- CNN’s Unethical Experts. Where does CNN find these people? Carol Costello interviewed two former prosecutors regarding the beginning of grand jury deliberations in Ferguson, both female; one white and blonde, one African American. (As soon as I retrieve the names of these disgraceful representatives of the legal profession, I’ll add them to the post.) The African American prosecutor made her position clear: since St. Louis County Prosecutor Robert McCulloch has the authority to charge Officer Darren Williams without resorting to a grand jury, that’s what he should do. She termed his resort to a citizen panel to review the evidence a “punt.” Note that McCulloch’s critics have no idea what evidence is in his hands, so criticizing his decisions regarding it is by any measure irresponsible, unprofessional and unfair. She also suggested that McCulloch was biased against African Americans because his father, a police officer, had been shot and killed by a black man. She presented no other evidence of racial bias. Then Costello went to the blonde ex-prosecutor, who a) agreed that using the grand jury was a “punt”—again without her personal knowledge of the evidence being considered; b) opined that the evidence was probably a mess, and was not clear enough or sufficient to conflict the officer of anything, so c) what should be done is appoint a special prosecutor as in the Trayvon Martin case. She noted that the Martin special prosecutor, Angela Corey, brought an indictment without using a grand jury, and that while the case may not have had enough evidence to sustain a conviction...“at least it calmed things down.”
AT LEAST IT CALMED THINGS DOWN???? Did I really just hear a prosecutor on a national news broadcast endorse charging a police officer with homicide without sufficient evidence in order to pacify a lynch mob? Indeed I did. But I am a legal ethics expert ( and a former prosecutor), and I can recognize immediately how wrong this is. Most of CNN’s audience, and obviously anchor Carol Costello, cannot. This indefensible statement endorses conduct that is unambiguously forbidden by the Rules of Professional Conduct in every jurisdiction as well as the ABA’s prosecution guidelines. We do not, and must not, put innocent parties—and remember that since a defendant is innocent under the law until proven guilty, a man who is charged with a crime that a prosecutor knows cannot be justly proven beyond a reasonable doubt is by definition innocent—under legal peril of trial and imprisonment because a large, angry, threatening or violent segment of the public demands it. The commentator also, astoundingly, endorsed the conduct of Angela Corey in charging Zimmerman, which has been virtually unanimously condemned as incompetent, biased, and unethical. [Also here.]
- The Prosecutor. Should McCulloch, who has been the St. Louis County Prosecutor for about two decades, recuse himself from the case because his father was a cop murdered by a black man, because he is white, because he is presumed to be sympathetic to law enforcement? He is certainly not obligated to do so, ethically or legally. The fact that McCulloch is white, despite the clear attitude of bigoted commentators and pundits, as well as those who have decided that Wilson must be guilty because he is white, does not prove the prosecutor is biased, or even suggest it. All prosecutors are sympathetic to police and law enforcement: they are on the same side, after all. That doesn’t mean that they approve of police misconduct or criminal activity. Nor is McCulloch’s father’s death a fair reason to distrust him. McCulloch’s family history constitutes a possible personal conflict of interest, about which Missouri’s rules governing attorney ethics directs…
RULE 4-1.7: CONFLICT OF INTEREST: CURRENT CLIENTS
(a) Except as provided in Rule 4-1.7(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
Who determines whether there is a significant risk? The lawyer, and the lawyer’s clients do. Continuing:
(b) Notwithstanding the existence of a concurrent conflict of interest under Rule 4-1.7(a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
McCulloch’s client is the County, not, as Angela Corey unethically claimed, the shooting victim. If the prosecutor believes that his potential conflict won’t interfere with his fair and zealous prosecution, and his client the County agrees, than he is permitted by the ethics rules to handle the case.
Nonetheless, I think McCulloch’s most ethical course would be to step aside, and let a special prosecutor appointed by the governor take the case from here. In a case such a high-profile, emotion-charged case as this, the public perception of bias is as harmful as real bias. The prosecution must strive for the public trust. Although I don’t have high hopes that any decision other than charging Officer Wilson with murder will satisfy the Race Furies driving this crisis, it is not only vital for the process to be fair and unbiased, but for it to appear to be as well. That means, I believe, appointing an objective, non-white special prosecutor with no connection to local law enforcement and no family history that might suggest bitterness against blacks or sympathy for police. Yes, the decision not to charge Wilson, if that is the result, still won’t be accepted by activists and bigots who have pre-judged Wilson based his race and Brown’s. Just because making every effort to be and appear fair will be futile, however, is not a reason not to make the effort.