Judicial Rhetoric and Lawyers' Roles

INTRODUCTION Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers' ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. (1) In contrast, private attorneys have a duty to zealously represent the best interests of their clients, (2) within ethical bounds, but without taking into account broader notions of pursuing a just outcome. In some ways, criminal defense attorneys have a greater license or duty to engage in zealous representation of the interests of their clients, permitting or requiring them to use tactics that are questionable or prohibited for other private attorneys. (3) This Essay considers the rhetoric some judges have used to characterize the respective duties of prosecutors and criminal defense attorneys. The Essay suggests that, although this rhetoric often expresses admirable aspirations and ideals, it improperly blurs the lines between the roles different lawyers play within the adversarial system. Specifically, these judges have used language that would seem to place additional limitations on both the methods prosecutors employ in seeking to obtain just convictions and the tactics criminal defense attorneys employ in zealous advocacy of their clients' interests. This Essay concludes that judges should avoid such rhetoric, which has the potential to undermine basic principles of the American legal system. I. PROSECUTORS A. Maloney and Its Precursors 1. Maloney In a highly publicized and widely praised 2014 decision, United States v. Maloney, (4) the United States Court of Appeals for the Ninth Circuit reversed the defendant's conviction on the basis of the prosecutor's improper summation. The path toward reversal was unusual: after the appellate court initially affirmed the conviction, the court heard an appeal en banc, following which the United States Attorney for the Southern District of California filed a Motion to Summarily Reverse the Conviction, Vacate the Sentence and Remand to the District Court. (5) In addition to concluding that the comments made during closing argument constituted reversible error, the U.S. Attorney informed the court of the office's plans to have attorneys view the video of the argument "as a training tool to reinforce the principle that all Assistant U.S. Attorneys must be aware of the rules pertaining to closing argument and must make every effort to stay well within these rules." (6) In commending the U.S. Attorney, the court cited a segment of one of the most eloquent and well-known statements from the United States Supreme Court regarding the unique role of prosecutors in the American legal system: A prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. (7) The Ninth Circuit also quoted a more contemporary statement, from a 1993 opinion by Judge Alex Kozinski, who joined in the court's opinion in Maloney. "The prosecutor's job isn't just to win, but to win fairly, staying well within the rules." (8) Judge Kozinski's attractive assertion that the prosecutor should "stay[] well within the rules" has been cited in nearly two dozen cases, and not surprisingly--perhaps strategically--the U.S. Attorney in Maloney used this phrase as an indication of the good will the office now exhibits, in acknowledging the wrongfulness of both the summation and its own initial failure to concede error on appeal. …