Yes, Jack McCoy would probably be disbarred in the real world…

Aaron Brockler, an assistant Cuyahoga County (Ohio, including Cleveland) prosecutor, was fired last month for  using a false identity on Facebook  to try to influence the testimony of  defense witnesses in a homicide case.

He initiated Facebook discussions with two women listed by the defense as alibi witnesses in a murder prosecution. Brockler pretended to be a former girlfriend of the defendant who had a child fathered by him, and urged the witnesses not to “lie for him.”  County Prosecutor Timothy J. McGinty fired Brockler, who by my count violated at least Ohio legal ethics rules 3.4, 3.7, 3.8, 4.1, 4.2 and 8.4, (tampering with evidence, suborning perjury, becoming a necessary witness, prosecutorial misconduct, misrepresentation of facts, contact with a person represented by counsel and dishonesty) and perhaps some others. Prosecutors are not allowed to tamper with defense witnesses, or try to influence any witness testimony. They are not permitted to contact represented parties in connection with a prosecution, unless the lawyers are involved. They are not permitted to lie or pose as someone they are not over the internet. They are not permitted to make themselves witnesses in their own cases. Brockler wasn’t just fired for cause, he was fired for multiple causes, any one of which would have justified kicking him out the door.

Yet despite being a veteran county prosecutor of seven years standing, he insisted, in interviews with the media, that he should not have been fired, and that to the contrary, he did the right thing. “I think the public is better off for what I did,” said Brockler. “Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth.”

This statement would be a good reason to fire Brockler all by itself, as it shows that his ethics compass, an essential tool for prosecutors, is prone to magnetic disturbances by unethical rationalizations. There are two classic rationalizations in that sentence: “It’s for a good cause,” better known as “the ends justify the means,” and “everybody does it.” Both, in this case, are factually and ethically wrong. The public is not served by having prosecutors lie, cheat, suborn perjury and otherwise distort the justice system to convict accused criminals. The public is imperiled, because lawless prosecution has a history of moving from persecuting the guilty to persecuting the innocent.  And while it may be true that many prosecutors have engaged in ruses, ethical prosecutors do not, and the particular ruse he used has never been approved anywhere.

The usual issue is whether a prosecutor can supervise or oversee deception by police or other investigators. Ever since the Gatti case in Oregon (2000) declared that state attorneys could no more use lies and deception in their legal practice than private attorneys could, the profession in general and prosecutors in particular have been wrestling with the question, and losing. Both Virginia and the District of Columbia, for example, have issued self-contradictory opinions  suggesting that the application of Rule 8.4 (Misconduct) should be limited to cases where a lawyer’s deceptive investigative activities conduct indicate that he or she lacks integrity and trustworthiness, the requisite character required for bar members. But this is a circular argument, because the Rules in those and other jurisdictions forbid dishonesty specifically because lying inherently suggests untrustworthiness.

Ohio has no such weasel words in its legal ethics opinions, so Brockler’s lament was neither relevant to his own jurisdiction nor appropriate to his actions—posing as someone else to get the defense’s alibi witnesses to recant would be condemned anywhere, including Virginia and D.C.  What is almost as troubling as the fact that a veteran prosecutor would claim that he saw nothing wrong with such conduct, however, is that the news media made no effort to explain the ethics issues at the core of Brockler’s firing, or to explore the uneasy truce state and municipal attorneys have with the ethics requirement that lawyers shall not engage in dishonesty, misrepresentation, fraud or deceit.

How much, if at all, do we want prosecutors to be able to lie or engage in “dissemblance,” as a New York ethics opinion coyly described it, to apprehend and convict dangerous criminals? How can we complain about district attorneys misrepresenting evidence to convict defendants (who later turn out to be innocent) if we approve of lies in other aspects of the case, from arrest to trial? The public needs to debate these questions, and debating it intelligently and productively requires some knowledge and understanding. It’s the news media’s job to provide that, but it does not appear reporters are willing to take the time to educate themselves, much less anyone else.

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Facts: Cleveland Plain Dealer 1,2

Source: ABA Journal