Maintaining an Ethical Culture

First up on the agenda for The Prosecutorial Ethic (after welcoming remarks from Maureen Howard and John McKay) was:

Patrick J. Fitzgerald, U.S. Attorney, U.S. Attorney's Office, N.D. Ill., E. Div., Chicago, Maintaining an Ethical Culture in a Prosecutor's Office.

A few notes:

Fitzgerald talked about office culture. Just as some sports teams have a reputation for playing rough and bending the rules and some corporations encourage an atmosphere where cheating is OK, so do some prosecutor's offices.

Ethics is not just about being smart or knowing the rules. (Of course, training does have some role and you want people to be aware of the rules.) In hiring, don't look at only academic credentials and skills -- think about the quality of the applicant's character or soul. Does the applicant have a sense of who he or she is?

Think of an attorney alone in the office on a Saturday afternoon before a Monday trial. If the attorney comes across something that could help the defense and should be shared under Brady, you want that person to turn it over, not to think about how inconvenient it would be or how hard it is to get along with the defense attorney or how to talk him- or herself into thinking it's not Brady evidence.

What do you do when someone says that there's been a problem in your office? On the one hand, when a staff person has done nothing wrong, he or she deserves to be backed to the full. But if there is a problem and you have reason not to trust someone, you must take action. The credibility of the whole office suffers if there's someone who can't be trusted.

When a staffer comes to you to report a problem, make sure that your reaction is that this is something you can deal with. Don't have a fit and panic about what it will do to the case -- this tells the employee you don't want to hear about problems. What's at stake is not just the individual case, but the office's integrity, and you want an atmosphere where people know that inconvenient issues that arise will be addressed, not skirted.

Fitzgerald told a story about a case where several people had confessed to a murder they'd had nothing to do with -- one was convinced that it was going to be pinned on him, so he "cooperated" and named his buddies. Then one of the buddies confessed to get a lighter sentence. And so on. Be sure to question people in an antiseptic manner. Don't walk into a room and say: "We know this is what happened, isn't that so?" Prosecutors should get information from witnesses, not give it.

Fitzgerald says investigations are supposed to be confidential. Prosecutors have no business leaking to the press. Everyone in the office reads the paper and will recognize when a leak has come from the office -- and that contributes to an atmosphere where that is seen as OK.

Never say anything to a witness you aren't willing to see on the front page of The New York Times. And -- as he was told when he was in the New York office -- never do anything you aren't willing to explain to a Second Circuit judge.