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By Helen W. Gunnarsson
One lesson from the 2014 unrest in Ferguson, Missouri, is that state courts and the ABA should curtail the conflicts of interest of lawyers who simultaneously hold multiple part-time positions as municipal court judges, prosecutors, and defense counsel in neighboring communities, said panelists at “Confronting Ferguson: Ethical Dilemmas for Lawyers and Judges.” The June 2 program was part of the 43rd National Conference on Professional Responsibility in St. Louis.
In the patchwork quilt of municipalities that makes up the greater St. Louis area, it’s not uncommon for a part-time judge in one city to be a part-time prosecutor in another, or a criminal defense attorney to be a part-time prosecutor a few miles down the road. And small, cash-strapped municipal courts can give rise to other ethical problems, like the use of court fines to generate revenue rather than impose justice, panelists said.
After the 2014 shooting of Michael Brown, an unarmed black man, by a white police officer in the St. Louis suburb of Ferguson, the Department of Justice undertook a comprehensive investigation of the Ferguson Police Department’s law enforcement practices. In its 102-page report dated March 4, 2015, DOJ found that the city’s law enforcement efforts were focused on maximizing revenue, not increasing public safety. And the emphasis on revenue generation, the report said, has “fundamentally compromise[d] the role of Ferguson’s municipal court,” which “does not act as a neutral arbiter of the law or a check on unlawful police conduct,” but rather uses its authority primarily “as the means to compel the payment the payment of fines and fees that advance the City’s financial interests.”
The result, the report said, is “court practices that violate the Fourteenth Amendment’s due process and equal protection requirements.” And those practices “impose unnecessary harm, overwhelmingly on African-American individuals,” and damage public trust in the courts. [Report, at 3.] ( Program materials, including the report, are available on the ABA’s website.)
Panelist Peter Joy, professor at Washington University School of Law, said fines and fees assessed against individuals for violating local ordinances have become a significant source of revenue for many poorer municipalities. According to the DOJ report, “the City considers revenue generation to be the municipal court’s primary purpose” and had made that priority “clear” to the judge, who is nominated by the city manager and appointed by the city council to a two-year term subject to renewal. [Report, at 14.] Even though the city lacks the authority to impose a fine of more than $1,000 for any code violation, the report said, even minor municipal code violations such as parking tickets or failure to remove trash might end up costing individuals even more than that because of the city’s “routine use of arrest warrants to secure collection and compliance when a person misses a required court appearance or payment.” Multiple arrests and jail time, the report said, are not uncommon for minor infractions. [Report, at 42-43.]
The report also said municipal court rules and procedures are “ambiguous, are not written down, and are not transparent or even available to the public on the court’s website or elsewhere.” It’s difficult for people to know what they’re charged with, how much the city wants them to pay, or what their rights are, the report said. And attempts to defend against code violations “are met with retaliatory conduct” on the part of the municipal court, including interruptions from the bench and threats to jail a defense counsel who persisted in arguing his client’s case. [Report, at 43-44.]
Chief Justice Patricia Breckenridge of the Missouri Supreme Court told the audience that she and other members of the court were “ashamed and appalled” when they read the DOJ report. She said the supreme court has now imposed “full scale reform” on the municipal courts, including the adoption of minimum standards for municipal courts that require advising defendants of their rights and court rules, and requiring the chief judges to report twice a year on their courts’ compliance with the standards. Additionally, she said, the court has imposed a mandatory CLE requirement on municipal court judges and has administered training on implicit bias to all judges in the state. (Another program at the conference focused on implicit bias.)
Joy said municipalities often employ part-time judges and part-time prosecutors, many of whom switch roles in neighboring counties. This is a central factor that compromises the integrity of the municipal courts, he said.
When lawyers wear two or even three hats in different municipal courts within a mile radius, it’s not realistic to assume that these lawyers don’t sometimes compromise their clients’ interests when dealing with one another, Joy said.
Joy also said he’s seen instances of lawyers serving as part-time judges in some municipalities and part-time prosecutors in others and advertising on their law firm websites that because of their dual roles they can be very helpful to clients willing to pay them to defend municipal code violations. This, he said, constitutes both “impropriety and the appearance of impropriety. The idea of a fair and impartial judge is compromised when judges can bank on their judicial positions to generate revenue for themselves and their firms.” Breckenridge said the supreme court is taking steps to shut down such advertising.
Joy said states should adopt rules prohibiting part-time municipal prosecutors from representing defendants in other county municipal courts, and part-time municipal judges from prosecuting or defending matters in other county municipal courts. New Jersey, he told the audience, has already adopted such a rule. (See N.J. Sup. Ct. R. 1:15-1(b) and 1:15-3(b); see also N.J. R.P.C. 1.8(k).) “People need to have faith in the criminal justice system.” (Joy’s article, Lawyers Serving as Judges, Prosecutors, and Defense Lawyers at the Same Time: Legal Ethics and Municipal Courts , 51 Wash. U. J.L. & Pol’y 23 (2016), was included in the program materials.)
The panel also criticized the Ferguson prosecutor’s decision to empanel a grand jury, whose proceedings are secret, to hear evidence and determine whether to bring charges against the officer who shot Brown. Panelist Katherine Goldwasser told the audience that grand jury transcripts obtained by DOJ during its investigation showed “an enormous prosecution bias against the indictment” by, for example, leading questions by the prosecutor to the officer that “sent a strong signal to the grand jurors that in the view of the experts—the prosecutors—[the officer] had done nothing wrong.”
The panelists explicitly refrained from opining on the prosecutor’s decision not to charge the officer. But moderator Paula J. Frederick said, “I absolutely understand the decision to use the grand jury. It is cover” to enable the prosecutor to avoid responsibility for the decision not to charge the officer.
Frederick is General Counsel for the State Bar of Georgia. Goldwasser, a former federal prosecutor, recently retired from her position as a law professor at Washington University School of Law.
Goldwasser asked the audience to consider “the conflict of interest that the prosecutor has when deciding whether to bring criminal charges against an officer from the very police department with which the prosecutor works every day and whose goodwill the prosecutor needs to do his job.” To address this issue, an audience member suggested that the ABA amend Model Rule 1.8 by adding a comment stating that for a local prosecutor to be involved in a decision whether to charge a local police officer with a crime is most likely a conflict of interest.
To contact the editor responsible for this story: S. Ethan Bowers at email@example.com
Copyright © 2017 American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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