Prosecutorial Misconduct, Redux

The epidemic of prosecutorial misconduct described by Judge Kozinski of the 9th Circuit last year continues to spread across the headlines. Take, for example, the former North Carolina prosecutor, known as America’s “Deadliest DA,” who remains unrepentant for failing to disclose Brady material that contributed to the wrongful conviction of two men just released after three decades in prison (one whom was on death row) for crimes they did not commit. Such miscarriages of justice by its putative ministers make it all too easy to assume that every act of prosecutorial misconduct reveals an intentional effort to subterfuge the judicial process.

The psychological reality, however, tells a very different story. As scholars such as Alafair Burke, Keith Findley & Barbara O’Brien, Dan Simon, Dan Medwed, and others have taught us over the years, much of the explanation for misconduct is not that prosecutors deliberately seek to sidestep their ethical and constitutional duties, but rather that they are subject to the influences of various psychological phenomena — such as conformation bias and related tendencies — that make it too easy to engage in a biased assessment and assimilation of information. The result, known by the well-coined phrase “Tunnel Vision,” can cause a prosecutor to marshal evidence relentlessly towards a defendant’s guilt, while simultaneously failing to seek and properly assess evidence of possible innocence.

A powerful reminder of these cognitive distortions is a new article by Mary Bowman, Mitigating Foul Blows (h/t LEF), soon to be published in the Georgia Law Review. Professor Bowman’s work, well worth the read, weaves the research from cognitive science into a rich description of how various actors in the judicial drama – prosecutors, jurors, and appellate judges alike – are influenced by a variety of cognitive biases that contribute to prosecutorial misconduct during the trial phase of a case.

For those of us who study how behavioral science illuminates ethical lapses, we are well served to recall the impressive body of work explaining what is missing often from the headlines: prosecutorial error is frequently not the result of a caricatured, venal government lawyer; rather, much of the blame rests with the all-too-human tendencies that we all possess.

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Big Moral Issues and Everyday Compromises

There are certain big cases that are featured in every legal ethics casebook. In the material on Rule 1.6, Confidentiality of Information, those cases include Spaulding v. Zimmerman and the “Buried Bodies” case. These are compelling cases. Each of them presents a stark contrast between lawyers’ ethical duties and what are probably the moral intuitions of most students. In Spaulding, we examine the conduct of defense lawyers who could have done something to warn the innocent plaintiff of a life-threatening injury uncovered in the medical examination by the defendant’s medical expert. What sort of moral monster, we expect our students to ask, would do such a thing? In the Buried Bodies case, two court-appointed lawyers learn (in part through hypnosis–one of the peculiar elements that make this far from a typical capital case) that the defendant had killed two missing girls, and the lawyers do not reveal this information to the grieving families. Again–what sort of moral monster would do such a thing? Is this what I’m expected to do as a lawyer? At this point, if not before, it becomes clear which students have no intention of going into criminal defense.

This year I rethought my approach to these cases, and greatly reduced the class time we spent on them. There is a danger that focusing on such “big moral issues” cases teaches the wrong lesson: that issues of legal ethics are rare, perhaps once-in-a-lifetime situations, far removed from the practice lives of most lawyers. As an experienced lawyer once told me upon learning I taught legal ethics: “Oh, we had an ethics issue, once.”

Consider the actions of Frank Armani and Francis Belge in representing Robert Garrow in the Buried Bodies case. Neither of the lawyers wanted the case; Armani asked to be excused, but Garrow refused to work with another lawyer, and the judge did not want such a high-profile case to be tainted by the possibility of Garrow defending himself.  It was difficult enough for Armani and Belge to defend such a distasteful defendant in that small community; when it was discovered they knew the missing girls were dead, and where their bodies had been hidden, they were subjected to death threats, criminal charges, and disciplinary complaints. The criminal and disciplinary actions were dismissed, but both lawyers suffered lasting damage to their careers.

Among ethics scholars and the criminal defense bar, Armani and Belge are heroes. Faced with one of the most difficult choices they would ever make, they acted in accordance with their ethical duties. As Thomas Morgan said at an ABA CPR Conference in 2007, theirs is “a central case in our de­velopment and understanding of what it means to be a lawyer.”

What I tried to emphasize to my students this week was that, while the anger and hatred of the community that the lawyers suffered was real, from the perspective of the ABA Model Rules, this was not even a difficult case. Their duty could not have been clearer: their client’s confidentiality must not be violated. What made this a difficult problem was not determining the ethical choice: it was carrying through on that choice.

I have a theory. Without in any way diminishing the integrity of Armani and Belge in protecting their client’s confidentiality, I suggest that their actions were not all that heroic–if by heroic one means something that most of us could only aspire to, and hope to live up to if we were ever in their situation.

I asked my students what they would do in Armani and Belge’s situation. As usual, the class was pretty evenly divided: half felt they would keep the information confidential, and half thought they would find some way to disclose the information–either anonymously, hoping to avoid detection and disciplinary charges, or publicly, and willing to accept the consequences.

I suggested to my students, however, that if they were in Armani and Belge’s situation, almost all of them would do the “right” thing and protect Garrow’s confidentiality.

Armani and Belge found themselves faced with one of those “big moral issues.” The ethical weight of their decision whether or not to disclose hit them in the face. There was no possibility that they could avoid the conclusion that this was a defining moment in their careers as lawyers. To breach confidentiality and betray their client–as loathsome as he might be–was something like an existential challenge to their identity as good lawyers. To breach confidentiality would mean seeing themselves as failures.

In most ethical situations that lawyers face, the duty is not nearly so clear. Situations that might be fraught with ethical problems, such as whether to accept or continue a representation when a conflict begins to appear, can be overlooked. Ethical fading results in a dulled awareness of ethical situations, and problems that present ethical challenges are easily rationalized as business decisions.

This is why I worry about that lawyer whose firm faced an ethical issue, once. Ethical issues arise every day. Most are properly resolved with little difficulty. But the lawyer who doesn’t see them, and who is not on the lookout for ethical choices, is a lawyer at risk.

Upcoming Course on Organizational Ethics

Some readers might be familiar with Professors Guido Palazzo and Ulrich Hoffrage from the University of Lausanne who have written about the unconscious aspects of ethical decision-making.  Here, for example, is the abstract of their co-authored article, Ethical Blindness:

Many models of (un)ethical decision making assume that people decide rationally and are in principle able to evaluate their decisions from a moral point of view. However, people might behave unethically without being aware of it. They are ethically blind. Adopting a sensemaking approach, we argue that ethical blindness results from a complex interplay between individual sensemaking activities and context factors.

But why only read about these fascinating themes? Palazzo and Hoffrage have now teamed up to produce a Massive Open Online Course (MOOC) through Coursera scheduled to start in two weeks.  Entitled, “Unethical Decision Making in Organizations,” the description sounds fascinating:

This course “Unethical decision making in organizations : A seminar on the dark side of the force” will teach you how strong organizational contexts push good people towards unethical decisions. You will also learn how to protect yourself and your organization against such forces lurking in the dark.

Need a bit more enticement?  Here’s the promotional video:

 

Anyone can sign up for the course here, free of charge.