08 May 2008

What is a Prosecutor's Function? (2)

I've read more deeply into the ABA's document "Prosecution Function" and have come to the realization that I'm not going to waste the next month going over every bit of a document that spends a good bit of space stating the blindingly obvious, like "prosecutors prosecute" (3-1.2(a)); issues even more obvious ethical directives to prosecutors, such as don't prosecute a case if your Mom is the defense attorney (3-1.3(g)); and tries to issue directives to legislatures, like requiring prosecutors get paid at a level equal to the private Bar (3-2.3(e)).

Instead, I'm going to go through and point out some of the things that pop out at me as I read the document.

Let's start with the Public Statements section.
Standard 3-1.4(b) A prosecutor should exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor from making an extrajudicial statement that [the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding].
Let me explain something to ya'll up at the ABA. I don't have the power to make "law enforcement personnel" do or not do anything. Most of the time we are working in the same direction and there isn't any conflict. However, if the Chief Constable of Pitcairn County decides to have a big, splashy press conference and announce to the entire world that his constables caught John Smith last night and that Smith confessed to being the Pitcairn County Axe-murderer, what exactly does the ABA think I can do about that?

Standard 3-2.3 Assuring High Standards of Professional Skill

(d) Special efforts should be made to recruit qualified women and members of minority groups for prosecutorial office.
Huh? How is that under the "Assuring High Standards" section? Neither gender nor being a member of a particular group means a person is more or less highly qualified. If you want prosecutors to be PC stick it under a social consciousness requirement.

Standard 3-2.8 Relations With the Courts and Bar

(e) . . . [A] prosecutor should assure defense counsel that if counsel finds it necessary to deliver physical items which may be relevant to a pending case or investigation to the prosecutor the prosecutor will not offer the fact of such delivery by defense counsel as evidence before a jury for purposes of establishing defense counsel's client's culpability.
No. Absolutely wrong. This rule codifies incestuous behavior; basically, it states that we lawyers will protect our own. If I somehow become a pertinent witness the defense attorney should call me; if the defense attorney becomes a pertinent witness I should call her.

Lets put a set of facts to this. There have been a series of axe murders in Pitcairn County. John Smith is caught, charged, and assigned Indigent Defense Attorney (IDA). John Smith goes to IDA's office to meet her on 02 June. On 03 June IDA comes to my office and hands me an axe. She refuses to discuss anything about the axe, but when it's tested there are blood traces matching 4 of the murder victims.

How do I even introduce the murder weapon without calling Defense Attorney? John Smith's new attorney, appointed after IDA was conflicted by becoming a witness, should limit my questions in front of the jury by a motion in limine, but I need to and should be allowed at least these three questions: 1. Was Mr. Smith your client? 2. Prior to 03 June, when and where had you met with Mr. Smith? 3. You gave this axe to me on 03 June? In this manner I establish a foundation for entering the axe into evidence based upon circumstantial evidence (without going near confidential conversations or work product, both protected by privilege). I can't lay that foundation without calling IDA.

So, rule or no rule, I'm calling that defense attorney.

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