s flexibility in sentencing choices. This shifting of sentencing authority away from judges to the prosecutors (in deciding on the charge to be prosecuted) has been criticized for placing too much power in the hands of one person.31 Clearly, prosecutors have opportunities to misuse their discretionary powers because of the tremendous scope of their authority.32 They have garnered the most criticism in the process of plea bargaining.

Plea bargaining occurs when a prosecutor agrees to press a less serious charge, drop some charges, or recommend a less severe sentence if the defendant agrees to plead guilty. Some prosecutors claim that plea bargaining is a necessary evil that enables them to handle large caseloads. Others claim that it is merely an administrative convenience. In either case, plea bargaining is the method of settlement for approximately 90 percent of all criminal cases.33

Defense attorneys provide legal protection to defendants by examining the evidence used to establish probable cause and questioning whether the evidence proves guilt beyond reasonable doubt. This role sometimes brings the defense counsel into conflict with police and prosecutors and with victims and witnesses who believe they are being “attacked” by the defense. An effective defense attorney, however, skillfully examines the reliability and validity of the evidence produced by the police, prosecutors, victims, and witnesses; the attorney should not attack anyone as an individual. Strong advocacy of the legal rights of a defendant can become blurred with the desire to win at all costs. But the role of a defense attorney is crucial because it increases certainty about outcomes in the adjudication process. Without high levels of certainty in findings of guilt or innocence, the public loses faith in the justice system and in the government it represents.

A plea bargain often results in a reduced sentence, and the prosecution will often recommend a longer sentence on the same charge after trial. Is it fair, just, or ethical to impose harsher penalties on someone found guilty after trial than on someone who agrees to plead guilty for a reduced sentence? Clearly, a trial is designed for a full airing of the facts, providing the opportunity for cross- examination of witnesses to assess the strength of the evidence offered. Plea bargaining replaces a trial with a guilty plea, which is a less reliable process.34 In ethical terms, a sentence is a statement of the moral “worth” of the crime. Formalism sees the purpose of sentencing as retributive, so there is no justification for changing punishment based on whether it is a plea or trial. Similarly, virtue ethics would have trouble justifying different punishments based solely on the method of adjudication. Plea bargaining is justified entirely on utilitarian grounds: More good results from the plea bargain (an immediate and certain conviction and sentence) than harm (disproportionate sentences and facts not evaluated by a neutral party at trial). Do you believe plea bargaining is morally permissible on utilitarian grounds?

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JUDICIAL DECISIONS

A judge in New Jersey ruled in 2004 that criminals may have their DNA samples destroyed after they complete their prison sentences. The judge ruled that “Once a felon has paid his or her debt to society and has fully resumed civilian life, the state’s right to maintain that person’s DNA withers.”35 This decision caused tremendous controversy because it apparently opened a large hole in an earlier law that required everyone convicted of a crime to submit a DNA sample. As the attorney general stated in his intention to appeal the judge’s decision, the whole purpose of maintaining a DNA database is “to determine if a career criminal has done it again.”36

This DNA case in New Jersey represents one of two important kinds of judicial decisions that judges are required to make: ruling on evidence and sentencing choices. These judgments are crucial because they involve a person’s liberty, something that virtue ethics recognizes as a real good (i.e., an end to be desired in itself). The judge’s argument in the DNA case is an interesting one, implying that if DNA is kept forever, isn’t it the equivalent of holding someone under a lifetime term of providing DNA as evidence, when the sentence has already been served and debt to society been repaid? However, the attorney general makes a good point in noting that the purpose of the DNA database is to do just that—to determine DNA matches for unsolved crimes. The issue of balancing two competing social goods forms the utilitarian argument: Should a sentence end completely after the term is served, or should the DNA of an offender be stored forever to help solve future crimes? Both can be seen as desirable social goods with consequences that are not always easy to foresee. From the perspective of formalism, which of these is a good universal rule, and does either violate the practical imperative? Finally, virtue ethics asks whether the real good in sentencing (civil peace) is enhanced in accord with the moral virtue of justice (giving someone no more or less than they are due).

The answer to the utilitarian question depends on how you judge the two questions of social good in terms of the total happiness they might produce. Formalism would clearly reject keeping the DNA samples because the policy uses persons (via their DNA) as a means to another end. Virtue ethics would question the extent to which holding the DNA sample forever contributes to civil peace and whether holding a burglar’s or embezzler’s DNA in perpetuity, after he or she has served the sentence, is consistent with justice. Virtue ethics might find DNA databases for serious violent or repeat offenders more ethically justifiable than for less serious offenders. This ethical analysis illustrates the difficulties of judicial decision making because of the different ways that evidence can be considered and sentences justified.

Sentencing of offenders is assessed differently using different ethical perspectives. These are summarized in Table 7.2.

Utilitarianism looks toward the future in assessing the impact of alternate sentences on the future conduct of the offender and also within general society (i.e., potential consequences and deterrence). Formalism looks to the past, seeing that punishment can be based only in proportion to the seriousness of past conduct (retribution). Attempting to anticipate the impact of the sentence on the offender in the future, or on others in the future, cannot be known, and it unjustly uses the current offender as a means to an end. Virtue ethics looks at the present, focusing less on the act committed and more on the character of the person who committed it and how a sentence would work to achieve real goods in accord with the moral virtues. The differences between the major ethical perspectives are highlighted in the case of sentencing, and it illustrates how different ethical assumptions result in divergent sentencing philosophies. Sentencing is discussed in more detail in Chapter 8.

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TABLE 7.2 Ethical Underpinnings of Sentencing

Focus of Sentence Direction of Vision

Primary Sentencing Philosophy

Formalism On the act committed

Past: punishment based on seriousness of past conduct

Retribution

Utilitarianism On the act committed

Future: look for best way to prevent new crime

Deterrence

Virtue ethics On the character of the person

Present: achieve civil peace via moral virtues

Rehabilitation

ETHICS IN BOOKS

Ethics is everywhere, even in the books we read, which sometimes are written without ethics specifically in mind. Here is a summary of a book that looks at actions that affect others, followed by questions that ask you to reflect on the ethical connections.

Me to We: Finding Meaning in a Material World

Craig Kielburger and Marc Kielburger (Fireside, 2006)

Craig and Marc Kielburger are brothers and founders of the groups Free the Children and Leaders Today. Their book describes how they became involved with helping others on a large scale. They weave in many personal stories of both famous and unknown people who have performed acts of giving toward others and their motivations for doing so. The book attempts to show how a motivated individual of modest means can make (and have made) a difference in this world.

Free the Children was founded in 1995 and is the largest existing network of children help- ing children though education. Thus far, it has organized more than a million young people in education programs in 45 countries. It has also built more than 450 schools in the developing world. Leaders Today was founded in 1999 and provides leadership programs for 350,000 young people each year through community groups, schools, and international training opportunities.

The authors talk of the search for meaning and how it is often elusive: “many of us fall into a trap and work long hours because of a sense of responsibility to others, not being able to say no at work, or trying to provide ‘only the best’ for our family. We make these choices with good intentions, but in the end they are not the best for our family, or ourselves. We get sucked into a way of life that does not fulfill us.” In traveling around the world with volunteers doing work in developing countries, the authors found that “many of the people with whom we worked had very little in the way of material possessions yet expressed a sense of happiness more powerful than anything we had experienced . . . empathy for others, a willingness to feel for the less fortunate and reach out to help. Happiness and joy in small things. Strength in community.”

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The “Me to We” perspective described by the authors looks for individuals to assess objectively their own situation: “in our current culture, we constantly receive messages that success is about the things we have,” material goods, a competitive outlook, a preoccupation with the self or “Me.” On the other hand, the “We” perspective focuses on gratitude for what you have, empathy for others, redefining happiness by aligning your goals with your values, and forging a stronger connection to others in the local and global community.

The book is filled with practical suggestions for actively living a life with meaning by focusing on “we” rather than on “me.” Quoting Eleanor Roosevelt, they conclude,

“One’s philosophy is not best expressed in words. It is expressed in the choices that we make, and those choices are ultimately our responsibility.”

QUESTIONS

1. If a life of meaning is characterized by many little-noticed deeds, rather than a few immortal deeds, how can these small deeds make a difference in huge social problems such as educational opportunity, poverty, and injustice?

2. What would the major ethical perspectives (of Aristotle, Kant, and Mill) say about the desirability of performing small, unseen ethical acts? Are ethics more meaningful when practiced among the less fortunate?

ETHICS IN THE MOVIES

Movies seek to entertain and inform the audience about a story, incident, or person. Many good movies also hit upon important ethical themes in making significant decisions that affect the lives of others. Read the movie summary here (and watch the movie if you haven’t already), and answer the questions to make the ethical connections.

A Civil Action

Steven Zaillian, Director (1999)

Woburn, Massachusetts, is a small industrial town 12 miles north of Boston. A resident, Anne Anderson (Kathleen Quinlan), had been suspicious about the tap water in Woburn and what seemed like a large number of cases of serious illness, including twelve cases of leukemia in a small town. Based on the book by Jonathan Harr, A Civil Action recounts an actual case against Beatrice Foods and W. R. Grace, which owned a tannery that cured animal hides by pouring chemicals over the leather. The legal question was whether the chemicals were permitted to spill into the surrounding ground and water supply, contaminating the drinking water, causing illness in the town residents.

The attorney who took the case is Jan Schlictmann (John Travolta), who was a stereotypical “in-it-for-the-money” kind of civil attorney. But over the course of this case, he identified with the very sick victims in Woburn, and he looked for justice rather than profit.

As a civil case, the burden of proof is lower than in a criminal case, but it is still very difficult to prove the link among the chemicals and the existence and responsibility for seepage into the water, to the contact with victims and their subsequent illnesses. Numerous experts and conflicting testimony characterized the case, and the corporations spared no expense in attempting to prove their nonresponsibility.

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Schlictmann refused a settlement offer from the corporations for a total of $24 million, believing he could obtain a fairer compensation at trial. The trial jury ultimately awarded $8 million, which was largely earmarked for the cleanup of the chemicals. The case bankrupted Schlictmann’s law firm due to the very high expenses it incurred for a long-term case, paid experts, and legal assistance, and its failure to achieve a settlement large enough to cover its costs.

QUESTIONS

1. Evaluate the moral permissibility of Schlictmann’s refusing the $24 million settlement offer in the hopes of a better outcome at trial.

2. If you were an attorney representing the victims in this pollution case, how would you determine what a “just” outcome should be?

Discussion Question

Do you believe that a judge’s sentencing decisions should be focused on the past, present, or future?

Critical Thinking Exercises

All ethical decisions affect others (by definition) and, as Aristotle points out, ethical decision making is achieved consistently only through practice. Given the outline of virtue ethics provided by Aristotle (i.e., seeking the real goods via the moral virtues), evaluate the moral permissi- bility of the conduct in question in each scenario.

Important note on method: Critical thinking requires the ability to evaluate viewpoints, facts, and behaviors objectively to assess information or methods of argumentation to estab- lish the true worth or merit of an act or course of conduct. Please evaluate these scenarios, first analyzing pros and cons of alternate views, before you come to a conclusion. Do not draw a conclusion first, and then try to find facts to support it—this frequently leads to narrow (and incorrect) thinking.

To properly evaluate the moral permissibility of a course of action using critical thinking skills

1. Begin with an open mind (no preconceptions!), 2. Isolate and evaluate the relevant facts on both sides, 3. Identify the precise moral question to be answered, and 4. Apply ethical principles to the moral question based on

an objective evaluation of the facts, only then drawing a conclusion.

7.1 Butt Charge

The state of Maine proposed a new law requiring every filter-tipped cigarette sold there to carry a nickel surcharge.37

The 5 cents would be refunded when the butt was returned, in the same way that cans and bottles carry deposits in some

states. Butts would be returned to the same recycling loca- tions that handle cans and bottles.

According to the proposal, cigarette manufacturers would place a mark on the filter of each cigarette sold in Maine, indicating the 5-cent deposit notice. If passed, this law would raise the price of a pack of cigarette by $1.

The law arose from problems caused by an earlier ban of cigarette smoking in most public places, forcing smokers outside and leading to the problem of used butts on the ground around the entrances to stores, public buildings, and parking lots. The law also seeks to provide a new source of revenue for the state while avoiding a general tax increase. If half of all butts sold were returned for a deposit, the state would gain about $50 million in unclaimed deposits.

Cigarette vendors and manufacturers did not support the proposed new law, arguing that it would push smokers to buy their cigarettes in other states. There was also the question of health concerns in handling used butts and the practical matter of counting the returned used cigarette butts.

• You are a smoker living in Maine. Is it morally permis- sible to enact such a law?

• How does your argument change if you are a nonsmoker?

7.2 Attorney Confidentiality of a Client’s Criminal Plans?

In a Washington case, a defense attorney was told, both by a psychiatrist and an attorney for the client’s mother, that his client’s mental illness made him a threat to others. The

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attorney did not disclose this information at the bail hearing for his client. Eight days after his release, the client assault- ed his mother and attempted suicide.

The appellate court held that the attorney was not legally obligated to disclose this information because the client made no threats in the presence of his attorney that he was going to harm someone. In addition, the mother was aware of the risk she faced.38

In forty states, an attorney is permitted to keep silent even after learning that a client plans to kill someone.39 In these states, disclosure of a client’s intention to commit a serious crime is entirely at the discretion of the attorney.

How does an attorney’s dual responsibility to his or her client and as an officer of the court rank the interests of the client versus that of society? Is there a moral obligation involved to either the client or society?

The general rule of confidentiality in the attorney–client relationship states that “a lawyer may reveal such confi- dences or secrets to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime.” Most states do not distinguish serious from nonserious crimes, and it is easy for an attorney to justify nondisclosure on grounds that disclosure is “unethical.”40 This conclusion is possible by claiming that the attorney is an advocate for the client, so loyalty lies with the client. It might be argued that it is sometimes difficult to distinguish vague criminal threats from actual criminal plans. This can also be seen as an exten- sion of the legal rule that strangers have no obligation to aid someone in distress.

There are practical reasons for confidentiality, the most important of which is that clients might withhold important facts if they were not certain that their attorneys won’t disclose them to third parties. New Jersey is one of the ten states that require attorneys to disclose a client’s stated intention to com- mit a homicide or other serious violent crime. A survey there found that about 9 percent of 786 attorneys responding had encountered at least one situation in which they believed their clients were going to commit such serious crimes, but only half of the attorneys disclosed that information to others.41

Therefore, it appears that even the requirement of disclosure of planned crimes does not guarantee the attorney will do so. However, when a client discloses to his or her attorney the intention to commit a crime, can the attorney be viewed as an accomplice once the crime is committed?

• Do attorneys have a moral obligation, beyond that stated in the law, to protect others from what they believe to be a planned crime?

7.3 A Judge’s Relations

A judge in Chicago was charged with violating ethics rules for having sex in his chambers with a court reporter.

Apparently, a physical relationship took place in the office, and the judge and court reporter had sex on multiple occa- sions during workdays. The judge argued in his defense that there is no rule specifying that consensual relations with another adult in the privacy of his chambers are prohibited.

It was charged that the sexual relationship with the court reporter “created an atmosphere of impropriety and is not in keeping with the dignity of a judicial officer,” although no state rule has been found that addresses or prohibits consen- sual sex by a judge in his office.42

The judge was also charged with forcing kisses on two ADAs, repeatedly asking female prosecutors for dates and commenting on their appearances. But these charges were separate from the judge’s challenge of his having consensual sex with a court reporter in his chambers.

• Assess the moral permissibility of the judge’s conduct using the three major ethical perspectives.

7.4 The Duke Lacrosse Case

The attorney general of North Carolina dismissed all charges against three Duke University lacrosse players who had been charged a year earlier with raping a stripper at a party attended by team members. The attorney general pub- licly rebuked Michael B. Nifong, the district attorney of Durham County, as a “rogue prosecutor” and said the cases were “the result of a tragic rush to accuse and a failure to verify serious allegations.”

The case had received tremendous national publicity and, early on, an assumption was made regarding the culpa- bility of the lacrosse players, which was fueled by the prose- cutor who gave approximately seventy media interviews. When the case was showing signs of weakness due to failure of any DNA match and problems in corroborating the victim’s version of events, the charges were not dropped until defense attorneys publicized the lack of evidence and the attorney general took over the case. The case was also punctuated by Nifong’s reelection as district attorney during these events.

Nifong was charged with an ethics violation for failing in his legal obligation to reveal favorable, exculpatory evi- dence to the defense. The North Carolina State Bar accused Nifong of illegally withholding DNA evidence favorable to the defendants, lying to a bar committee examining his con- duct, and making false statements about evidence and systematically abusing “prosecutorial discretion.”43 Nifong was disbarred in 2007.

• Assume that Nifong had a strong belief that the defen- dants were guilty. How does this affect the moral permissibility of his conduct?

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102 Chapter 7 • Courts

Key Concepts

Theory of justice 91 Greatest equal liberty principle 91 James Madison 91 Model Rules of Professional

Conduct 92

Mob lawyer 93 Proper role of a defense

attorney 95 Prosecutor’s discretion 96 Plea bargaining 96

Two important kinds of judicial decisions 97

Ethical underpinnings of sentencing 98

Notes

1. Susan Schmidt and Carol Leonnig, “Reporter Held in Contempt in CIA Leak Case,” The Washington Post (August 10, 2004), p. A1.

2. John Rawls, A Theory of Justice (New York, NY: Clarendon, 1972).

3. James Madison, The Federalist Papers (#51) (New York, NY: Buccaneer Books, 1990), p. 20.

4. “Crime Poll: Topics and Trends,” Gallup News Service (2003).

5. American Bar Association, Model Rules of Professional Conduct, 52 U.S.L.W. 1–27 (August 16, 1983).

6. Miller v. Pate, 386 U.S. 1 (1967). The defendant’s conviction was upheld on appeal but overturned by the U.S. Supreme Court, holding that the prosecutor deliberately misrepresented the truth.

7. United States v. Perry, 643 F.2d 38 2nd Cir. (1981). 8. Bennett L. Gershman, “Why Prosecutors Misbehave,”

Criminal Law Bulletin, vol. 22 (March/April 1986), pp. 131–143; Jennifer Emily and Steve McGonigle,

“Dallas County District Attorney Wants Unethical Prosecutors Punished,” The Dallas Morning News (May 4, 2008).

7.5 Criminals Testifying for the Prosecution

The federal government is relying on some serious criminals—murderers, drug dealers, and gang members—to make its case in a double death penalty trial in Baltimore’s U.S. District Court. In exchange for leniency, at least six “cooperating witnesses,” most of whom haven’t yet been sentenced for their crimes, will testify against James Dinkins, and two co-defendants.

That’s raised concerns among defense attorneys, who say the cooperators have a strong motivation to lie. They point to a recent study out of the University of Arkansas that suggests one in two people will perjure themselves if given an incentive to do so. “Their testimony is essentially bought and paid for,” said John Wesley Hall Jr., president of the National Association of Criminal Defense Lawyers.

But prosecutors say the deals are necessary evils and the best way to get information about covert and illegal organiza- tions. They work very hard with law enforcement agencies to “flip” people for just that reason. “Often the people who are in the best position to be witnesses in a case are the people who themselves have been involved in the criminal activity,” said Maryland U.S. Attorney Rod J. Rosenstein.

If convicted, Dinkins, who is accused of murdering a federal witness, could be put to death. The U.S. attorney’s

office has made deals with other convicted criminals in exchange for testimony, ensuring that some of offenders will be released from prison much earlier in exchange for their testimony. As a result, there’s a lot riding on the testimony of people with “reprehensibly low” credibility, according to one of the defense attorneys. “There’s no DNA, no forensics, no bullet, no fiber, nothing to directly link the defendant to these murders, not a fingerprint,” lawyer Jonathan Van Hoven told the jury during opening statements. There’s “nothing but the testimony of people you are not going to be able to trust or believe.”

One cooperating criminal pleaded guilty to second-degree attempted murder in state court with a recommendation that he serve 30 years, 15 of them suspended. He wasn’t charged with any of the other crimes he confessed to, and he won’t be—if he fully cooperates in this case. That gives him a strong incentive to say whatever the government wants to hear, defense attorneys said. Such witnesses are necessary, acknowledged defense attorney Hall. “The government needs them,” he said. “Sometimes the defense needs them too, but we have nothing to offer. If we were to offer what the government gave, we’d be prosecuted for bribery.”44

• Evaluate the moral permissibility of the prosecutor’s decision to use convicted criminals, whose sentences are not yet final, to testify against another suspect.

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9. People v. Shields, 46 N.Y. 2d. 764 (1977). 10. Gershman, p. 140; see also Bruce A. Green and Fred

C. Zacharias, “Regulating Federal Prosecutors’ Ethics,” Vanderbilt Law Review, vol. 55 (March 2002), pp. 381–478.

11. Imbler v. Pachtman, 424 U.S. 409 (1976). 12. Benjamin Weiser, “Doubting a Case, a Prosecutor

Helped the Defense,” The New York Times (June 23, 2008).

13. President’s Commission on Organized Crime, Organized Crime Today: The Impact (Washington, DC: U.S. Government Printing Office, 1987), pp. 228–229.

14. William Glaberson, “Effort to Oust Gotti Lawyer Reopens Debate on Tactics,” The New York Times (May 4, 1998), p. B6.

15. Frank Ragano and Selwyn Raab, Mob Lawyer (New York, NY: Simon & Schuster, 1997).

16. Ragano and Raab, Mob Lawyer, p. 362. 17. Ibid. 18. President’s Commission on Organized Crime,

Organized Crime Today: The Impact, p. 253. 19. Katrina A. Abendano, “The Role of Lawyers in the

Fight against Money Laundering: Is a Reporting Requirement Appropriate?” Journal of Legislation, vol. 27 (2001), p. 463.

20. Linda M. Samuel, “Restraining the Global Threat,” in R. Broadhurst, Ed., Transnational Organized Crime Conference: Proceedings (Hong Kong Police Force, 2002).

21. President’s Commission on Organized Crime, Organized Crime Today: The Impact, p. 253.

22. Patricia Hurtado, “Lost Control and Snapped: Defense Cites Stress in Social-Club Killings,” Newsday (May 5, 1998), p. 7.

23. Stephen J. Morse, “The ‘New Syndrome Excuse Syndrome’,” Criminal Justice Ethics, vol. 14 (Winter/Spring 1995), pp. 3–15.

24. “Five-Year Sentence in Secrets Case,” Newark Star-Ledger (July 13, 1991), p. 1.

25. Lisa J. McIntyre, The Public Defender: The Practice of Law in the Shadows of Repute (Chicago, IL: University of Chicago Press, 1987), p. 145.

26. American Bar Association, Standards for Criminal Justice, Number 4–1.1.

27. Nix v. Whiteside, 475 U.S. 157 (1986). 28. H. Richard Uviller, Virtual Justice: The Flawed

Prosecution of Crime in America (New Haven, CT: Yale University Press, 1996), pp. 153, 155.

29. Peter Finn, The Manhattan District Attorney’s Narcotics Eviction Program (Washington, DC: National Institute of Justice, 1995).

30. Richard Bloom, “Prosecutorial Discretion,” Georgetown Law Journal, vol. 87 (1999), p. 103.

31. Steven R. Donziger, ed. The Real War on Crime: Report of the National Criminal Justice Commission (New York, NY: HarperPerennial, 1996), pp. 183–184.

32. Peter J. Henning, “Prosecutorial Misconduct and Constitutional Remedies,” Washington University Law Quarterly, vol. 77 (Fall 1999), p. 201.

33. B. Boland, E. Brady, H. Tyson, and J. Bassler, The Prosecution of Felony Arrests (Washington, DC: Bureau of Justice Statistics, 1983); Gerard Rainville and Brian A. Reaves, Felony Defendants in Large Urban Counties (Washington, DC: Bureau of Justice Statistics, 2003).

34. Kenneth Kipnis, “Criminal Justice and the Negotiated Plea,” in M. Leighton and J. Reiman, Eds., Criminal Justice Ethics (Upper Saddle River, NJ: Prentice Hall, 2001), p. 370.

35. Robert Schwanesberg, “Ruling Deals Blow to DNA Law,” NJ.com (December 23, 2004).

36. Schwanesberg, “Ruling Deals Blow to DNA Law.” 37. Freed Bayles, “In Maine, Five-Cent Butt Charge

Targets Litter,” USA Today (March 5, 2001), p. 5. 38. Hawkins v. King County, 602 P.2d 361 (Was. App.

1979). 39. Brendan W. Williams, “Some Secrets Are Not Worth

Keeping: The Attorney’s Duty of Confidentiality Versus Disclosure of Intended Client Crimes,” Criminal Law Bulletin, vol. 34 (March–April 1998), pp. 97–117.

40. Steven R. Salbu, “Law and Conformity, Ethics and Conflict: The Trouble with Law-Based Conceptions of Ethics,” Indiana Law Journal, vol. 68 (1992), pp. 101–130.

41. Leslie C. Levin, “Testing the Radical Experiment: A Study of Lawyer Response to Clients Who Intend to Harm Others,” Rutgers Law Review, vol. 47 (1994), pp. 81–129.

42. John Flynn Rooney, “Ethics Rules Don’t Apply to Judge’s Case, Panel Told,” Chicago Daily Law Bulletin (September 17, 1998), p. 1.

43. “Lacrosse Case Decision,” The Herald-Sun (Durham, NC) (April 12, 2007), p. A2.

44. Tricia Bishop, “Testifying for the State: Criminals,” The Baltimore Sun (May 28, 2009).

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