Ethical Conduct by Prosecutors

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In an adversarial system, like the common law, one of the most important facets in the pursuit of justice is a prosecutor. By a true representation of a criminal case, a prosecutor in a common law acts for the state or the “people.” Furthermore, for a criminal trial to end in a just decision, all the parties in a particular case have to act to the best of their ability, starting from a judge, a defense attorney, to a prosecuting attorney. However, in a system, where an attorney, especially prosecutor’s, get more validation from the public and their peers from the wins that they secure in court, rather than from the justice served in those cases, there have been instances in which prosecutors have gone overboard in their pursuit of what they perceive to be just. However, the zeal of a prosecutor to get a win, rather than do justice, can have disastrous consequences, where not only innocent people are punished, but the guilty walk free, as illustrated by the example of prosecutor Edward Cameron in the case of Commonwealth v Bond et al.

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In October 11, 2014, Joseph A. Slobodzian through news website philly.com (owned by the Philadelphia Enquirer) reported a “stunning legal victory” for the defense of three men who had been on trial for murder. Two of the men already had previous prosecutions for murder. However, Justice of Common Pleas Benjamin Lerner ruled that the men could go free, as prosecutorial conduct in their trail in 2006 case had been so egregious that the retrial of their case would violate their fundamental constitutional rights. The prosecutor in the case was Assistant District Attorney Edward Cameron. The case goes a long way in illustrating the need for prosecutors to be the beacon of pursuit for justice.

The case of Berger v US is the most settled case law on the role of prosecutors in the dispensation of justice. The court in Beger v the US set out clearly that the role of prosecution is not to win at all costs due to the position, power and responsibility the public has placed on the prosecution, but to serve justice, even if this means that the prosecution will end up on the losing end in some cases. However, in pursuit of a good win record, or in the misguided idea of putting people the prosecutors perceive to be guilty behind the bars, this has not always happened. In the United States v Treadway, this is apparent in that the prosecution ties the plea bargain with the rule that co-defendants of Mr. Treadway, they were not to testify in his defense. The court invalidated the clause by citing the case of People v Warren, as it found it to be counterproductive to justice. In the same way, Edward Cameron’s news article notes that the judge, while admonishing the Prosecutor, pointed out that in the United States, the law expects the prosecutor to behave in a manner that shields the interests of justice. Consequently, the law protects not only the rights of innocent but also those of the guilty, if they are denied of fair trial, as in a case when injustice appears.


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In this pursuit of justice, the court in Berger has noted that prosecution has a duty to conduct the trial in a way that is fair and transparent to the defendant. On examining the U.S v Treadway, it is quite apparent that the same does not happen. It is questionable if the prosecution sought fairness in this case, as they charged an individual who obviously needed to be in a psychiatrist hospital, and had, in fact, a psychiatric unit discharged him only a few days earlier. However, this is not the most reprehensible part of the current case. The fact that the Prosecution sought to deny a person who was mentally ill, even the courtesy of a material defense witnesses was against the tenet of fairness, as set out in Berger. Moreover, more than a century after the Berger decision, Prosecutors still involve themselves in conduct that is not fair to the defense is driven by their desire to win. In the news article, the court noted the Assistant District Attorney Edward Cameron was fundamentally unfair to the defendants, in that he sought to vouch for and bolster the evidence, offered by the chief prosecution witness in a way that was meant to unfairly influence the jury. It is notable that the said witness had been a part of three defendants’ charges for the murder, but pleaded guilty and offered to testify for the prosecution. This fact itself raises questions if the prosecution had “incentivized” him for his testimony against his co-accused. Had such a thing happened, it has violated the precedent, cited in the People v Warren.

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Moreover, the prosecutor has a duty to protect the innocent per Berger v the United States. The prosecutors are ethically expected not to charge people with an offense, unless they have a probable, not a possible cause. To protect the innocent and not charge a person, unless the prosecution has a probable cause is an extension of the common law rule that presumes the defendant’s innocence, unless the prosecution proves otherwise. The prosecution is ought not to charge with a crime, based on his disposition or a previous unrelated incident. This provision also instructs the prosecution to balance their zeal between having guilty defendants convicted and their duty to not push for the conviction of innocent people, in spite of defendant’s history. The court took a great exception of this instance in Treadway. In the zeal to get a conviction, the prosecution failed to take into consideration evidence that pointed to Treadway being innocent, including from material witnesses. The court in quoting the People v Coffman, the court explained that what the prosecution had done was ethically abhorrent, especially denying the accused potential exculpatory witnesses. In the news article, unethical conduct by the Prosecution leads the vacation of defendant’s cases. In this case, Prosecutor Cameron uses the criminal history of the accused to sway the jury into a conviction, while misleading the jury by introducing new evidence in the closing stages to secure the conviction.

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Additionally, Berger v the US instructs the prosecution to refrain from “foul blows.” One of the most famous phrases from Berger explained that the prosecution has the right to take “hard blows”, but extolled that the blows must never be foul. The implication from this is that while the prosecution is allowed to be robust in its prosecution, but should never use underhand methods because this would violate the very essence of justice. In Treadway, there are cases where the Prosecution is apparently hitting foul blows towards the prosecution. The court notes that being able to call a witness, and compel attendance, if necessary, is at the very heart of criminal justice system, as held in Re Martin. Furthermore, the right to a compulsory process is guaranteed by the Sixth Amendment and Fourteenth Amendment. Consequently, any action by the Prosecution that undercuts the compulsory process goes contrary to the rights of the defendant. In Treadway, this has happened through the Prosecution, affixing a condition not to testify in support of the defendant to the plea bargains the Prosecution negotiated with the co-defendants. This was by and large what the court in Berger would have considered a “foul blows.” This action was unethical, since it did not help in the pursuit of justice. In the same way, Edward Cameron engaged in what one may consider unethical conduct. He tried to introduce new evidence to the jury in the closing statements that was not used during the trial by telling the jury that the prosecution witness was reliable, as he had helped the prosecution to solve some prior cases. The court ruled that this behavior on the part of Assistant District Attorney as so “egregious that the court could not order a retrial but” let the defendants free by invoking double jeopardy clause without ruling on their guilt or innocence.

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To summarize, the prosecutor holds a special place in the adversarial system. He/she is held to higher standards by the law than any other individual in the American justice system with possible exception of the judge. Consequently, the ethical way of prosecution of criminal cases calls for striking a balance between winning convictions and winning them in a manner that promotes interests of justice. The basis for ethical conduct by the prosecution is laid out in Berger v the US, where the court explained that a prosecuting attorney should never overstep the bounds of propriety and fairness that should characterize the Prosecutor’s office. Doing this, while informed by zeal to win his/her case and a conviction, results in unethical conduct on the part of the prosecutor. This is apparent in Treadway. As illustrated by the news article extrapolating on Assistant District Attorney Edward Cameron and his admonition by Justice Lerner, and the subsequent vacation of the sentences handed to the defendants, a prosecutor failing to do his job in an ethical manner can have disastrous consequences. These include the incarceration of innocent people and setting free the guilty.

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