Purely applied tools. Thinking is difficult and sometimes unpleasant.

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1 Purely applied tools Bell Labs success factors Freund, Hentoff, the Curmudgeon Munger s 24 Standard Causes of Human Misjudgment Valuable Intellectual Traits Thinking is difficult and sometimes unpleasant. Dan Ariely, Predictably Irrational 3 (2008) 1

2 Puzzle The Adam Smith Problem The Theory of Moral Sentiments (1759) The Nature and Causes of the Wealth of Nations (1776) Leif Carter, The Social Limits of Order (1974) [The maintenance of justice, defined as uniform outcomes, imposes cots that make it difficult for law enforcement bureaucracy to adapt.] This alterative conception requires that those who do justice maintain the capacity to learn [1] new information about the cases they handle; [2] about social preferences concerning crime, and [3] about the consequences of punishment. [W]e should prefer that such control efforts [directly purely at order] should fail, hat criminal justice reform should instead seek primarily to develop men and organizations that change. innovate, and learn in a sustained rather than haphazard fashion. Pp

3 Leif Carter, The Social Limits of Order (1974) Summary of Criminal Prosecution and Social Science, pp Few legal constraints on prosecutorial discretion. 2. But discretion is constrained by informal norms of fairness developed through reciprocal relationships in defense attorneys and judges. 3. Prosecutors tend to proceed with prosecution only when they believe that defendant is morally guilty of a legally proscribed act. But the factors that produce this belief can widely by prosecutor. 4. Belief that a crime has been committed is not enough to warrant prosecution. Limited resources, reluctant witnesses, alternative methods of case deposition all push toward leniency. 5. Although politics influence general patterns of prosecutorial behavior, most specific case decisions and dispositions are buffered from direct political influence. Leif Carter, The Social Limits of Order (1974) Prosecutors and Defense Attorneys, pp In Vario County, few criminal defense lawyers with significant trial skills. So plea bargaining strategies predominant: Widely varying strategies Regardless of the strategy the defense attorney chooses, the prosecutor adjusts to cues from the defense attorney, the most important of which is the defense attorney's trustworthiness [which is developed through repeat interactions]. 3

4 Leif Carter, The Social Limits of Order (1974) Prosecutors and Defense Attorneys, pp The essence of the trust relationship is that it reduces uncertainty for both attorneys. Men need not share each other's personal values or substantive beliefs in order to trust one another. [T]he trust relationship in all cases required that each perceive the other as honestly seeking the truth, as avoiding, to use the most common phrases, "blowing smoke." "playing games with the facts," or "bullshitting. Zealous Advocacy MR Preamble. A Lawyer s Responsibilities. [2] As a representative of clients, a lawyer performs various functions. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. Rule 3.1 Meritorious Claims And Contentions Comment [1] The advocate has a duty to use legal procedure for the fullest benefit of the client's cause In a criminal context, is it ethical to not aggressively pursue all your client s potentially meritorious legal claims and defenses because it will undercut your ability to achieve more just outcomes for future clients? A. Yes B. No C. It depends 4

5 Felkenes, The Prosecutor: A Look at Reality The work environment of the prosecutor places on him demands that are often ambiguous and conflicting. The strains of maintaining public support and acting effectively in prosecuting suspects make this highly visible government position vulnerable to numerous compromises. One such compromise is the "conviction psychology" attributed to some prosecutors. Emphasis focuses on the achievement of a high conviction rate rather,than a high rate of justice. P. 99. Felkenes, The Prosecutor: A Look at Reality Adherence to "conviction psychology" arises as much out of 1he imitation of superiors as out of peer group conformity. Conformity to this set of attitudes which are of utmost importance to the professional elders and of little importance to the public may guarantee career opportunity. Movement upward within the prosecutor's office may greatly depend on the prosecutor's successful assimilation of "relevant and useful" attitudes toward prosecution. The young prosecutor desirous of career stability may well [imitate this behavior and perspective]. P

6 Occam s Razor Developed by a 14 th century philosopher. Posits that the explanation of any phenomenon or event should make as few assumptions as possible, eliminating those that make no difference in the observable predictions of the theory. All else equal, the simplest explanation that accounts for all facts is the best. Facts in Convertino Case Rick was a true believer prosecutor Rick was disliked by a lot of his office colleagues But he was not disliked by everyone: FBI agents, supervisors. Rick believed that the Detroit Sleeper Cell defendants were guilty Because of 9/11, cases like the Detroit Sleeper Cell case were important to the DOJ political appointees in Washington It was stupid for Rick to threaten his supervisor After getting a conviction in the Sleeper Cell case, Rick was reprimanded 6

7 Facts in Convertino Case There were institutional politics going on between the DOJ and the Senate (Grassley, head of the Judiciary Committee). Should Rick have gotten on the plane to DC to testify? It was illegal and improper to leak details of internal investigation on Rick Endangered life of uncover informant Lawsuit still pending; Detroit Free Press reporter won t give up source In the annals of the DOJ, petitioning to undo a conviction and, in turn, prosecuting the prosecutor, is a rare if not unprecedented act. Rick was acquitted by a jury of charges of prosecutorial misconduct Law enforcement goals and policy (national security) goals are in conflict Deterrence versus justice Prosecutorial Discretion In Midland County, the District Attorney, who is elected, routinely cites office statistics on the number of convictions and the office s overall win rate (94%). Among Midland prosecutors, convictions, win rate, and average length of sentence are important measures of success. Prosecutor Jones believes that Smith committed a robbery but has doubts that her case is strong enough to obtain a conviction at trial. Under the Model Rules, can she ethically seek a plea bargain with Smith s attorney? A. Yes B. No 7

8 Rule 3.8 The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause Comment [1]: A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that that guilt is decided upon the basis of sufficient evidence. The extent of mandated remedial action is a matter of debate. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Competent representation of the sovereignty may require a prosecutor to undertake some procedural and remedial measures as a matter of obligation. [K]nowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4. Standard Discretion in the Charging Decision (a) A prosecutor should not institute, or cause to be instituted, or permit the continued pendency of criminal charges when the prosecutor knows that the charges are not supported by probable cause. A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction. 8

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