Tag Archives: Ethics

Gascon Policies Remain Despite Being Told By His Own Appellate Department They Are Illegal

The Metropolitan News-Enterprise has an excellent article discussing the dramatic changes at the Los Angeles County District Attorney’s Office. The most dramatic revelation is that Gascon ignored warnings that his policies were illegal.

District Attorney George Gascón has been told by his office’s Appellate Division that the appeals courts would find no merit in his contention that a judge is obliged to blot out a strike allegation whenever a prosecutor requests it, and has been warned that his effort to thwart the Three-Strikes Law by ordering that no enhancements be sought based on prior strikes could be subject to a challenge in a taxpayer’s action, internal documents show.

The warnings came almost two weeks ago, and no change has been made. The article details two memos, one on December 9 and 10. They set out the requirement that prosecutors file strikes.

By their plain terms, [two Penal Code provisions—§1170.12(d)(1) and §667(f)(1)] require the prosecution to plead and prove all known strike priors.

The memo cites a Jan. 19, 1996 opinion by then-Acting Presiding Justice Norman Epstein of this district’s Div. Four (later presiding justice, now retired) in People v. Kilborn which holds constitutional the limitations on a district attorney’s charging discretion.

Thus, absent a legislative change or intervening case law, the prosecutor must charge all known strikes, […] The district attorney’s office has no legitimate interest in having a policy directly contrary to law.

Gascon responded by declaring the Three Strikes Law unconstitutional. His appellate department, however, made quick work of that. The December 10 memo discusses the law, and concludes, “the prosecutor’s general belief that the Three Strikes law should not be enforced would probably not provide a valid judicial reason to strike a strike.”

This Advice Was Ignored

Notwithstanding that advice, on December 15, Gascon issued an “amendment” to Special Directive 20-08 containing a script for deputies to read.

Special Directive 20-08.1Download

The script declares that Three Strikes is unconstitutional. The script omits the overwhelming number of cases that are contrary to this position. That led to another memo from the Appellate Department, reminding Gascon that California Rules of Professional Conduct Rule 3.3 “requires attorneys to cite any known, adverse authority.” The script therefore violates ethics rules.

Despite this, Gascon did not change the script. His order to his deputies stands unchanged. This puts them in the unenviable position of choosing between following their boss’s orders or the ethics rules.

LADA Can Be Sued

The memos discuss the consequences of noncompliance with the law. They analyzed several court of appeal cases and conclude, “it is at least plausible that the office would have to defend its policy in a civil case.”

This warning is particularly dire, given the heated criticism LADA has recieved from victim’s rights lawyers. For example, Sam Dordulian has been harshly critical of Gascon’s new policies and is speaking out:

A Most Beautiful Argument for Purity

I’m reading The Warrior Ethos by Steven Pressfield, a short work that seems to be mostly a collection of aphorisms for soldiers. Each brief chapter seems like it could be a starting point for a much more detailed examination of how to be ethical while fighting for a cause. I’m reading it with a group of prosecutors with an eye to how it applies to our work. Pressfield discusses the Israeli Defense Force’s doctrine of “purity of arms,” which he translates as “purity of weapons.” He says the doctrine derives from two verses in the Old Testament. I went looking, and found the two that I think he might be referring to:

9 When the host goeth forth against thine enemies, then keep thee from every wicked thing. 10 If there be among you any man, that is not clean by reason of uncleanness that chanceth him by night, then shall he go abroad out of the camp, he shall not come within the camp: 11 But it shall be, when evening cometh on, he shall wash himself with water: and when the sun is down, he shall come into the camp again. 12 Thou shalt have a place also without the camp, whither thou shalt go forth abroad: 13 And thou shalt have a paddle upon thy weapon; and it shall be, when thou wilt ease thyself abroad, thou shalt dig therewith, and shalt turn back and cover that which cometh from thee: 14 For the Lord thy God walketh in the midst of thy camp, to deliver thee, and to give up thine enemies before thee; therefore shall thy camp be holy: that he see no unclean thing in thee, and turn away from thee.

Deutoronomy 23:9-14

Deutoronomy is sometimes exalted and sometimes quotidian and specific. For example, this chapter starts out with what to do if you are wounded in the testicles, and this quote discusses “nocturnal emissions” in some translations. For exalted language, it’s hard to find a passage better than verse 14. Ellicott’s Commentary for English Readers calls it “[a] most beautiful argument for purity in every sense.”

It is harder to find the second Bible verse that Pressfield is referring to, but I think this may be it:

And ye, in any wise keep yourselves from the accursed thing, lest ye make yourselves accursed, when ye take of the accursed thing, and make the camp of Israel a curse, and trouble it.

Joshua 6:18

If The Warrior Ethos is mostly a collection of aphorisms for soldier, what can the prosecutor do with it? What is purity of arms for the prosecutor? The most obvious interpretation is this: don’t break any rules when you prosecutor rule-breakers. This is a cliche, and like most cliches, it is both obvious and true. But there is deeper truth here that we should dwell on. The same tools that we use against others can be used against us. Many of our ethical lapses are crimes themselves. For example, in California, it is a crime to withhold evidence. This is a recent change to the law. But before it was a crime, it was unethical. It has always been unethical. You may be prosecuted for withholding evidence. Keep yourself from this accursed thing, lest ye make yourself accursed. And if you do, all of us will be shamed by it. You won’t just be incriminating yourself, you are making every prosecutor look bad, cursing our camp and troubling it. Instead, we should follow both the letter of the law and its ethical spirit. Many of us believe that we are the good guys in the room. They point to our higher ethical standards and our responsibility to do justice, rather than win. This only remains true while we remain true to our principles. While we keep our work pure, so that there is no unclean thing there, and God does not turn away from us.

Notes

Pressfield also draws valuable lessons from the Hindu Bhagavad Gita, which help me understand why I’ve been obsessed with a billboard.

Deuteronomy, the source of the first quote above, has criminal law in it. It includes laws concerning the appointment of judges, rules for witnesses, and proscriptions against kidnapping and rape.

Prosecute Yourself

There’s a billboard on the way to work. It’s a recruitment billboard for the Marines. A young man in fatigues with a rifle is wading through water. In the background, other soldiers appear to be running with him. He looks tired. His arms are not in the position of the typically military runner, they are almost listless at his sides. And his expression is less grim determination than hollow stare. Framing him, in big block letters, the sign reads, “Battles Are Won Within.”

The billboard was part of an advertising campaign, created by the same ad agency that came up with “The Few, the Proud, the Marines.” Despite this unsavory origin, the “Battles Won” campaign has some great values. “Battles Won” is designed to drive home the message that mental, moral and emotional strength are as important as physical toughness. The campaign was created around three concepts, fighting self-doubt, fighting the nation’s battles and fighting for what’s right, officials said. They put out a commercial as well:

The billboard fascinated me, less as a recruiting device, but more as an unintentionally profound reflection of life. It has long since been replaced by a “turn to Jesus” billboard. But it returned to my mind as I’ve been reading The Warrior Ethos by Steven Pressfield. In a chapter entitled, “The War Inside Ourselves,” Pressfield discusses the Bhagavad Gita.

In the well known framing story, Krishna instructs Arjuna to kill his adversaries, even though they are his friends and comrades. I’ve always wanted to like the Bhagavad Gita, although it bored me at places, even though it’s very short. In the past, I was drawn to Krishna’s exhortations to work without attachment to results. I was familiar with descriptions of Arjuna’s conflict at this moment. Pressfield had something new for me; something I wasn’t expecting.

The names of these enemy warriors, in Sanskrit, can be read two ways. They can be simply names. Or they can represent inner crimes or personal vices, such as greed, jealousy, selfishness, the capacity to play our friends false or to act without compassion toward those to love us. In other words, our warrior Arjuna is being instructed to slay the enemies inside himself.

Pressfield, The Warrior Ethos, at Ch. 26 [emphasis in the original].

Pressfield devotes two chapters to the Gita, pointing out that the higher struggle for a warrior is to battle his own baser nature, to battle his own vices, to battle the demon within, so to speak. He might as easily have said that this is the role of the veteran, to use the toughness and fighting spirit that he has learned to overcome himself. After all, when you can no longer fight the war, that doesn’t mean you have nothing left to fight, or nothing left to fight for.

There is a lesson for the prosecutor here as well. The tools that we use for justice and truth can be used to make us just and true. Epicurus says, “The knowledge of sin is the beginning of salvation.” (Frag. 522 Usener.) Seneca, after quoting this approvingly, continues.

He who does not know that he has sinned does not desire correction; you must discover yourself in the wrong before you can reform yourself […] Therefore, as far as possible, prove yourself guilty, hunt up charges against yourself; play the part, first of accuser, then of judge, last of intercessor. At times be harsh with yourself.

(Lucius Seneca, Letters From a Stoic (Collins 2020) at p. 48.)

Treat your life as if it were a case. Take a cold, dispassionate look at the facts. What reasonable inferences can you draw? What possible defenses are there. And then make your charging decision. Consider what you have done. What crimes have you committed against your better self? What crimes have you committed against your loved one, against strangers? Are they infractions, misdemeanors, or felonies? And maybe the hardest question: what do you deserve? Or maybe break the question into two questions, as we do during case evaluation. What is the maximum allowed by law? Then, what is the just amount?

Once you have taken a hard look at yourself, apply yourself to correction and rehabilitation. That’s what the system prescribes for the criminal. But we are all guilty of something. So ask yourself what you ask of others, every day. What have I done? What can do to correct it, in myself and in the world? So you will be fighting the battle within, and applying the wisdom of the Bhagavad Gita, and of course, the wisdom of the advertising agency.

Notes

I also enjoyed Pressfield’s references to the Bible, especially the Old Testament concept of “Purity of Arms.”

You Should Go to Jail Then

Robert Mueller doesn’t like defending the guilty.

Mueller, now 73, began his Department of Justice career in 1976 as an assistant US attorney in San Francisco, and during the decades that followed took only two breaks to try out the private sector, each lasting no more than a couple of years.  The stints were so short-lived because of a simple fact, according to Graff: Mueller couldn’t stand defending those he felt were guilty.  “He’ll meet with the client, they’ll explain the problem and he’ll say ‘Well, it sounds like you should go to jail then,'” Graff said. “There is not a lot of gray in Bob Mueller’s worldview.”

I think that this is a legitimate perspective.  People have an obligation not to work for bad causes.  You should not help people lie, cheat, and steal.  This concept even appears in our criminal law.  Accessories are persons who, knowing a crime has been committed, help the criminal get away with the crime.  The assistance to the criminal may be of any type, including emotional or financial assistance as well as physical assistance or concealment.  Obviously, the law provides an exception for a defense lawyer.  After all, when a defense lawyer exonerates an innocent person, we all benefit.  It’s hard to understate the good done by a defense lawyer in that situation.  But what good does a defense lawyer do when they try to exonerate the guilty?  Isn’t she just as immoral as an accessory without a law degree?

What if, through the skill of a lawyer, a guilty man goes free?  That is wrong.  And in that situation, the lawyer shares culpability with his client.  Take it a step further: what if the guilty client who has just been acquitted goes out and reoffends?  Isn’t the lawyer responsible for that as well?  What would the lawyer say to her client’s new victim?

I don’t think it’s necessary about having a moral compass or not having a moral compass. Defending criminal defendants, even ones that you are sure are guilty, is an important part of the system and integral to holding the government accountable.

This has the patina of reasonableness.  After all, who would want an unaccountable government?  But what exactly does that mean?  Does the government need to be “held accountable” when they have charged your guilty client and are seeking to convict him?  It’s one thing if the government is asking for an unfair punishment.  In that situation there’s nothing wrong with negotiating for a better one.  Sometimes prosecutors overcharge defendants.  There’s nothing wrong with fighting to narrow the charges.  But I’ve never been able to shake the feeling that trying to completely exonerate a guilty client is immoral.  And it seems like Robert Mueller agrees with me.

The Anatomy of Violence

I read The Anatomy of Violence by Adrian Raine, all 373 pages, for the trivia.  The book was interesting enough by itself, but the most engaging part of the book, and the reason I kept reading, was the little criminological factoids sprinkled throughout.  You are more likely to be killed on they day you are born than any other day.  Stepfathers are much more likely to murder their children than biological fathers.  Men are better able to detect infidelity than women.  Men who murder are more likely to be single.  You are more likely to be killed in your home by someone you know than by a stranger.  On and on.  The longer your ring finger relative to your index finger, the more testosterone in your body.  Yes, the crime-stopping effects of Omega-3 fish oil are interesting, but just not enough without the trivia.

I picked up an electronic sample of the first few chapters to read while waiting around in court.  I followed Raines’ argument (a recitation of Dawkins’ selfish gene theory) but I was most interested the little facts and statistics he flavored it with.  I kept telling other lawyers about them.  By the time I was carpooling home, I had noted ten of the best and was going through them.

Raines clearly set out to write a book that was accessible to general readers.  His book is peppered with examples of killers, serial or otherwise.  His prose is lofty and often hyperbolic, which is totally necessary when you are talking about the left ventral prefontal cortex.  Otherwise your eyes would dry up.  And Raine even talks directly to the reader at times, speculating about why they bought the book and whether their purchase was predetermined by their biology.

Raine’s work on early childhood development is another area where the book really shines.  He identifies things that can happen in the womb and in the first years of a child’s life that will increase the chances of criminality later on down the line.  Head injury has to be at the top of the list.  Maternal rejection, or just bad parenting during the first months, is another huge factor.  Birth complications like hypoxia, preeclampsia, and maternal infection can all lead to neurological problems and then on to violence.  Shaking your baby, failing to feed your baby, the list goes on and on.

It would be pretty uncontroversial to say that we should focus public policy on avoiding these problems.  Parenting classes, better obstetrics, and safer playgrounds are all areas of improvement that would probably get wide agreement.  But what about the implications or Raines’ work on the biological factors predisposing someone towards crime?

If the government finds out that someone is biologically predisposed to crime, should it label them and treat them differently?  Maybe we should surveil them constantly.  Maybe we should forbid them from having children, or force them to get a license.  Maybe we should lock them up for our protection?  Raines, originally from the UK, may not know that we have “Equal Justice Under Law” written above our Supreme Court.  He does seem to know that many of these ideas are an anathema to the politically liberal.  So he flirts with these ideas rather than marrying them.  Even though his whole book is built around the idea that there are biological markers for violence, Raine is not willing to recommend that we do anything about it.  Reading this book is kind of like reading about boat design by an author who doesn’t recommend sailing.

At the end of his book, Raine recommend that we treat violence as a public health problem.  In my view, this approach ignores the moral aspects of crime, which would have a real, measurable effect on the crime rates.  Crimes are crimes, not symptoms.  Crimes are voluntary acts, not involuntary results of an unwanted disorder.  We may learn a lot from Raines’ book, and take many of his suggestions, without medicalising crime.

Annotations

The Nazis were in favor of sterilization to prevent “unsound progeny”.

This farrago of pseudoscience written by a criminologist is everything that’s wrong with “evolutionary” theories about human behavior wrapped up and deposited between two covers. Jam-packed with dubious speculation based on misperceptions of how evolution works, “Anatomy of Violence” is all the more alarming because Raine seems to think the ideas in it ought to have a role in public policy. Not just a bad book, but a potentially dangerous one.

-Laura Miller in Salon.

 

Perils of Plea Bargaining

“Justice and liberty are not the subjects of bargaining and barter.”  (Shelton v. United States (5th Cir. 1957) 246 F.2d 571, 579.)  This noble statement is simply not true: 90% of all convictions in the United States are obtained by plea bargain, rather than by trial.  The system of plea bargaining, therefore, has almost overwhelmed the system of trial by jury, and we must be constantly aware of how it may go wrong.  Specifically, we should guard against conflicts of interest on the part of the lawyers that my produce unjust outcomes for victims and defendants.

Lawyers’ self-interest can skew the outcomes of plea bargaining.  On the defense side, a public defender may be, and in some places always is, overworked.  A new case may come in for arraignment that would contribute significantly to the attorney’s workload.  In that situation, the defense attorney may recommend a quick plea bargain to dispose of the case.  This might not even be a bad thing.  When the public defender is dumping this case in order to focus on her more significant cases, the defendant in those significant cases may benefit.  In this way, the public defender is exercising something like prosecutorial discretion.  It is not controversial, after all, for a prosecutor to refuse to file a relatively unimportant case because her energies are already spent on other more important cases.  Defense lawyers do not have this formal power, but if they are willing to accept bad plea deals, they have this power in practice.  I have even seen this in action, especially in misdemeanor courts.  In this situation, the defendant loses his right to aggressive representation on his behalf.

Prosecutors, in turn, may be motivated to make unnecessarily lenient plea offers.  Even the best criminal code is written in general language, and there are often problems in application to individual cases.  As Albert W. Alschuler has said, “individual prosecutors may be influenced […] by a desire to smooth out the irrationalities of the criminal code.”  (Alschuler, The Prosecutor’s Role in Plea Bargaining (1968) 36 U. Chi. L.Rev. 50, 71-79.)  Prosecutors may be faced with weak cases that they still believe in.  For example, if a prosecutor believes she can prove a case beyond a reasonable doubt but feels that it is very unlikely, she may plea bargain to ensure a conviction, regardless of whether the punishment is too lenient.  Better something than nothing, after all.  Prosecutors may plea bargain to avoid harsh minimum sentences.  They may also plea bargain to protect victims who do not wish to testify.  None of these motivations would constitute a conflict of interest.

But there are other, less reputable reasons why prosecutors may plea bargain where conflict of interest rears its ugly head.  Prosecutors are often evaluated on their performance by looking at their trial statistics.  More guilty verdicts are better, obviously, than hung juries or acquittals.  Ambitious prosecutors, and we are all ambitious, pay attention to this record more than any other measure of performance.  When a difficult case comes along, this type of evaluation puts prosecutors in a tough position.  The prosecutor may feel that the defendant deserves a particular sentence.  Let’s say 20 years, for example.  But she knows that the case is difficult to prove, and that juries are unpredictable.  If the defendant is willing to take 10 years, a prosecutor may be tempted to agree to this to preserve her trial record.  After all, if she takes the case to trial because she doesn’t feel that 10 years is a punishment that fits the crime, she risks a loss on her record.  A loss that would be held against her when her performance is evaluated.  How much more important is justice (that the punishment fit the crime) than the prosecutor’s career?  It’s a question that shouldn’t have to be asked, but that I’m sure is asked all the time.

The problem of conflict of interest during plea bargaining is particularly acute with private defense attorneys.  It may even be in a private defense attorney’s self-interest to recommend rejection of a favorable plea agreement.  For example, if a private defense attorney bills by the hour, his economic self-interest would be to spend as many hours on the case as possible.  A favorable offer at the beginning of the case would nip that opportunity in the bud.  A private defense lawyer may run into the same problem if they are charging by the motion, if they are able to charge more for a writ, for a habeas corpus proceeding, or to handle an appeal.  Private lawyers may even want the practice of conducting a trial, to improve their trial skills, regardless of the potential consequences for their clients.  On the other hand, many private attorneys are paid a flat fee to take a criminal case, regardless of whether they dispose of it quickly or take it to trial.  It’s much easier to take the fee and take the plea than to prepare a complex trial.

Plea bargaining will continue until more lawyers are hired or less cases are filed.  Many people feel that the current situation cries out for reform.  When someone’s freedom is at state, it pays to do things right.

Go Ahead And Threaten Me

Defense lawyers are often extremely interested in whether the prosecution has all their witnesses.  They will often base their legal strategy around whether they believe the witnesses will cooperate.  For example, in a domestic violence prosecution, the two sides may confer at the beginning of the hearing.  “What do you want to do?” the prosecutor will ask.  “Do you have your witnesses?” the defense counsel will respond.  If the witnesses are there, the defense may plea, but if they are not there, the defense has less of an incentive to come to a negotiated disposition.  In fact, the defense may be hoping and praying that the People’s witnesses are uncooperative, as it may represent their only realistic hope of a dismissal.

I have wondered how prosecutors should handle this situation.  The defense’s gamesmanship bothers me, and seems unjust.  If the defendant is guilty and looking to admit his guilt, he should accept the punishment he thinks is fair.  This fair punishment should not depend on the strength of the prosecution’s case.  Should prosecutors tell defense counsel what their witness status is?  Should they refuse to answer questions about their witnesses?  Is it ethical to bluff?

The answer to the last question, at least, seems clear.  The Business and Professions Code says that “[a]n attorney must employ, for the purpose of maintaining the causes confided to the attorney, only those means that are consistent with truth.  (Bus. & Prof. Code § 6068(d).  For example, an attorney cannot continue to represent someone who intends to commit perjury.  (See Nix v. Whiteside (1986) 475 U.S. 157.)  Although this section of the Code doesn’t seem to be intended to apply to plea bargaining, it does point to the larger issue: bluffing doesn’t seem to be “consistent with truth.”  Criminal prosecutions are not poker games, at least not for prosecutors.  The defense bar, on the other hand, seems to have no problem with acting like the courtroom is the wild west.  The unfairness of the double standard applied to each side is glaring, and manifests itself in all sorts of ways.

If a prosecutor does not read the Business and Professions Code the way I do, and does bluff about his witness status, what may happen?  Specifically, can a defense lawyer threaten to report her to the bar?  The California Rules of Professional Conduct address threats in civil disputes:

(A) A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

(B) As used in paragraph (A) of this rule, the term “administrative charges” means the filing or lodging of a complaint with a federal, state, or local governmental entity which may order or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature but does not include filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action.

(C) As used in paragraph (A) of this rule, the term “civil dispute” means a controversy or potential controversy over the rights and duties of two or more parties under civil law, whether or not an action has been commenced, and includes an administrative proceeding of a quasi-civil nature pending before a federal, state, or local governmental entity.

(Cal. R. Prof. Conduct 5-100 [Threatening Criminal, Administrative, or Disciplinary Charges].)

This rule, on its face, seems to apply only to civil disputes and not to criminal prosecutions.  The phrase, “civil action” is specifically defined in the rule.  So it seems like a criminal defense lawyer can threaten to report the bluffing prosecutor to the state bar.  And it seems like prosecutors can threaten defense counsel with criminal, administrative, or disciplinary charges.

Why are threats allowed in criminal disputes but not in civil disputes?  I took a very cursory look at this issue and I can’t find an easy answer.  It would seem to me that the rule against threats in civil court is intended to keep both sides acting in a professional way.  Why don’t we want the same professionalism on the criminal side?  Threatening to have someone disbarred never helps the justice system arrive at the truth: it only leads to tension and acrimony.  I think Rule 5-100 should be expanded to include criminal actions.