Larry Cunningham

The Innocent Prisoner and the Appellate Prosecutor: Some Thoughts on Post-Conviction Prosecutorial Ethics after Dretke V. Haley

We typically think of prosecutorial ethics as encompassing a special set of obligations for prosecutors during the pretrial and trial stages of a criminal case. In the literature and in rules of professional responsibility much attention is paid to the charging function, contact with unrepresented persons, plea negotiations, discovery, and courtroom decorum. Our concern with prosecutorial ethics at these stages is rooted primarily in due process and fairness to the accused. [W]hile he may strike hard blows, the Supreme Court wrote in Berger v. United States, [a prosecutor] is not at liberty to strike foul ones. Whether it is a recognition that the prosecutor acts as a representative of the sovereign or that he or she possesses extraordinary power over peoples lives, we speak about the prosecutors ethical duties as special or additional to those of ordinary lawyers. By preventing a prosecutor from litigating unfairly, the aim is to protect a criminal defendant from an unjust or unwarranted conviction. What, then, are the ethical duties of prosecutors after the defendant has had his fair shot at trial, but lost? The literature and standards are surprisingly silent, with rare exception, on the post-conviction ethics of prosecutors. Constraints on the prosecutorial function seem to reach their apex at trial. Why? Are the reasons for special or additional ethics for prosecutors non-existent on appeal? Is the vast discretion, present at the pretrial and trial stages and thought by some to justify special ethical duties, absent on appeal? As a recent case from Texas illustrates, ethical issues still abound even after a jury returns a verdict of guilty. Nevertheless, the traditional discourse on pre-conviction duties can help us determine how prosecutorial discretion should be exercised after a conviction has been obtained.