Ethics in Criminal Advocacy

Ethical issues in criminal justice dominated the news in 2016, in large part because of legal-thriller-like developments in a presidential election more divisive and controversial than any in recent memory. The Democratic candidate, Hillary Clinton, was under investigation by the FBI throughout the campaign for possible criminal violations involving the use of a private email server during her time as Secretary of State. FBI Director James Comey’s unprecedented press conference and other disclosures about the investigation at key junctions during the campaign have raised questions about his own ethical conduct. The Republican candidate and ultimate winner, President Donald Trump, came to the White House with a host of ethical issues of his own. Before his upset victory on November 8, 2016, Trump presided over the Trump Organization, a sprawling real estate empire he values in the billions of dollars, with holdings in many foreign countries. While Trump has turned the running of his business over to his sons, he continues to own it through a trust set up for his “exclusive benefit.” Three days into Trump’s presidency, a group of prominent constitutional scholars, Supreme Court litigators, and former White House ethics lawyers filed a federal lawsuit accusing Trump of violating the constitution. The lawsuit remains pending. This past year also saw major developments in murder cases that became national media sensations in 2015. Adnan Syed, convicted of murdering his former girlfriend in 1995, and Steven Avery and Brendan Dassey, convicted of murdering a young woman in 2007, would be serving out their life sentences in anonymity were it not for the 2015 Serial podcast and 2015 Making a Murderer documentary. These shows, listened to and watched by tens of millions of people, exposed ethical and constitutional violations in Syed, Avery, and Dassey’s cases that attracted the attention of high-powered lawyers who signed on to represent the men post-conviction. In 2016, both Syed and Dassey were granted new trials. Avery’s case remains in active litigation. Using compelling narrative styles that bridged the divide between lay and professional audiences, journalists and filmmakers teamed up with attorneys and defendants to explain breakdowns in the criminal justice system. As a result of these in-depth investigations, all three cases have moved forward in dramatic ways that would have been impossible without the unrelenting glare of media attention and public outcry that continued long after the programs had aired. Also dominating the headlines in 2016 was an ethics scandal that threatened to engulf Pennsylvania’s criminal justice system. It began in 2014, when then-embattled Pennsylvania Attorney General Kathleen Kane released a trove of emails showing that judges, top ranking prosecutors, defense attorneys, police officers and even a state legislator used state servers to exchange a blizzard of shocking racist and misogynistic emails, cartoons, and videos. Known as “Porngate,” the scandal mushroomed: two state Supreme Court justices and several top government officials were forced to resign. But Kane soon found herself under investigation, and by year’s end, she had been convicted of perjury and forced to resign. Porngate, however, lingers on. Most notably, in late 2016, a federal judge granted an evidentiary hearing to an African American defendant who claimed that police coerced her confession with racist and misogynistic threats and taunts. Noting that two of the state judges who denied the request for relief were involved in the Porngate scandal, the federal judge questioned their ability to be fair. This ruling may lead to others, as the Porngate judges and prosecutors presided over tens of thousands of criminal matters. As the national conversation continues, so do real shifts, not only in the way we think about ethical advocacy but in the way in which our profession asks — and sometimes demands — that defense attorneys, prosecutors, and judges adhere to specific ethical rules.