My “Doing Justice” Awards for 2013

The duty of the prosecutor is to seek justice, not merely to convict.”  ABA Standard 3 – 1.2(c). The Function of the Prosecutor

In my earlier blog entry “How Our Criminal Justice System Got So Out of Whack” I talked about the balance of powers in the criminal justice system, and how, in theory at least, “on the one side there was a relatively conscientious and ethical prosecutor and the other side a relatively conscientious and ethical defense attorney….”  As I explained, economic disparity between the two sides and pressure on prosecutors and police to increase forfeiture revenue upset that balance and threw the system out of whack.

Another mechanism designed to protect the integrity of the justice system is legal ethics. “Legal ethics” are the dividing lines between right and wrong, that are carved differently for lawyers than for other citizens. Lawyers are required to be advocates for their clients’ causes, no matter how imperfect the client is. Lawyers are required to advocate the client’s cause and not reveal the client’s damaging secrets, presenting their case in the best light possible, without crossing the line into falsifying evidence or suborning perjury.  Legal ethics are much more complicated than that, but I’ll talk about that in a later blog.

Prosecutors are subject to the same ethical standards as other lawyers, plus: (1) when they take office they have to take an oath promising to support and uphold the Constitution, and (2) they have an additional ethical duty as prosecutors “to seek justice, not merely to convict.”  In a later blog I will talk about some prosecutors that I have encountered that crossed the line and did not act ethically – much less “do justice” – but it’s almost New Years, and I’d like to end 2013 on a positive note.

Plus, I just got some great news today.  My paralegal was updating the dockets on my cases and discovered that one of my forfeiture cases had been dismissed!  My client was a third party claimant in a criminal forfeiture case brought against his land because of criminal charges against his former land partner. In November I had written a letter to the prosecutor explaining why they did not have a case against my client’s land, and asking that they dismiss the forfeiture case. I had made this argument months earlier to the prosecutor’s paralegal, to no avail, and when I didn’t hear back from them this time, I assumed they were going to make us duke it out in court.

Today we learned that after he received the last letter from me, Indiana AUSA Gregory Gilmore filed a motion to dismiss the forfeiture case, stating that his office had determined that my client was a bona fide purchaser for value of the criminal defendant’s former interest in the parcel, and asking the judge to dismiss the forfeiture.  The judge dismissed the case.  Thank you AUSA Greg Gilmore for doing justice!

Another AUSA who gets a 2013 award from me for doing justice is Arizona AUSA John Lopez, again a federal criminal prosecutor.  I am not at liberty to talk about that case right now, for an unrelated reason.  I can say that I was very impressed that, when I came into the case, and questioned the advisability of a pre-indictment plea offer that the previous defense attorney had been negotiating with him, AUSA Lopez kept an open mind and objectively evaluated the additional evidence and case law that I provided him. He was very polite and reasonable in all of our discussions, and patiently had his agents conduct additional follow-up investigation.  In the end he agreed to close the criminal investigation without criminal charges – a just result – and gave us a letter to that effect.  Thank you AUSA John Lopez for doing justice!

This is not an every day occurrence.  In fact, only two prosecutors get this award from me for the entire year of 2013.  In most prosecutors offices, the pressure from above to secure convictions – and especially to secure property forfeitures – is intense, and it colors attitudes.  Too often litigation becomes war, and opposing attorneys become the enemy. It shouldn’t be that way.

Over the years I have enjoyed pleasant relationships with a number of prosecutors I found to be fundamentally fair and just, but many of those have moved on to other employers, to be replaced by zealots. More often these days, prosecutors will take an aggressive adversarial stance and continue to square off against the defense even when they are shown to be wrong about the law or lacking in evidence to support their theories.

Prosecutors who have the ethical chops to do justice like this need to be encouraged and praised for behaving ethically.  That is why I am honoring them today, at the close of 2013.

Let’s hope next year there will be more AUSAs awarded this prestigious honor!