Academic journal article Washington Law Review

Thoughts on the Ethical Culture of a Prosecutor's Office

Academic journal article Washington Law Review

Thoughts on the Ethical Culture of a Prosecutor's Office

Article excerpt

INTRODUCTION

I am truly honored to be asked to speak at this event, particularly an event held in honor of Norm Maleng. I want to talk about maintaining an ethical culture in a prosecutor's office and give you a perspective on the things that have struck me after being an Assistant U.S. Attorney for about thirteen years - approaching seven years this fall as a U.S. Attorney, so about twenty years as a prosecutor. Some of the things I will say are obvious but worth repeating because we have to bear them in mind. Some are slightly subtle but worth pointing out. I want to talk about prosecutorial ethics in general, and also explain the importance of an ethical culture in a prosecutor's office and discuss why we focus on the culture rather than the individuals. It is not a topic we discuss often, which is remarkable if you consider the impact of what goes on in prosecutor's offices.

Everyone in this room knows it, but every once in a while you have to step back and think about the awesome power that a prosecutor has, for good or for bad.1 We need to have that power to do our jobs, but we should recognize how powerful the position is and recognize the risks that accompany it. Across the country, at both the federal and state level, there are an awful lot of prosecutors who have the power to seek the death of a defendant based upon a crime he or she committed. There are few types of power greater than having a role in seeking to take someone's life. Short of that, many prosecutors have the power to seek life imprisonment without parole. For many people, that is a fate about as bad as death - to be locked up in a jail cell and never see the light of day for the rest of your life. Even if the sentence is thirty days in jail, or sixty days in jail, or two years in jail, for the people who spend that time in prison - hopefully guilty, but guilty or not - that is a significant deprivation of their liberty. Even for people who do not go to jail, their reputations can be tarnished by an indictment or a conviction, or merely by being investigated. Corporations can go out of business, not just by being indicted, but also for the fact that they are being investigated. This can affect corporations that may have earned it by their conduct, and can also affect employees who had nothing to do with the wrongdoing.2 In many cases, witnesses who have done nothing wrong have their lives turned upside down merely because they had to testify in court against a friend, a colleague, or a loved one; had to walk into court as part of their obligation to share the truth; or had to expose personal secrets that they would otherwise not choose to share. When you think about a prosecutor's power and how it can affect people in very drastic ways whether they are convicted, charged, called as witnesses, or simply mentioned - you have to think about how much of that power is exercised behind closed doors.

On the optimistic side, I have often said that I think the general public would be impressed with the places I have worked and the people I have worked with. I think they would be impressed to see what happens behind closed doors when prosecutors discuss the facts and merits of a case, the reasons why we should or should not prosecute, and the reasons why we should or should not seek tougher penalties. But power, even when it is necessary, poses the risk that people will abuse it - either by negligence, recklessness, or worse - and power exercised behind closed doors poses an even greater risk. The fact is that more of a prosecutor's important work takes place behind closed doors than in public. We prosecutors should be wary of how we choose to exercise that power when a relatively great amount of it is exercised in the dark.

When you think about that - and I hope I am starting to scare you you recognize that the risks are not just for the individual, and the risks are very serious. There is nothing worse than the notion of someone going to jail who should not. …

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