Tagged: prosecutorial misconduct

New Perspectives on a Famous Literary Murder

BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

In 1942, while France was under World War II German occupation, a novel telling the story of a murder was published in Paris by the renowned Gallimard publishing house. The author was a Frenchman born and raised in Algeria (at the time annexed by France) who completed a first draft of the novel in 1940 while, at age 26, he was working in Paris. In the decades following the war, this novel would be published in sixty languages and attract considerable attention because of the stark and challenging questions it posed about human violence and criminal justice. Its original title was L’Étranger; its title in English would be The Stranger in American editions and The Outsider in British editions.

The author was Albert Camus. For L’Étranger and other writings, Camus would be awarded the 1957 Nobel Prize in Literature, in acknowledgment of “his important literary production, which with clear-sighted earnestness illuminates the problems of the human conscience in our times.”

The events in the novel take place in Algeria and are narrated by an Algerian Frenchman named Meursault. The novel begins with Meursault learning that his mother, with whom he appears to feel no close attachment, died in a home for the aged to which he committed her, and subsequently attending her funeral, during which he showed no outward signs of grief. Not long afterwards, Meursault fatally shoots a man – identified in the novel only as an “Arab” – who was armed with a knife and was involved in a quarrel earlier that day with one of Meursault’s acquaintances. When pressing for a capital murder conviction, the Prosecutor uses testimony he construes as showing Meursault’s lack of feeling for his mother to portray him to the jury as a heartless man who callously killed the victim. Narrating the course of his trial and its immediately preceding events, Meursault is laconic, focused primarily on the present, and apparently detached from any of the connections to family, religion, or culture that support human life. It is not until he is condemned to decapitation by guillotine that Meursault dispenses with previous pedestrian and random observations and, with relentless honesty, becomes seriously focused on his fate and his confrontation with death.

In a novel published in Algeria in 2013 – some seventy years after publication of L’Étranger – Kamel Daoud, an Algerian writer and journalist, creatively revisits the events portrayed in L’Étranger. Daoud’s novel is narrated, many years after the crime, by the brother of Meursault’s victim. The narrator provides the reader with an account of his brother’s life and personality and reflects on the effects his brother’s murder had on him, his family, and his community. Issues regarding colonialism in Algeria, which are present but at times below the surface in L’Étranger, come to the fore in Daoud’s novel. The book, which has been translated from French into English under the title The Meursault Investigation, has received several literary awards, including the 2015 Prix Goncourt du Premier Roman for a novel written in French as an author’s first novel.

Recently, Alice Kaplan, the John M. Musser Professor of French and chair of the Department of French at Yale University, published Looking for The Stranger: Albert Camus and the Life of a Literary Classic (University of Chicago Press 2016). The book provides a fascinating account of Camus’ life and work, including his early career as a newspaper reporter covering criminal trials in Algeria and his work as a writer for a French underground journal supporting resistance to the Nazi occupation. Kaplan details the complicated series of the events involved in getting L’Étranger published in occupied France and discusses the book’s reception in the post-war years. She also comments on the perspective Daoud takes in The Meursault Investigation.

Kaplan’s book, when read together with the novels of Camus and Daoud, provides the reader with insight into an important chapter in intellectual and literary history, and with searching consideration of several criminal justice issues, including prosecutorial manipulation of character evidence, cross-cultural violence, and capital punishment.

The LIBOR Trials: An Example of Prosecution Overreach?

From our most recent guest contributor, Julie Pabon, Esq., a 2006 Graduate of Elisabeth Haub School of Law at Pace University and currently serving as Senior Counsel of an Am Law 100 Firm focusing on environmental law, read the author’s review of a three month long trial in the United Kingdom, in which three men, all former low-level employees of Barclays Bank, were sentenced for activities that the U.K. Serious Fraud Office alleged to constitute  “manipulation” of the London Interbank Offered Rate (“LIBOR”), a global interest rate benchmark.

Read the full article entitled The LIBOR Trials: An Example of Prosecution Overreach? 

Upstate NY Murder Prosecution Ends in Acquittal: A Look at the District Attorney

In a Huffington Post blog titled A Most Dangerous Prosecutor: A Sequel, Professor Bennett L. Gershman, of the Elisabeth Haub School of Law at Pace University, describes what may be a unique record of prosecutorial misconduct that has yet to bring a disciplinary response.

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.

Today in the U.S. Supreme Court….

Today, the US Supreme Court is considering a question of

whether the constitution is violated if the chief judge on the highest court of the state refuses to disqualify himself in a death penalty appeal where he was the chief prosecutor who authorized the defendant’s death sentence, obtained the death sentence though his office’s misconduct, and campaigned for the judgeship by showing how many people he put on death row, including the defendant.

Interestingly, amici included many judges, including the late Judge Judith Kaye, who argued that the judge should have recused himself, and a group of professional responsibility law school professors on the same side.

Prof. Bennett Gershman analyzes the issues and implications of Williams v. Pennsylvania in his latest HuffPost article titled A Perfect Storm: Judicial Prosecutorial Misconduct, and a Death Sentence and outlines the various issues involved in this case.  The ultimate question is not only whether the judge should have disqualified himself when deciding the defendant’s death penalty appeal but also whether, if he didn’t, his bias on the panel decision was nothing more than a harmless error. As Prof. Gershman concludes that

…without Justice Scalia, a 4-4 split on the Supreme Court is possible. And if that is the result, then under the Supreme Court’s rules the decision of the Pennsylvania supreme Court would be affirmed – and Terrence Williams will be executed.

Related Readings: