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January 19, 2008

The challenge of teaching dynamic ethics

The front page of many papers today carried the story of Daryl Atkins, whose death sentence was commuted by a Virginia trial judge. Atkins was the petitioner in a 2002 Supreme Court case in which execution of the mentally retarded was barred, but litigtion continued on whether or not he was sufficiently mentally handicapped. Prosecutors continued to press for his execution.

Then, a new issue appeared. Lesley Smith, the attorney for a co-defendant who provided testimony for the government, stepped forward and provided convincing evidence of prosecutorial misconduct.   In short, the government, while interviewing the cooperating co-defendant, had turned off the tape, coached the witness, and failed to tell the prosecution about the incident.

As a former prosecutor who really does believe in both punishment and the incapacitation of proven criminals, this story illustrates once again a fundamental ethical  problem in criminal law: Too many prosecutors are more committed to getting convictions than they are to justice. The underlying problem is the trend to see prosecutors as solely a part of law enforcement, with police as their clients, while part of their true role is to be an objective, deliberative administrative body which acts as a filter between the police and the the courts.  In fact, it is in the service of this true role that prosecutors are afforded so much discretion, creating that much more danger if convictions become the ultimate goal.

I have taught hundreds of students who have or will become Texas prosecutors, and I have struggled with how to teach this important value.  It isn't enough to simply recite the maxim that justice is most important, since that can easily be redefined in the context of a job where no one respects the true meaning of that value.  What I have come around to is using simulations, where the students take on the role of an attorney facing these kinds of dilemmas.  It is time-intensive and sometimes awkward, but I still think it is worth the costs.

What have others tried, within their fields, to teach situational, dynamic ethics?

-- Mark Osler

January 19, 2008 | Permalink


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