Abstract

http://ssrn.com/abstract=1152792
 


 



The Innocent Prisoner and the Appellate Prosecutor: Some Thoughts on Post-Conviction Prosecutorial Ethics after Dretke V. Haley


Larry Cunningham


St. John's University School of Law


Criminal Justice Ethics, Vol. 24, p. 12, Fall 2005

Abstract:     
We typically think of prosecutorial ethics as encompassing a special set of obligations for prosecutors during the pretrial and trial stages of a criminal case. In the literature and in rules of professional responsibility much attention is paid to the charging function, contact with unrepresented persons, plea negotiations, discovery, and courtroom decorum. Our concern with prosecutorial ethics at these stages is rooted primarily in due process and fairness to the accused. [W]hile he may strike hard blows, the Supreme Court wrote in Berger v. United States, [a prosecutor] is not at liberty to strike foul ones. Whether it is a recognition that the prosecutor acts as a representative of the sovereign or that he or she possesses extraordinary power over people's lives, we speak about the prosecutor's ethical duties as special or additional to those of ordinary lawyers. By preventing a prosecutor from litigating unfairly, the aim is to protect a criminal defendant from an unjust or unwarranted conviction.

What, then, are the ethical duties of prosecutors after the defendant has had his fair shot at trial, but lost? The literature and standards are surprisingly silent, with rare exception, on the post-conviction ethics of prosecutors. Constraints on the prosecutorial function seem to reach their apex at trial. Why? Are the reasons for special or additional ethics for prosecutors non-existent on appeal? Is the vast discretion, present at the pretrial and trial stages and thought by some to justify special ethical duties, absent on appeal? As a recent case from Texas illustrates, ethical issues still abound even after a jury returns a verdict of guilty. Nevertheless, the traditional discourse on pre-conviction duties can help us determine how prosecutorial discretion should be exercised after a conviction has been obtained.

Number of Pages in PDF File: 13

Keywords: prosecutorial ethics, prosecutors, actual innocence, Dretke, Haley, appellate, appeals, post-conviction, habeas corpus

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Date posted: July 4, 2008  

Suggested Citation

Cunningham, Larry, The Innocent Prisoner and the Appellate Prosecutor: Some Thoughts on Post-Conviction Prosecutorial Ethics after Dretke V. Haley. Criminal Justice Ethics, Vol. 24, p. 12, Fall 2005. Available at SSRN: http://ssrn.com/abstract=1152792

Contact Information

Larry Cunningham (Contact Author)
St. John's University School of Law ( email )
8000 Utopia Parkway
Jamaica, NY 11439
United States
718-990-7616 (Phone)
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