Let's duke it out...

Having done the best I can to restore the comments allow me to respond briefly:

To Karl, who wrote that "I find your opinion of her religious faith to be rather shallow & bigoted. Your central theme that "she, like him has been born again, and the only lens through which to view her is that one" is akin to saying that jews & catholics shouldn't serve either because they would view the world through only that lens." I say this: First, I'm glad the people of deep faith are public defenders--the relationship between the religious precepts of the evangelical community and the ethical precepts of public defender community interests me greatly. I don't seek to condemn Ms. Miers on the basis of her faith, but I do think that the fact of her faith is more predictive of her judicial philosophy than some articles she wrote before that life change. I think to believe otherwise is foolish, if not, in a Supreme Court nominee, dangerous.

As for Tom, who wrote that "Maybe they're just more ethical than you defense lawyers. After all, your "ethical duty" is to represent clients zealously. Theirs is to do justice. It's very tempting for a defense lawyer to act like a sleaze mistaking it for "zeal." Speaking of misplaced zeal, I'd say you overlook the entirely reasonable view that the numbers you cite actually show that prosecutors are just more ethical as a group."

To Tom, I say--nonsense. The reality is, that everyone protects prosecutors whereas defense attorneys have their representation of clients picked apart on a daily basis in postconviction ineffective assistance of counsel claims. Even on direct appeal a DA's courtroom conduct is not subject to that much scrutiny. One reader who e-mailed me privately did a better job of this than I can, taking a small sample from a small corner of the country as an exemplar. That reader pointed out that the fact that DA's almost always skate with little or no punishment doesn't mean that prosecutors are more ethical nor that prosecutorial misconduct isn't rampant. They're not, It is. Just a few examples from Wisconsin

1. A former DA in Kenosha County was known for "pushing the envelope" in order to do justice. In State v. Copening, slip op. Case No. 79-246-CR (Jan. 10, 1980), 1980 WL 99266, the Wisconsin Court of Appeals reversed a criminal conviction, in part, because of prosecutorial overreaching by DA Zapf. Unfortunately, the Supreme Court reversed us at 100 Wis.2d 700, 303 N.W.2d 821 (1981); although they did admonish him. In Disciplinary Proceedings Against Zapf, 126 Wis.2d 123, 375 N.W.2d 654(1985), the Supreme Court publically reprimanded him for unprofessional conduct.

2. In Re Paulus, 2004 WI 71, 272 Wis.2d 143, 682 N.W.2d 326, was a voluntary surrender of a license because Paulus entered a"... guilty plea to a federal count of accepting bribes totaling approximately $48,050 while holding the office of Winnebago County District Attorney, in exchange for benefits to defendants, including the dismissal or reduction of charges, return of seized property, and a request that another District Attorney give lenient treatment to a defendant and an additional federal count of filing a 1999 Form 1040 income tax return on which Paulus knowingly underreported his income for that year." Paulus ran for Attorney General in 2004 and is now in the federal pen.

3. In State v. Lettice, 205 Wis.2d 347, 556 N.W.2d 376 (Ct. App. 1996), the Court of Appeals affirmed an order granting the defendant a new trial because DA "...Lucarelli had filed the criminal charge either to disqualify defense counsel or to delay the jury trial scheduled to begin the following business day and by doing so had engaged in 'intentional misconduct'". But in In Re Disciplinary Proceedings Against Lucarelli, 2000 WI 55, 235 Wis.2d 557, 611 N.W.2d 754, the Supreme Court got wet feet, "We adopt the referee's findings of fact and conclusions of law that the Board failed to establish by clear and satisfactory evidence that Attorney Lucareli filed a criminal charge knowing it was not supported by probable cause. We also accept the referee's recommendation that this proceeding be dismissed without costs to either party."

4. In Disciplinary Proceedings Against Blask, 216 Wis.2d 129, 573 N.W.2d 835 (1998) there was a public reprimand of a DA but it was not for prosecutorial misconduct. Rather he was disciplined for physical altercations including, "On February 8, 1996, following a high school basketball game he attended in Merrill, then District Attorney Blask approached one of the game's referees and expressed significant displeasure with his officiating. District Attorney Blask shoved or pushed the referee into a wall near the door of the locker room, and the referee then went into the locker room."

5. Another public reprimand was issued in Disciplinary Proceedings Against Goetz, 213 Wis.2d 494, 570 N.W.2d 726 (1997), "We determine that the referee properly concluded that Attorney Goetz engaged in professional misconduct by his actions in these matters. We also determine that the nature and seriousness of that misconduct warrant imposition of the public reprimand recommended by the referee. Attorney Goetz's misrepresentation of his identity in order to have his views concerning a public official published in a newspaper and his subsequent use of his public office to deter inquiry into that misrepresentation constitute serious breaches of his professional obligations as a person licensed to represent others and as an officer of the justice system."

And this doesn't even begin to include the private reprimands--the lighter punishment that DA's usually skate with.


Tom McKenna said...

So which is, then? Prosecutors get a free ride, or prosecutors like the ones in your examples (one small fraction in one state) are in fact held to account?

Of course, they are held to account, by attorneys such as yourself, by the trial courts, by the appellate courts, and by the public, which is savvy enough to understand overreaching and improper prosecutions and punish them at the ballot box.

Your feeling that fewer ethical problems are documented against prosecutors because they get a "skate" is simply ipse dixit-- your feeling is not evidence, especially when for the reasons I just mentioned, it seems improbable that a whole class of lawyers is "skating."

WomanoftheLaw said...

I think that saying prosecutors are treated just like all other attorneys is comparable to saying that white people are treated the same way as non-white people. It's hard to sway people who are in one camp or another. I think it would be silly to believe that prosecutors wouldn't get treated more favorably. Prosecutors represent justice, safety, and the community. Defense attorneys are the ones who represent (with sleazy 'zeal') scumbuckets who should be in jail. It would be absurd to think that humans / other lawyers aren't swayed by these perceptions.

Anonymous said...

I couldn't agree with you more. The unfortunate thing is that Robert Zapf is now the DA in Kenosha County once again, and he still displaying signs of arrogance and running roughshod of the rights of individuals.