What is a Prosecutor's Function(3) To Turn on Other Prosecutors

The duty to inform:

Standard 3-1.5 Duty to Respond to Misconduct

(a) Where a prosecutor knows that another person associated with the prosecutor's office is engaged in action, intends to act or refuses to act in a manner that is a violation of a legal obligation to the prosecutor's office or a violation of law, the prosecutor should follow the policies of the prosecutor's office concerning such matters. If such policies are unavailing or do not exist, the prosecutor should ask the person to reconsider the action or inaction which is at issue if such a request is aptly timed to prevent such misconduct and is otherwise feasible. If such a request for reconsideration is unavailing, inapt or otherwise not feasible or if the seriousness of the matter so requires, the prosecutor should refer the matter to higher authority in the prosecutor's office, including, if warranted by the seriousness of the matter, referral to the chief prosecutor.

(b) If, despite the prosecutor's efforts in accordance with section (a), the chief prosecutor insists upon action, or a refusal to act, that is clearly a violation of law, the prosecutor may take further remedial action, including revealing the information necessary to remedy this violation to other appropriate government officials not in the prosecutor's office.

First, I have to point out what I can only assume is a grammatical error. Let's parse the language in subsection (a).

Where a prosecutor knows that another person associated with the prosecutor's office . . . refuses to act in a manner that is a violation of a legal obligation to the prosecutor's office or a violation of law, the prosecutor should follow the policies of the prosecutor's office concerning such matters.

Hopefully, the policy for refusing to violate legal obligations will be increased pay and job security.

Okay, all goofing aside, this is the typical refutation of the "just following orders" excuse. These sorts of things usually aren't too prospectively useful. Let's be honest, when is the last time you heard of a junior assistant prosecutor turning in Chief Deputy Prosecutor Smith, prosecuting 23 years and heir apparent to the Big Job, into the Bar? It may happen, but it's not likely.

Still, my sense is that a rule like this should be in place to put people on notice. In some cases it may actually lead to some good, but mostly it's there let everyone know that "following orders" isn't going to be a workable defense. This, of course, is why the ABA's Model Ethics Rules have a generic requirement for everyone:

Rule 5.2 Responsibilities Of A Subordinate Lawyer

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

Strangely, Virginia did not adopt this section.

RULE 5.2 Responsibilities of a Subordinate Lawyer
ABA Model Rule not adopted.

I can understand why Virginia might be a little leery of this rule. The nightmare scenario would be a whole bunch of brand-spanking-new law school grads, full of idealism and lacking perspective, flooding the Bar with imagined or exceedingly minor "violations." Still, it does leave a hole. It leaves the "following orders" argument alive. If the Bar has not chosen to kill the "following orders" argument, what does that mean it expects from its younger members (whether in a prosecutor's office, PD office, or civil firm)?

CLTV 26 - Fave 5 & Brady

Well, it's up. The First ten minutes are a fave five. The next ten minutes are a riff on Brady.

How to Make a Prosecutor Paranoid

It's a typical plea agreement, guilty plea. Defendant is first time felony offender and is going to get probation. I'm standing at my table and defense counsel is standing at his next to his client. Before the formal entry of the plea agreement the defense attorney walks up to the judge's bench to hand him some papers.

Defendant walks quickly over to me. I turn toward him. Defense attorney turns back around toward him. Bailiff perks up.

And, the defendant starts effusing thanks to me. He just keeps saying it over and over. Then he starts telling me how he's changed and none of this stuff is ever going to happen again. Then back to thanking me. All I can think to say is "I try to be fair" and "You're welcome." Finally, after a few minutes of this the defense attorney comes back and escorts his client back to the defense table.

I get paranoid. That guy is waaaaaaay too thankful for the deal he got. All I gave him is the probation the sentencing guidelines recommend. What have I missed? Have I given the Pitcairn County Axe Murderer probation by accident? I grab the file and start rereading everything. Defendant only has two misdemeanors on the NCIC. No prior felonies. No violence associated with the offense. He wasn't even rude to the officers involved. Nothing. There's nothing which should have triggered such a reaction. I announce ready when the judge asks.

Things continued per SOP after that. I still don't know what caused such glee over a felony conviction. Defense attorney said he didn't understand it either. I guess there are some mysteries in the universe we aren't supposed to figure out.

CLTV Coming Later Today

Sorry folks, but something is very, very wrong on my computer. All I can figure is that I downloaded the new divx codec and it, somehow, has screwed up my Premiere LE. Spent the morning fighting it, but finally gave up and am doing it now with Windows Movie Maker.

Uploading now, but will have to put it on blawg later today.

Test teh DNA!!!

No Apples in Greater Manchester

Drop an apple core in Greater Manchester and no less than 5 oficers will arrive to arrest you.

Yes, I'm CuSS'ing

I spent the day converting CrimLaw from html tables to CSS. The claim is that it will make the blawg download faster. I can't tell a difference, but maybe it will help one of ya'll.

As to CSS itself, I'm not impressed. It struck me as just being a highly stylized, longer-winded, more formal way to do everything I'd already been doing in plain jane html. The only thing which provided even a little more flexibility was "float" and even that was limited. Of and by itself, it wasn't worth it.

Of course, I wouldn't want to tell that to the author of the book I bought to teach myself CSS. Parts of the book read like a proselytizing religious tract. Thou shalt not use tables or these commands. Thou shalt use blocks and those commands. The only two rational reasons given were the aforementioned increased speed of page loading and improving the ability of programs for the blind to read the page. I'm not too moved by either. I'm not seeing much greater speed - maybe a little, but the page design had to be dumbed down to fit within CSS's parameters (smaller video, removal of bar with credits in it, only one block for cites), so it should be faster. As for the problems with programs to read for blind people, that's a flaw in that program, not in html tables.

I suspect it's like most things. What evolved was messy. There are always people who don't like things messy. These people will put together something that is more formal, trading 50% of their flexibility for 5% improvement. Thus, when I was in high school and everyone was using Basic all the computer wonks were pushing Pascal as a "better" language. I guess some things never change.

As you might suspect by now, I got frustrated doing this today. I'm not satisfied by the blawg as is. Part of this, I'm sure, is that the book I used limited itself to basics (telling me to go buy this or that book for more advanced CSS applications) and I'm frustrated that I don't know the tricks which will allow me to do the things I want to in CSS. I'll learn and hopefully the layout will improve.