Academic journal article Fordham Urban Law Journal

Ethical Deception by Prosecutors

Academic journal article Fordham Urban Law Journal

Ethical Deception by Prosecutors

Article excerpt

INTRODUCTION

Last Spring, the Colorado Supreme Court suspended Assistant District Attorney Mark Pautler for deceitful conduct in securing the surrender of an axe murderer on a killing spree. (1) Although many thought Pautler's conduct was morally acceptable, disciplinary authorities found that he violated ethical rules governing attorney conduct. All states have a rule of ethics that prohibits attorneys from engaging in "dishonesty, fraud, deceit, or misrepresentation." The interpretation of this rule, especially as applied to prosecutors, is unclear and controversial.

Using People v. Pautler (2) as a case study, this Comment sorts through relevant, current interpretations of the rule and proposes an approach for future analysis. Part I discusses the facts leading up to Pautler's disciplinary charges, the opinions of both the disciplinary panel that sanctioned Pautler and the Colorado Supreme Court, which affirmed the sanction, as well as the public response to Pautler's actions. (3) Part II examines how disciplinary authorities treat prosecutorial deception and the role imminent circumstances have in such discipline. (4) Finally, Part III concludes that when prosecutorial deceit does not involve the formal legal process, deceit may be justified if the moral costs are significantly exceeded by the moral benefits. (5)

I. THE PAUTLER CASE

A. Facts

Mark Pautler, a deputy district attorney in Jefferson County, Colorado, (6) was at home one Saturday when he was called to one of the most disturbing crime scenes of his career. (7) As he arrived and looked in the door to the townhouse, staring back at him were the eyes of a dead woman sitting duct-taped to a chair surrounded by a pool of blood; her skull was split, blood and pieces of her brain were splattered on the floor, walls, and even the ceiling. (8) Another body was discovered by the fireplace with a blood-filled plastic bag over its head, and a third body, wrapped in garbage bags, was found by the wall nearby. (9)

A few minutes later, a call came in from the Denver Police Department, informing Pautler that there were three kidnap victims; Pautler then left to interview them. (10) One of these hostages, J.D.Y., had witnessed a murder at the townhouse by a William Lee 'Cody' Neal. (11) Neal had brought J.D.Y., a girlfriend's roommate, to the townhouse saying he had a "surprise" for her. (12) Inside, two women, the owner of the townhouse with whom Neal had been living for two years, and a woman who was supposed to travel with Neal to Las Vegas that weekend, lay dead. (13) Neal tied J.D.Y.'s wrists and ankles spread-eagle to four eye-bolts installed in the floor just for that purpose, cut her clothes off with a knife, and terrorized her by placing a piece of an earlier victim's skull, with bloody hair still attached, on her stomach. (14) He then brought in a third victim, duct-taped her to a chair facing J.D.Y., welcomed her to his "mortuary," gave her a cigarette, fed his cat, (15) asked her "what kind of day she was having," (16) and then killed her by striking her skull repeatedly with an axe as J.D.Y was forced to watch. (17) Then, Neal picked the victim's cigarette up off the floor, smoked it, placed a gun to J.D.Y.'s head, and raped her. (18)

The next morning, Neal took J.D.Y. to her apartment and held her, her roommate, and a male friend hostage at gunpoint for thirty hours. (19) During this time he made J.D.Y. tell the others what she had seen at the townhouse, (20) and dictated the details of his crime spree into a tape-recorder. (21) He finally left the three hostages with instructions to contact law enforcement and gave them a pager number where he could be reached. (22)

In the early evening, detectives paged Neal from J.D.Y.'s apartment according to his instructions. (23) Neal returned the call on a cellular phone, from which his location could not be determined, and spoke with Deputy Sheriff Sheryl Zimmerman for over three and one-half hours. …

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