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Crime

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In high profile cases, prosecutors are often their own worst enemies. The pressure to succeed too often causes prosecutors in the spotlight to make strategic and ethical decisions that can backfire against their case. Several recent high-profile cases illustrate this problem: (1) the Michael Jackson child molestation trial, (2) the Jesse James Hollywood murder prosecution, and (3) the clemency proceedings of murderer Michael Morales.
This essay is not intended to embarrass any particular prosecutor. Indeed, prosecutors in high-profile cases face a particularly difficult task. Each decision they make is put under a microscope by the media and its legal commentators.2 Defense lawyers are quick to claim prosecutorial misconduct, 3 knowing that
∗ Professor of Law, William M. Rains Fellow & Director, Center for Ethical Advocacy, Loyola Law School, Los Angeles. The author wishes to express her gratitude to her fabulous research assistants, Shawn Domzalski and Jeffrey Jensen, for their help with this Essay. As always, their assistance was invaluable. Thank you also to the staff and editors of the Loyola Law School Law Review for their fine editorial assistance. Finally, thank you to Sammy and Marci Maniker-Leiter for their daily inspiration. 1. MODEL CODE OF PROF’L RESPONSIBILITY EC 1–2 (1981). 2. For the ethical responsibilities of prosecutors in evaluating these cases, see Erwin Chemerinsky & Laurie Levenson, The Ethics of Being a Commentator III, 50 MERCER L. REV. 737 (1999); Erwin Chemerinsky & Laurie Levenson, The Ethics of Being a Commentator II, 37 SANTA CLARA L. REV. 913 (1997); Erwin Chemerinsky & Laurie Levenson, The Ethics of Being a Commentator, 69 S. CAL. L. REV. 1303 (1996). 3. There is a plethora of excellent articles discussing the general problem
1238 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 39:1237 in high-profile cases, mistakes that would have otherwise gone unnoticed easily become morning headlines. The high-visibility prosecutor cannot afford the missteps that plague others in cases that escape public detection.
While there are many different types of prosecutorial misconduct,4 this essay will focus on one rarely examined by the legal community—conflicts of interests for high-profile prosecutors. Whether caused by other cases they have handled or actions they have taken in the high-profile case itself, prosecutors can find themselves confronting conflict of interest situations when handling a case that garners great media attention.
In considering these cases, it is important to remember that prosecutors have ethical obligations beyond those of other attorneys.5 of prosecutorial misconduct. See, e.g., Jennifer Blair, The Regulation of Federal Prosecutorial Misconduct by State Bar Associations: 28 U.S.C. § 530B and the Reality of Inaction, 49 UCLA L. REV. 625 (2001); Abbe Smith, Can You be a Good Person and a Good Prosecutor?, 14 GEO. J. LEGAL ETHICS 355 (2001); Ellen Yaroshefsky, Zealous Advocacy in a Time of Uncertainty: Understanding Lawyers’ Ethics: Wrongful Convictions: It is Time to Take Prosecution Discipline Seriously, 8 D.C. L. REV. 275 (2004); Fred C. Zacharias, Reconceptualizing Ethical Roles, 65 Geo. WASH. L. REV. 169 (1997); Catherine Ferguson-Gilbert, Comment, It is Not Whether You Win or Lose, It is How You Play the Game: Is the Win-Loss Scorekeeping Mentality Doing Justice for Prosecutors?, 38 CAL. W. L. REV. 283 (2001); Michael T. Fisher, Note, Harmless Error, Prosecutorial Misconduct, and Due Process: There’s More to Due Process Than the Bottom Line, 88 COLUM. L. REV. 1298 (October 1988); see also Steve Weinberg, Breaking the Rules: Who Suffers When a Prosecutor is Cited for Misconduct?, in HARMLESS ERROR: INVESTIGATING AMERICA’S LOCAL PROSECUTORS (2003), http:// www.publicintegrity.org/pm/default.aspx?act=main; The Innocence Project: Official Misconduct, Police and Prosecutorial Misconduct, http://www .innocenceproject.org/causes/policemisconduct.php (last visited Oct. 18, 2006). 4. Prosecutorial misconduct may range from vindictive prosecution and grand jury abuse to suborning perjury, discovery violations and improper closing arguments. Curiously, the Center for Public Integrity that studies prosecutorial misconduct does not list ethical conflicts as a type of prosecutorial conduct. See Weinberg, supra note 3. Part of the goal of this Essay is to direct more attention to this issue so that both prosecutors and their monitors will have greater sensitivity to the impact of conflict issues on the fairness of criminal proceedings. 5. See generally Laurie L. Levenson, Working Outside the Rules: The Undefined Responsibilities of Federal Prosecutors, 26 FORD. URB. L.J. 553
December 2006] PROSECUTORS AND CONFLICTS 1239
Their job is not to win, but to “do justice.”6 A prosecutor must pursue the guilty, but also protect the innocent. The prosecutor must combine the public welfare with the protection of the individual citizen.7 The prosecutor does not have the luxury of just trying to “win” a case. The prosecutor must strive to reach the just verdict in a case.8 In addition to the ordinary codes of conduct governing lawyers in their jurisdictions,9 prosecutors operate under internal policies10 and ABA Standards for the Administration of Criminal

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