Category: Ethics

False Facts + Internet Research = Legitimatized Disinformation

In a chilling article titled Google, Democracy and the Truth About Internet Search, the Guardian addresses the dangerous situation of researchers relying on false “facts,” which can be posted by anyone on the internet, that then are memorialized in scholarship and that, in turn, are remembered by search algorithms as if they were legitimate results. The example given, postings that state that “jews are evil,” is traced to show how reliance and continuous clicking on the search results in these postings became generally accepted information.

We have all said this at least once:  maybe, again, we were better off in the past, when people wrote books and used libraries; when we had to think critically and assess for ourselves rather than blindly relying on search results structured to push results with increased clicks, even if fake.

Many libraries and information professionals offer guidance on good practices for evaluating websites and their accuracy. Among some of the basic criteria to consider are accuracy (fact checking), authority (who authored the piece), currency (how out of date is it), objectivity (detectable bias/purpose), and coverage (how comparable to other writing on similar topic).

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International Legal Ethics Conference: Ethics in Criminal Advocacy

The seventh International Legal Ethics Conference took place last week at Fordham Law School’s Stein Center for Law and Ethics. The conference is supported by the International Association of Legal Ethics and was sponsored, in addition, by a variety of  law firms and law schools, including our own law school. We were proud to sponsor this provocative and informative conference.

One of the panels at the conference was devoted to current ethical issues in criminal advocacy from an international and comparative perspective. Panelists addressed a variety of fascinating issues arising in Germany, Israel, the United Kingdom, Chile, Australia and the United States. The panel was moderated by Prof. Lissa Griffin, of the Elisabeth Haub School of Law. A summary of the presentations follows:


CURRENT ISSUES IN DEFENSE ETHICS 

Anat Horovitz, Hebrew University, Israel
Re-trials are the procedure prescribed under Israeli law through which a person who claims to have been wrongfully convicted can try to reverse his conviction. From a legal perspective, the chances of success in an application for re-trial are extremely limited. Since 1948, the Supreme Court has granted a re-trial in only 28 cases, which resulted in the exoneration of 21 convicts. Thus, one of the important challenges that the Public Defender’s Office has focused upon in recent years is the need to bring about change within Israeli society and its legal system in respect to recognition and treatment of wrongful convictions.

Under the Israeli Public Defender Law, the National Public Defender can file a request for re-trial on behalf of a convict, if he or she “determined that there is room to file a request for re-trial on his behalf”. Over the past few years, the Re-trial Department in the Israeli Public Defender’s Office has received between 30-40 applications a year, and following a long and tedious process, filed on average one request a year.

In my presentation, I intend to focus on the extent to which the Public Defender’s Office may take into account its institutional role and aspirations when deciding upon the cases it chooses to pursue and the manner in which these cases should be presented. Examples for dilemmas that can arise in each of these two stages include 1) whether or not to file a request on behalf of inmates who raise only partial claims of innocence, and 2) to what extent a Public Defender’s Office should attempt to prove another person’s guilt as a means to secure its client’s innocence. Had it been a legal clinic, in the first example, or a private attorney, in the second example, I doubt if these issues would have been regarded as problematic, but in the context of a Public Defender’s Office it is unclear how they ought to be approached and to what extent strategic and ideological considerations should impact the way these applications and cases are handled.


Stephanie Roberts, University of Westminster, UK
My presentation looks at the role of defence lawyers in wrongful convictions in England and Wales. I am currently doing an empirical study on our Court of Appeal and I will be using a sample from that where the grounds of appeal have been lawyer errors to see which ones will result in the conviction being overturned. We have had a large number of cases here where asylum seekers have been wrongly convicted of criminal offences such as arriving with a false passport because their lawyer has not explained to them that there is a statutory defence available and they have pled guilty to the charge. The Court of Appeal has now dealt with a number of these and quashed the conviction so I can link the discussion of defence lawyer ethics.  In the limited time for presentations, I will go through the empirical findings of what errors result in an overturned conviction.


CURRENT ISSUES IN PROSECUTION ETHICS 

Shawn Marie Boyne, IU McKinney School of Law, US
For decades, German prosecutors were bound by the principle of mandatory prosecution that mandated that they prosecute any case in which sufficient evidence exists to suspect that a crime has occurred. Beginning in the 1970s however, changes in the legislative code and changes in prosecutorial practice began to erode the force of that principle.  As a result, in the vast majority of “minor” crime, cases are settled with a fine, a deferred sentence, or a dismissal.  At first glance, this practice appears to be consistent with American plea bargaining. However, in contrast to American practice, the crimes that fall into the “minor” crimes category include crimes that are considered to be felonies in the United States, notably rape and corruption. Though those classification decisions are made by the German legislature, they are compounded by the organizational incentives in German prosecution offices that favor efficiency over painstaking investigation and prosecution. These factors, plus the German system’s comparatively lenient sentencing practices, play a large role in explaining why German prosecutions have not fueled an American-style incarceration explosion. In domestic violence and rape cases, these factors prevent German prosecutors from using the criminal justice system to reinforce the goal of gender equality.  Indeed, German prosecutors’ turn towards efficiency has undermined what Damaska labelled as the role of the activist state in the criminal justice process.

Because lay jurors in Germany seldom affect a case’s judicial outcome, there are three main “checks” on prosecutorial decision-making. To begin, victims may appeal a prosecutor’s dismissal decision to the General Public Prosecutors Office. Also, assuming that a sex crimes case makes it to trial, German law allows victims to be represented by a private prosecutor (Nebenklager) who functions like a party in the American system. Finally, if a prosecutor’s work product falls below standards or if a prosecutor breaks the law, the prosecutor may face administrative sanctions.

In this presentation, I argue that taken together, these checks on prosecutorial discretion do not adequately protect victims of sex crimes and domestic violence. As I point out the deficiencies of these systems of control, I will address the question: Why aren’t prosecutors more assertive in prosecuting these types of cases? Is it simply a matter of resources or is it attributable to larger issues in German society?


Marny Requa, Georgian Court University, US

This talk focuses on decisions to pursue criminal cases against police officers and members of the military in Chile for torture and mistreatment. The Chilean criminal justice system has undergone significant reform since 2000. Incidents that arose before the reforms are still dealt with under the old system, generally with magistrates investigating and making prosecutorial decisions after private parties have initiated a case. In the past 15 years, magistrates have been more willing to prosecute these cases. Recent incidents are most commonly prosecuted by a new, independent public prosecutor’s office (Ministerio Público), although a vast number of these are not pursued. Decision-making in both types of cases raises political as well as ethical considerations that have changed over time, a point emphasized in empirical research conducted as part of an ongoing research project titled Lawyers, Conflict and Transition, funded by the UK Economic and Social Research Council. The talk will cover key points from that research impacting on prosecutorial decisions as well as formal and informal forms of accountability.


Lawrence Hellman, Oklahoma City University School of Law, US

Prosecutorial misconduct is now understood to be widespread in the American criminal justice system.  Official misconduct was a factor in half of the 1800+ known wrongful convictions in the United States that have been corrected by post-conviction remedies since 1989.  However, existing accountability systems provide insufficient deterrents to misconduct by prosecutors, and they do little to motivate and enable prosecutors to deter official misconduct on the part of other state actors involved in prosecutions.

I propose consideration of a new approach to prosecutorial accountability that draws on the successful transition to a proactive management-based regulatory system that has been adopted in Australia for incorporated legal services providers.  I will describe how a proactive management-based model of prosecutor accountability might function and suggest how it might be implemented without necessarily applying it to the entire American legal profession.  The proactive model would supplement, not replace, the current reactive system.  It would be designed to reduce not only the misconduct of prosecutors themselves, but also misconduct of other state actors, such a police, investigators, and laboratory scientists.  By reducing official misconduct in the criminal advocacy process, wrongful convictions should become less common and meritorious prosecutions should reach more reasonable outcomes.


Kellie Toole, University of Adelaide, Australia

In Australia, a prosecutor must be satisfied of a ‘reasonable prospect of conviction’ before prosecuting a person for a serious crime. The assessment of the reasonable prospects often involves a relatively objective assessment of available evidence. However, ethical issues arise where witness credibility is critical, as with sex offences, and jury decisions can be unpredictable or even undesirable. Prosecutors have to decide whether to proceed where they assess that a jury might convict but should not, or might not convict but should. This situation raises issues about the prosecutorial role of the community (through the jury) and the State (through the prosecutor), and the fine line between prosecutors properly exercising their discretion, and improperly usurping the decision-making role of the jury.

REMINDER: PCJI Presents Making A Murderer Discussion

making a murdererPlease join the Pace Criminal Justice Institute (PCJI) on Wednesday, March 2, 2016 at 6:00-9:00 PM in the Pace Law School Moot Court Room for an eventLegal, Ethical and Practical Issues: A Panel Discussion on the Netflix Documentary Series ‘Making A Murderer’. Join us as panelists including Professors Carol BarryDavid DorfmanLissa GriffinJill Gross, and alumnus Chris McNerney (’06), Chief of Greenburgh Police, discuss the legal and ethical issues raised by this documentary. Attendees can earn up to 3.5 CLE credits (1.5 ethics and 2.0 professional practice).

Related Readings:

REMINDER: PCJI Presents Making A Murderer Discussion

making a murdererPlease join the Pace Criminal Justice Institute (PCJI) on Wednesday, March 2, 2016 at 6:00-9:00 PM in the Pace Law School Moot Court Room for an eventLegal, Ethical and Practical Issues: A Panel Discussion on the Netflix Documentary Series ‘Making A Murderer’. Join us as panelists including Professors Carol BarryDavid Dorfman, Lissa Griffin, Jill Gross, and alumnus Chris McNerney (’06), Chief of Greenburgh Police, discuss the legal and ethical issues raised by this documentary. Attendees can earn up to 3.5 CLE credits (1.5 ethics and 2.0 professional practice).

Related Readings:

PCJI Presents Making A Murderer Discussion

MaMPlease join the Pace Criminal Justice Institute on Wednesday, March 2, 2016 at 6:00-9:00 PM in the Pace Law School Moot Court Room for an event: Legal, Ethical and Practical Issues: A Panel Discussion on the Netflix Documentary Series ‘Making A Murderer’. Join us as panelists including Professors Carol Barry, David Dorfman, and Lissa Griffin, and alumnus Chris McNerney (’06), Chief of Greenburgh Police, discuss the legal and ethical issues raised by this documentary. Attendees can earn up to 3.5 CLE credits (1.5 ethics and 2.0 professional practice).

Related Readings: