Ethical Misconduct in the Courts (Chapter 10)
The first section acknowledges that the public’s opinion of lawyers is generally very low. Lawyers are seen as motivated by money and willing to break rules to get the outcome they desire. The ABA oversees the profession and has established a set of professional ethical guidelines.
Ethical misconduct may be observed in defense attorneys, prosecutors, and even judges. A defense attorney might encourage perjury or be complicit in the bribery or intimidation of witnesses. One of the most common reasons for convictions being overturned is ineffective counsel. The most common complaint that defendants express about their lawyers is poor communication. Prosecutors are supposed to be committed to seeking justice, not necessarily a conviction. This means they are supposed to share exculpatory evidence with the defense and avoid the other temptations for unethical behavior: misusing pretrial publicity, using peremptory challenges to obtain a certain racial makeup on the jury, and using false evidence in court. One study found prosecutorial misconduct in approximately 25% of the cases examined.
Prosecutors and judges should be held to a higher ethical standard due to the positions they hold. Judges should recuse themselves from cases in which they hold an interest. The chapter includes an example of judges accepting kickbacks from a private correctional company for sentencing juveniles to their facility. Other ethical shortcomings of judges can include failing to inform defendants of their rights, coercing guilty pleas, and exceeding his or her sentencing authority.
The author cites a study that says 68% of death verdicts examined were reversed due to error; these errors included incompetent defenses and police misconduct. “Innocence Projects” around the country are nonprofit groups led by attorneys that re-examine cases where the defendant may have been wrongly convicted and where there is still DNA evidence available. More than 250 post-conviction exonerations have been achieved, in 34 states. A disproportionate percentage of those who have been proven to be wrongly convicted (40%) are minorities. This fact may be due to racism, higher error rate in cross-racial eyewitness identification, and the defendants’ lack of resources (which prevents them from retaining effective counsel).
Several reasons for misconduct are discussed in the text. Prosecutors exercise discretion when they choose whether to charge someone and which charges to employ. This decision-making takes place out of public view. Prosecutors are shielded from civil lawsuits, since fear of being sued might persuade them to avoid filing certain charges, and because otherwise they would be subject to numerous frivolous lawsuits. As it is, prosecutorial misconduct is generally only examined if the defense objects in court and later files an appeal. Judges are also immune from repercussions for their actions, unless it rises to the level of blatant corruption. As it is, very few complaints to the Bar Associations result in censure or disbarment.
The chapter ends with a look at the ways in which politics can interfere with the judiciary, such as by partisan confirmation procedures, and the firing of judges who rule a certain way. Judges may be characterized as “constructionists” who adhere to the strict written details of the Constitution and avoid making law, and “interpretationists” who believe the Constitution should evolve along with society and who interpret laws with a looser adherence to its specific wording.
Ethical misconduct may be observed in defense attorneys, prosecutors, and even judges. A defense attorney might encourage perjury or be complicit in the bribery or intimidation of witnesses. One of the most common reasons for convictions being overturned is ineffective counsel. The most common complaint that defendants express about their lawyers is poor communication. Prosecutors are supposed to be committed to seeking justice, not necessarily a conviction. This means they are supposed to share exculpatory evidence with the defense and avoid the other temptations for unethical behavior: misusing pretrial publicity, using peremptory challenges to obtain a certain racial makeup on the jury, and using false evidence in court. One study found prosecutorial misconduct in approximately 25% of the cases examined.
Prosecutors and judges should be held to a higher ethical standard due to the positions they hold. Judges should recuse themselves from cases in which they hold an interest. The chapter includes an example of judges accepting kickbacks from a private correctional company for sentencing juveniles to their facility. Other ethical shortcomings of judges can include failing to inform defendants of their rights, coercing guilty pleas, and exceeding his or her sentencing authority.
The author cites a study that says 68% of death verdicts examined were reversed due to error; these errors included incompetent defenses and police misconduct. “Innocence Projects” around the country are nonprofit groups led by attorneys that re-examine cases where the defendant may have been wrongly convicted and where there is still DNA evidence available. More than 250 post-conviction exonerations have been achieved, in 34 states. A disproportionate percentage of those who have been proven to be wrongly convicted (40%) are minorities. This fact may be due to racism, higher error rate in cross-racial eyewitness identification, and the defendants’ lack of resources (which prevents them from retaining effective counsel).
Several reasons for misconduct are discussed in the text. Prosecutors exercise discretion when they choose whether to charge someone and which charges to employ. This decision-making takes place out of public view. Prosecutors are shielded from civil lawsuits, since fear of being sued might persuade them to avoid filing certain charges, and because otherwise they would be subject to numerous frivolous lawsuits. As it is, prosecutorial misconduct is generally only examined if the defense objects in court and later files an appeal. Judges are also immune from repercussions for their actions, unless it rises to the level of blatant corruption. As it is, very few complaints to the Bar Associations result in censure or disbarment.
The chapter ends with a look at the ways in which politics can interfere with the judiciary, such as by partisan confirmation procedures, and the firing of judges who rule a certain way. Judges may be characterized as “constructionists” who adhere to the strict written details of the Constitution and avoid making law, and “interpretationists” who believe the Constitution should evolve along with society and who interpret laws with a looser adherence to its specific wording.
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