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:
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Attorney use of heroin and cocaine during trial
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Attorney letting defendant wear the same clothes described by victim
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Attorney admitting that he didn't know the applicable law or the facts of
the case
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Attorney not being able to cite a single death penalty case holding
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Attorney drinking heavily each day of the trial
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Bribing Witnesses
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Allowing the client to intimidate a witness
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Instructing a client to destroy physical evidence
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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
Clarence
Brandley
Arrest and
Conviction
(1981)
• One white, one black janitor found her body.
• Police said “One of you two is going to hang
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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.
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
Judge
Carole
Squire,
Columbus,
Ohio
(2005)
• 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.
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:
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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
Michael
Arena
Texas
(1999)
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.
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 Perceptions
1.
“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.
List of
Currently
Disciplined
Practitioners
(as of 8/2012)
• 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.
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.