1Apr

Plagiarism in Lawyer’s Advocacy: Imposing Discipline for Conduct Prejudicial to the Administration of Justice

Categories: Law Review

By: Douglas E. Abrams*

Introduction

On August 5, 2010, a Kentucky jury convicted Karen Sypher on six counts of extortion, lying to federal investigators, and retaliating against a witness.[1] The federal prosecution stemmed from a one-night sexual encounter between Sypher and University of Louisville men’s basketball coach Rick Pitino at a local restaurant in 2003. At the eight-day trial, prosecutors proved that Sypher demanded $10 million plus a home and a car from the coach in exchange for her silence, falsely accused him of rape when he reported the attempted extortion to authorities, and later lied to the FBI.[2]

By the time Sypher began serving her eighty-seven-month prison sentence in April of 2011,[3] she was not the only member of the defense team who emerged scarred. When District Judge Charles R. Simpson III denied the defendant’s posttrial motions seeking a new trial, the court criticized her lawyer for writing a brief that “appear[ed] to have cobbled much of his statement of the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia web site.”[4] “[S]uch cutting and pasting, without attribution,” warned Judge Simpson, “is plagiarism.”[5]

United States v. Sypher follows other recent decisions that have chastised lawyers for briefs or other written submissions marked by plagiarism, “[t]he deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own.”[6] Some lawyers have copied passages from earlier judicial opinions that rest in the public domain and some lawyers (as in Sypher) have copied passages from private sources that are subject to copyright laws. In either event, courts have labeled lawyers’ plagiarism in court filings as “reprehensible,”[7] “intolerable,”[8] “completely unacceptable,”[9] and “unprofessional.”[10]

Part I of this Article discusses decisions that have found or intimated that counsel’s plagiarism violated Rule 8.4(c) of the American Bar Association (“ABA”) Model Rules of Professional Conduct, which states that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”[11] Perhaps because one or more of Model Rule 8.4(c)’s four proscriptions normally seem such natural fits for plagiarism, courts have not yet explored application of Model Rule 8.4(d), which reaches lawyers who “engage in conduct that is prejudicial to the administration of justice.”[12]

Part II of this Article discusses why lawyers’ plagiarism in written submissions to the court violates Model Rule 8.4(d) as an independent ground for sanction. By its very nature, a lawyer’s plagiarism is prejudicial to the administration of justice because it creates a risk that the court’s written opinion will inadvertently plagiarize. A lawyer’s plagiarism can also distort the argument’s meaning and import by inducing the court to mistake the copied passages as products of the lawyer’s own thought processes rather than as an uncompensated nonparty’s analysis presumably helpful to the proponent. In the adversary system, said former ABA President Whitney North Seymour, the administration of justice “depends heavily on the skill and breadth of the advocacy which [judges] consider in reaching their judgments.”[13]

Grounding professional discipline in violations of both provisions of Model Rule 8.4 would not be redundant, because Model Rule 8.4(c) focuses primarily on the character of the lawyer’s conduct and Model Rule 8.4(d) focuses primarily on the conduct’s detrimental effect on the judicial system. In an appropriate case, invoking both provisions would hold practical significance because “[t]he fact that the lawyer’s misconduct has violated more than one duty may be relevant to the sanction” that the disciplinary commission or the court imposes.[14]

Section 3.0 of the ABA Standards for Imposing Lawyer Sanctions underscores this relevance by reciting four controlling questions in disciplinary proceedings: “(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.”[15] Where a lawyer’s single act of misconduct violates more than one Model Rules provision, it is important to consider “[t]he duty or duties violated . . . to evaluate the harm of the misconduct”[16] to the public, the courts, or the legal system.[17]

I. Model Rule 8.4(c): Dishonesty, Fraud, Deceit, or Misrepresentation

Judicial condemnation of lawyers’ plagiarism in court filings does not exalt technical niceties. The Iowa Supreme Court observed that courts do not “play a ‘gotcha’ game with lawyers who merely fail to use adequate citation methods” but instead target “massive, nearly verbatim copying of a published writing without attribution.”[18] Once massive copying of a public or private source appears, courts have found intentional “dishonesty, fraud, deceit or misrepresentation” in violation of Model Rule 8.4(c).[19]

As government publications, reported federal and state judicial opinions rest in the public domain beyond copyright protection.[20] Public status, however, relieves users only of the obligation to secure permission for republication. Public status does not immunize users from rules and conventions concerning failure to identify or credit the public source in court filings.[21]

This distinction made a difference in United States v. Bowen,[22] where the Court of Appeals for the Sixth Circuit affirmed the defendant’s thirty-year sentence for conspiracy to distribute drugs.[23] The defense counsel’s brief, nearly twenty pages long, was copied almost verbatim from a Massachusetts federal district court opinion that the brief did not cite.[24] “While our legal system stands upon the building blocks of precedent, necessitating some amount of quotation or paraphrasing,” the Court of Appeals concluded, “citation to authority is absolutely required when language is borrowed.”[25]

Where a private author’s work implicates copyright laws, unauthorized reproduction constitutes copyright infringement.[26] The lawyer’s plagiarized submission may initially reach no further than the court and the parties, but the submission remains a public record accessible to others.[27]

In In re Burghoff,[28] for example, seventeen pages of defense counsel’s nineteen-page prehearing brief consisted of verbatim excerpts from an article written by two prominent New York lawyers, available on the Internet.[29] The brief did not acknowledge the article, and defense counsel did little more than delete a few passages from the article, including some that did not support his client’s position. Defense counsel’s posthearing brief also “borrowed heavily” from the article without attribution.[30]

The Burghoff court held that defense counsel’s plagiarism violated Model Rule 8.4(c) as “a form of misrepresentation.”[31] The court ordered counsel to return the fees he charged the client for the two briefs and to complete a professional responsibility course at an accredited law school or by private arrangement with a law professor.[32] On review of the state grievance commission’s findings, the Iowa Supreme Court publicly reprimanded counsel for plagiarism, which the court labeled “misrepresentation, plain and simple,” in violation of Model Rule 8.4(c).[33]

In Kingvision Pay Per View, Ltd. v. Wilson,[34] the plaintiff’s nineteen-paragraph response to a summary judgment motion contained approximately seven paragraphs copied from the multivolume Wright-Miller-Cooper federal civil practice treatise, wholly or partly, without citation or attribution, plus three of the paragraphs’ seven footnotes copied verbatim.[35] The treatise’s multiple volumes dwarfed the misappropriated passages, but the district court nonetheless found plagiarism because, as Judge Learned Hand admonished decades earlier, “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.”[36] Plaintiff’s counsel received a private, informal admonition from the state’s disciplinary authorities.[37]

In a disciplinary proceeding, “[w]hat a lawyer knows may be inferred from the circumstances.”[38] Lawyers caught copying prior sources have not denied knowledge of plagiarism’s general constraints, perhaps because they, like so many lay people, are products of educational systems that roundly condemn plagiarism as “academic malpractice,”[39] “literary theft,”[40] and “perhaps the most serious professional indictment that can be made against an author.”[41] In one decision censuring a lawyer for plagiarism in his LLM thesis submitted to a private university, the Illinois Supreme Court agreed with the disciplinary hearing board, which found it “inconceivable . . . that a person who has completed undergraduate school and law school would not know that representing extensively copied material as one’s own work constitutes plagiarism.”[42]

With lack of knowledge effectively neutralized as a defense to a violation of Model Rule 8.4(c), lawyers’ proffered explanations for plagiarism typically prove unavailing. In Bowen, for example, the Sixth Circuit rejected the lawyer’s explanation that the earlier Massachusetts federal district court decision was only persuasive precedent in the Michigan federal prosecution and that the lawyer “would lose the essence of the argument if he changed even one word.”[43]

Similarly unavailing are excuses that the lawyer succumbed to plagiarism to meet a pressing deadline;[44] concluded that plagiarism would best serve the client’s cause;[45] improperly failed to make greater changes to the misappropriated material;[46] or misappropriated only string citations and not text.[47] In one case, counsel unsuccessfully sought to justify wholesale copying from an earlier judicial opinion because “discussion of law and authority based on prior precedent is almost never the work of an attorney’s own mind, but rather the work of the authoring judges.”[48]

Plagiarism implicating Model Rule 8.4(c) may be the predicate for finding a violation of Model Rule 1.5, which provides that “[a] lawyer shall not make an agreement for, charge, or collect an unreasonable fee . . . .”[49] A fee’s reasonableness depends, among other factors, on “the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly . . . .”[50] Copying a previously published work may diminish or neutralize the lawyer’s assertion of novelty and difficulty, and such copying of a located source normally consumes little time, labor, or skill.

II. Model Rule 8.4(d): Prejudice to the Administration
of Justice

“If our adversary system is to function according to design,” wrote Justice Thurgood Marshall, “we must assume that an attorney will observe his responsibilities to the legal system, as well as to his client.”[51] By upsetting this design, a lawyers’ plagiarism in a submission to the court violates Model Rule 8.4(d) as conduct “prejudicial to the administration of justice . . . .”[52] The lawyer’s plagiarism creates a genuine risk that the court’s written opinion will inadvertently plagiarize, and it also distorts the meaning and import of the lawyer’s adversarial argument on the client’s behalf. Courts, however, have yet to explore advocates’ plagiarism through the Model Rule 8.4(d) lens.

A. The Design of the Adversary System

In the adversary system, said former ABA President Whitney North Seymour, “[e]xperienced judges know and, indeed, many proclaim that the quality of their performance depends heavily on the skill and breadth of the advocacy which they can consider in reaching their judgments.”[53] “The law is made by the Bar, even more than by the Bench,” said then-Judge Oliver Wendell Holmes in 1885.[54] Justice Louis D. Brandeis concurred as he ascended to the Supreme Court bench in 1916: “[A] judge rarely performs his functions adequately unless the case before him is adequately presented.”[55]

The courts’ acknowledged reliance on adversary parties to identify and develop legal issues is nearly as old as the nation itself. The Supreme Court has long held that “[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”[56] This holding serves as a safety valve that relieves courts of any perceived obligation to give precedential effect to questions previously overlooked by the parties and not determined by the court. The holding dates from a majority opinion delivered by Chief Justice John Marshall in 1805.[57] To this day, “[j]udicial decisions do not stand as binding ‘precedent’ for points that were not raised, not argued, and hence not analyzed.”[58]

The central role of the parties’ arguments in the administration of justice is not universal among western legal systems. In the inquisitorial process that marks many European legal systems, the judge investigates cases, calls and questions witnesses, and presents evidence; the parties’ lawyers generally assume subordinate roles, often limited to submitting questions that the judge may ask.[59] Consistent with the inquisitorial process is the European maxim ius curia novit (“the court knows the law”), which suggests that regardless of the content or quality of counsel’s submissions, the court will apply relevant sources of law to the facts determined at trial.[60]

The Court of Appeals for the Fifth Circuit may have exaggerated when it likened judges to “sophisticated uninitiates” when they receive adversary argument.[61] As the Court of Appeals for the Seventh Circuit acknowledges, however, the sheer breadth and intricacy of the American legal fabric mean that the Supreme Court and the lower federal and state courts “rely on lawyers to identify the pertinent facts and law.”[62] American judges are generalists with “limited knowledge of specialized fields,”[63] and the adversary system assumes that the court does not necessarily “know the law” unless the submissions of the parties and amici curiae present the law, together with claims and arguments.

B. Inadvertent Judicial Plagiarism

Judicial reliance on the lawyers’ adversary presentations has immediate consequences for the courts’ opinion writing and thus for the administration of justice. As “an officer of the legal system,”[64] a lawyer submits briefs and other papers with the expectation that the court may incorporate portions of the prevailing party’s argument and analysis in the opinion that accompanies the interlocutory or final decision.[65] Whether or not the opinion cites to the lawyer’s submission, incorporation can be a professional badge of honor for counsel who prevail. “When an attorney writes such an excellent brief that some of its passages make their way into the eventual decision, he experiences a sense of gratification,” said Chief Justice George Rossman of the Oregon Supreme Court more than a half century ago.[66]

The prospect of judicial incorporation means that, unless the judge or law clerk parses the parties’ briefs and other submissions in search of paragraphs or pages of copied work, a plagiarizing lawyer’s “literary theft”[67] can land in the written opinion as the court’s own inadvertent literary theft. Successful parsing is by no means guaranteed because, in the academic arena as elsewhere, much plagiarism goes undetected despite determined efforts to uncover it. Regardless of whether judicial sleuthing for lawyers’ plagiarism actually detects unauthorized copying in any of the hundreds of cases that busy courts consider each year, however, sleuthing would compromise the sound administration of justice by forcing courts to expend time and other finite resources that they could more efficiently spend managing their “pressing dockets” and deciding cases.[68]

The court’s inadvertent incorporation of plagiarized portions of a party’s brief may smack of shortcutting that questions the competence and diligence that the ABAModel Code of Judicial Conduct expects from judges.[69] Where the lawyer plagiarizes an article or other private source, the court’s incorporation may also smack of misappropriating intellectual property and thus may implicate “impropriety and the appearance of impropriety” that the judicial code summons judges to avoid.[70] Inadvertence would remove the basis for judicial discipline but would not necessarily blunt public or professional criticism of the judge, who holds ultimate “responsibility personally to decide the matter” under the judicial code.[71]

The Illinois Supreme Court has held that lawyers’ plagiarism “displays an extreme cynicism towards the property rights of others” and “a lack of honesty,”[72]declaring that “all honest scholars are the real victims.”[73] When lawyers infect the proceeding with plagiarism that may find its way into the court’s opinion, they prejudice the administration of justice because the ABA Model Code of Judicial Conduct summons judges to “aspire at all times to conduct that insures the greatest possible public confidence in their . . . integrity.”[74]

“Judges hold a position of public trust,” concludes Chief Justice John G. Roberts, Jr., “and the public has a right to demand that they adhere to a demanding code of conduct.”[75] At the least, this aspiration and public right contemplate that judges will meet the standards of integrity that Model Rule 8.4 demands from the lawyers who appear before them.

C. Distorting the Adversary Argument

“[T]he judicial process [is] at its best,” wrote Justice Felix Frankfurter, when courts receive “comprehensive briefs and powerful arguments on both sides.”[76] Counsel’s plagiarism compromises the sound administration of justice (and, as Justices Frankfurter and Marshall suggested, may also weaken the client’s cause) by inducing the court to mistake the brief’s copied passages as products of counsel’s own partisan thought processes, rather than as an uncompensated nonparty’s analysis presumably helpful to the proponent. “[C]ases are won on the facts and the law,” said Judge John C. Godbold of the Court of Appeals for the Eleventh Circuit, “not on the eminence, polished writing, oratory, or personality of counsel.”[77]

The three decisions discussed in Part I of this Article demonstrate how undetected plagiarism can distort the meaning and import of the adversary argument that underlies judicial decisionmaking. In Bowen, defense counsel sought to overturn the client’s thirty-year prison sentence with a brief that appeared to reflect counsel’s own unadorned argumentation. Counsel would have reduced the prospect of judicial error by candidly informing the Sixth Circuit panel that the argument rested on the earlier opinion of the Massachusetts federal district court, which held constitutional authority to hear and decide the merits without a personal or professional stake in the outcome.

In Burghoff, counsel would have better served the administration of justice by informing the bankruptcy court that his analysis reflected the presumably disinterested perspectives of two prominent practitioners in a law review article or, at least, by citing the article and inviting the court to consider it for whatever persuasive value the court might ascribe. Similarly, in Kingvision Pay Per View, counsel overlooked the prospect that the court might have deliberated differently if it had known that argumentation came from the iconic multivolume Wright-Miller-Cooper federal civil practice treatise and not from counsel’s own prose created on retainer.

Conclusion

Reported decisions calling attention to lawyers’ plagiarism were rare before 2000.[78] Plagiarism today, however, imposes professional embarrassment when the list of counsels’ appearances or the court’s opinion itself identifies the lawyer whose “literary theft”[79] fits so naturally within Model Rule 8.4(c)’s recitation of “conduct involving dishonesty, fraud, deceit or misrepresentation.”[80] Even where the court does not recommend a sanction for a violation,[81] being labeled a plagiarist in the bound reporter or on electronic retrieval is a serious setback for a lawyer, whose reputation for integrity is a core personal asset.[82]

Lawyers’ plagiarism also violates Model Rule 8.4(d) as “conduct that is prejudicial to the administration of justice.”[83] Not only does this plagiarism create a genuine risk of inadvertent plagiarism by the court; it also distorts the meaning and import of the adversarial argument that underlies reasoned decisionmaking.

“The process of deciding cases on appeal,” wrote Chief Justice Arthur T. Vanderbilt of the New Jersey Supreme Court, “involves the joint efforts of the counsel and the court.”[84] He continues: “It is only when each branch of the profession performs its function properly that justice can be administered to the satisfaction of both the litigants and society and a body of decisions developed that will be a credit to the bar, the courts and the state.”[85] The joint efforts that Chief Justice Vanderbilt pinpointed underscore the role of Model Rule 8.4(d)’s specialized mandate when lawyers plagiarize in written submissions to the court.

* Associate Professor, University of Missouri. B.A. 1973, Wesleyan University; J.D. 1976, Columbia University School of Law. Thank you to my colleague, Professor Ray Phillips, for his perceptive comments.

[1]. United States v. Sypher, No. 3:09-CR-00085, 2011 WL 579156, at *1 (W.D. Ky. Feb. 9, 2011), aff’d, 684 F.3d 622, 628–29 (6th Cir. 2012) (affirming the denial of the defendant’s recusal motion because the trial judge’s statements about counsel’s plagiarism did not establish bias).

[2]. See, e.g., Brett Barrouquere & Will Graves, Pitino Accuser Is Found Guilty; Sypher Convicted in Extortion Trial, Bos. Globe, Aug. 6, 2010 (Sports), at 6; Andrew Wolfson & Jason Riley, Sypher Found Guilty on All Six Counts, Courier-Journal (Louisville, Ky.), Aug. 6, 2010, at A1.

[3]. Jason Riley, Sypher Again Asks to Stay Free While Fighting Conviction, Courier-Journal (Louisville, Ky.), Apr. 5, 2011, at B1.

[4]. Sypher, 2011 WL 579156, at *3 n.4.

[5]. Id.

[6]. Black’s Law Dictionary 1267 (9th ed. 2009).

[7]. Velez v. Alvarado, 145 F. Supp. 2d 146, 160 (D.P.R. 2001).

[8]. Id. at 161.

[9]. United States v. Bowen, 194 F. App’x 393, 402 n.3 (6th Cir. 2006), postconviction relief denied, Hall v. United States, No. 1:08-CV-482, 2008 WL 2696832 (W.D. Mich. July 1, 2008); State Farm Fire & Cas. Co. v. Harris, No. 3:11-36-DCR, 2012 WL 896253, at *1 n.3 (E.D. Ky. Mar. 15, 2012) (citing Bowen, 194 F. App’x at 402 n.3); see also Venesevich v. Leonard, No. 1:07-CV-2118, 2008 WL 5340162, at *2 n.2 (M.D. Pa. Dec. 19, 2008) (noting that attorney plagiarism is “unacceptable behavior”), appeal dismissed, 378 F. App’x 129 (3d Cir. 2010) (dismissing appeal for lack of jurisdiction).

[10]. Vasquez v. City of Jersey City, No. 03-CV-5369 (JLL), 2006 WL 1098171, at *1 n.4 (D.N.J. Mar. 31, 2006).

[11]. Model Rules of Prof’l Conduct R. 8.4(c) (2011). In addition to Sypher, see, e.g., Venesevich, 2008 WL 5340162, at *2 n.2 (“[P]lagiarism violates the prohibition that state ethics codes place on misrepresentation and deceit.”); Kingvision Pay Per View, Ltd. v. Wilson, 83 F. Supp. 2d 914, 916 n.4 (W.D. Tenn. 2000) (finding that plagiarism “may violate” state rules of professional conduct); In re Burghoff, 374 B.R. 681, 684–85 (Bankr. N.D. Iowa 2007) (finding that plagiarism is “a form of misrepresentation”); Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Lane, 642 N.W.2d 296, 299 (Iowa 2002) (“This plagiarism constituted, among other things, a misrepresentation to the court.”); cf. In re Zbiegien, 433 N.W.2d 871, 875 (Minn. 1988) (finding that academic plagiarism while in law school “does involve an element of deceit”).

[12]. Model Rules of Prof’l Conduct R. 8.4(d) (2011).

[13]. Whitney North Seymour Sr., Foreword to Edward D. Re & Joseph R. Re, Brief Writing & Oral Argument, at iii (7th ed. 1993).

[14]. In re Eugster, 209 P.3d 435, 447 (Wash. 2009); see also, e.g., Iowa Supreme Court Att’y Disciplinary Bd. v. Netti, 797 N.W.2d 592, 607 (Iowa 2011) (ruling that “[i]n light of the multiple violations” a lawyer’s “suspension of two years is warranted in this case”).

[15]. Standards for Imposing Lawyer Sanctions § 3.0 (1992).

[16]. Eugster, 209 P.3d at 447.

[17]. E.g., In re Coleman, 793 N.W.2d 296, 308 (Minn. 2011) (quoting In re Plummer, 725 N.W.2d 96, 98 (Minn. 2006) (“The purpose of discipline for professional misconduct is not to punish the attorney, but rather to protect the public, to protect the judicial system, and to deter future misconduct . . . .”); In re Voss, 795 N.W.2d 415, 422 (Wis. 2011) (discussing “the need to protect the public, courts, and legal system from repetition of misconduct and to deter attorneys from engaging in similar misconduct”).

[18]. Iowa Supreme Court Att’y Disciplinary Bd. v. Cannon, 789 N.W.2d 756, 759 (Iowa 2010).

[19]. Id. at 758.

[20]. Paul Goldstein, Goldstein on Copyright § 2.5.2, at 2:50.1 (3d ed. 2012).

[21]. Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox 8 (rev. ed. 2003) (“Plagiarism occurs when someone . . . falsely claims someone else’s words, whether copyrighted or not, as his own.”).

[22]. 194 F. App’x 393 (6th Cir. 2006), postconviction relief denied, Hall v. United States, No. 1:08-CV-482, 2008 WL 2696832 (W.D. Mich. July 1, 2008).

[23]. Id. at 395.

[24]. Id. at 402 n.3.

[25]. Id.; see also, e.g., United States v. Lavanture, 74 F. App’x 221, 223 n.2 (3d Cir. 2003) (“[I]t is certainly misleading and quite possibly plagiarism to quote at length a judicial opinion (or, for that matter, any source) without clear attribution.”); United States v. Jackson, 64 F.3d 1213, 1219 n.2 (8th Cir. 1995) (expressing “disapproval of a style of brief-writing that appropriates both arguments and language [from a prior judicial opinion] without acknowledging their source”); A.L. v. Chi. Pub. Sch. Dist. # 299, No. 10 C 494, 2012 WL 3028337, at *6 (N.D. Ill. July 24, 2012) (reducing plaintiff counsel’s attorney’s fee request by ninety percent because large portions of counsel’s briefs were lifted, without attribution, from prior decisions of the court); Venesevich v. Leonard, No. 1:07-CV-2118, 2008 WL 5340162, at *2 n.2 (M.D. Pa. Dec. 19, 2008) (noting that without reference or citation, plaintiff counsel’s reply brief quoted verbatim a section of a prior decision of the court), appeal dismissed, 378 F. App’x 129 (3d Cir. 2010) (dismissing appeal for lack of jurisdiction); Denton v. Rievley, No. 1:07-CV-211, 2008 WL 4899526, at *2 n.2 (E.D. Tenn. Nov. 12, 2008), aff’d, 353 F. App’x 1 (6th Cir. 2009) (noting that about eight pages of defense counsel’s memorandum appeared to be taken almost verbatim from an earlier decision of the court); Vasquez v. City of Jersey City, No. 03-CV-5369 (JLL), 2006 WL 1098171, at *1 n.4 (D.N.J. Mar. 31, 2006) (discussing counsel’s plagiarism); Velez v. Alvarado, 145 F. Supp. 2d 146, 160 (D.P.R. 2001) (finding that about sixty-six percent of the plaintiff’s brief was averbatim reproduction of the earlier decision).

[26]. Goldstein, supra note 21.

[27]. See, e.g., Bos. Prop. Exch. Transfer Co. v. Iantosca, 686 F. Supp. 2d 138, 142 (D. Mass. 2010) (discussing “matters of public record, such as prior litigation documents”); Peviani v. Hostess Brands, Inc., 750 F. Supp. 2d 1111, 1116 (C.D. Cal. 2010) (quoting C.B. v. Sonora Sch. Dist., 691 F. Supp. 2d 1123, 1138 (E.D. Cal. 2009)) (discussing “public record[s], including . . . court records available . . . via the internet”).

[28]. 374 B.R. 681 (Bankr. N.D. Iowa 2007).

[29]. Id. at 683.

[30]. Id. at 683–84.

[31]. Id. at 684–85.

[32]. Id. at 687.

[33]. Iowa Supreme Court Att’y Disciplinary Bd. v. Cannon, 789 N.W.2d 756, 760 (Iowa 2010) (finding that the lawyer, who had already returned the fee in compliance with the bankruptcy court order, did not violate Model Rule 1.5).

[34]. 83 F. Supp. 2d 914 (W.D. Tenn. 2000).

[35]. Id. at 916 n.4. See generally 19 Charles Alan Wright et al., Federal Practice and Procedure § 4519 (2d ed. 1996).

[36]. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936) (finding infringement of the plaintiff’s copyrighted play).

[37]. Threadgill v. Bd. of Prof’l Responsibility, 299 S.W.3d 792, 796 (Tenn. 2009), overruled on other grounds by Lockett v. Bd. of Prof’l Responsibility, No. E2011-01170-SC-R3-BP, 2012 WL 2550586 (Tenn. July 3, 2012).

[38]. Restatement (Third) of the Law Governing Lawyers § 5 cmt. d (1998).

[39]. Univ. of Manchester, Guidance to Students on Plagiarism and Other Forms of Academic Malpractice 1 (2008), available athttp://documents.manchester.ac.uk/DocuInfo.aspx?DocID=2870.

[40]. Webster’s New Collegiate Dictionary 898 (9th ed. 1983).

[41]. Cornwell v. Sachs, 99 F. Supp. 2d 695, 708 (E.D. Va. 2000).

[42]. In re Lamberis, 443 N.E.2d 549, 551 (Ill. 1982).

[43]. United States v. Bowen, 194 F. App’x 393, 402 n.3 (6th Cir. 2006).

[44]. Iowa Supreme Court Att’y Disciplinary Bd. v. Cannon, 789 N.W.2d 756, 758 (Iowa 2010).

[45]. Columbus Bar Ass’n v. Farmer, 855 N.E.2d 462, 467–68 (Ohio 2006).

[46]. In re Burghoff, 374 B.R. 681, 685 (Bankr. N.D. Iowa 2007).

[47]. Id.

[48]. Denton v. Rievley, No. 1:07-CV-211, 2008 WL 4899526, at *2 n.2 (E.D. Tenn. Nov. 12, 2008).

[49]. Model Rules of Prof’l Conduct R. 1.5(a) (2011); see also In re Ayeni, 822 A.2d 420, 421–22 (D.C. 2003) (disbarring defense counsel for, among other things, submitting a voucher for nineteen hours of work on a brief that was “virtually identical to the brief filed earlier by his client’s co-defendant”); Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Lane, 642 N.W.2d 296, 299–301 (Iowa 2002) (finding a violation because the lawyer requested $200 per hour for eighty hours of work on a plagiarized brief that “d[id] not reveal any independent labor or thought in the legal argument”).

[50]. Model Rules of Prof’l Conduct R. 1.5(a)(1) (2011); see also A.L. v. Chi. Pub. Sch. Dist. # 299, No. 10 C 494, 2012 WL 3028337, at *6 (N.D. Ill. July 24, 2012) (reducing plaintiff counsel’s attorney’s fee request by ninety percent because large portions of counsel’s briefs were lifted, without attribution, from prior decisions of the court); Restatement (Third) of the Law Governing Lawyers § 34 (2000) (discussing “Reasonable and Lawful Fees” an attorney may charge).

[51]. Geders v. United States, 425 U.S. 80, 93 (1976) (Marshall, J., concurring).

[52]. Model Rules of Prof’l Conduct R. 8.4(d) (2011).

[53]. Seymour, supra note 13.

[54]. Oliver Wendell Holmes, The Law, in Speeches by Oliver Wendell Holmes 16, 16 (1896) (speech delivered Feb. 5, 1885), available at http://ia700408.us.archive.org/30/items/cu31924014419547/cu31924014419547.pdf.

[55]. Louis D. Brandeis, The Living Law, 10 Ill. L. Rev. 461, 470 (1916); see also, e.g., Walter V. Schaefer, The Advocate as a Lawmaker: The Advocate in the Reviewing Courts, in Classic Essays on Legal Advocacy 420, 420 (George Rossman ed., 2009) (“[R]eviewing courts make law; and . . . advocates have a part in the lawmaking process.”).

[56]. Webster v. Fall, 266 U.S. 507, 511 (1925).

[57]. See United States v. More, 7 U.S. (3 Cranch) 159, 172 (1805) (“No question was made, in that case, as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case.”).

[58]. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 557 (2001) (Scalia, J., dissenting).

[59]. See, e.g., Roberta K. Flowers, An Unholy Alliance: The Ex Parte Relationship Between the Judge and the Prosecutor, 79 Neb. L. Rev. 251, 264–65 (2000).

[60]. See, e.g., C.H. van Rhee, Introduction to European Traditions in Civil Procedure 185, 190 (C.H. van Rhee ed., 2005); see also P. Oberhammer & T. Domej,Germany, Switzerland, and Austria, in European Traditions in Civil Procedure 295, 303 (C.H. van Rhee ed., 2005).

[61]. Dall. Typographical Union, No. 173 v. A.H. Belo Corp., 372 F.2d 577, 579 (5th Cir. 1967).

[62]. In re Cont’l Cas. Co., 29 F.3d 292, 295 (7th Cir. 1994).

[63]. Ind. Lumbermens Mut. Ins. Co. v. Reinsurance Results, Inc., 513 F.3d 652, 658 (7th Cir. 2008).

[64]. Model Rules of Prof’l Conduct pmbl. ¶ 1 (2011); see also, e.g., Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975) (“[L]awyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the courts.’”); Norelus v. Denny’s, Inc., 628 F.3d 1270, 1308 (11th Cir. 2010) (“[E]very lawyer serves, not only as an advocate, but as an officer of the court.”).

[65]. See, e.g., Herbert F. Goodrich, A Case on Appeal—A Judge’s View, in Classic Essays, supra note 55, at 517 (“[S]ome judges lift a portion of the successful party’s brief and incorporate it into the opinion of the court.”).

[66]. George Rossman, Appellate Practice and Advocacy, 34 Or. L. Rev. 73, 73 (1955).

[67]. Webster’s New Collegiate Dictionary 898 (9th ed. 1983).

[68]. John G. Roberts, Jr., Chief Justice’s 2010 Year-End Report on the Federal Judiciary 4 (2010), available at http://www.supremecourt.gov
/publicinfo/year-end/2010year-endreport.pdf (discussing the federal courts’ “pressing dockets” and efforts to produce “cost savings, improved efficiency, and reduce[] backlogs”).

[69]. Model Code of Judicial Conduct R. 2.5 (2010).

[70]. Id. at R. 1.2.

[71]. Id. at R. 2.9(A)(3).

[72]. In re Lamberis, 443 N.E.2d 549, 551–52 (Ill. 1982).

[73]. Id. at 552.

[74]. Model Code of Judicial Conduct pmbl. ¶ 2 (2010).

[75]. John G. Roberts, Jr., Chief Justice’s 2007 Year-End Report on the Federal Judiciary 5 (2007), available at http://www.supremecourt.gov
/publicinfo/year-end/2007year-endreport.pdf.

[76]. Adamson v. California, 332 U.S. 46, 59 (1947) (Frankfurter, J., concurring).

[77]. John C. Godbold, Twenty Pages and Twenty Minutes—Effective Advocacy on Appeal, 30 Sw. L.J. 801, 808 (1976).

[78]. See, e.g., In re Hinden, 654 A.2d 864, 865 (D.C. 1995) (noting that a lawyer was publicly censured for plagiarism in an article he wrote); Lamberis, 443 N.E.2d at 550, 553 (censuring a lawyer for plagiarism in the LLM thesis he submitted to a law school); Frith v. State, 325 N.E.2d 186, 188 (Ind. 1975) (finding that about fourteen pages of defense counsel’s brief were copied without quotation marks, indentation, or citation from a volume of American Law Reports (ALR) 3d).

[79]. Webster’s New Collegiate Dictionary 898 (9th ed. 1983).

[80]. Model Rules of Prof’l Conduct R. 8.4(c) (2011).

[81]. See, e.g., State Farm Fire & Cas. Co. v. Harris, No. 3:11-36-DCR, 2012 WL 896253, at *1 (E.D. Ky. Mar. 15, 2012) (noting that defense counsel’s argument “is easily summarized, as all but six sentences (out of seven pages) are lifted—without attribution—directly from” a recent decision of the court); id. at *1 n.3 (“It should go without saying that such plagiarism is ‘completely unacceptable.’”).

[82]. See, e.g., Harlyn Sales Corp. Profit Sharing Plan v. Kemper Fin. Servs., 9 F.3d 1263, 1269 (7th Cir. 1993) (“A lawyer’s reputation for integrity, thoroughness and competence is his or her bread and butter.”); People ex rel. Karlin v. Culkin, 162 N.E. 487, 492 (N.Y. 1928) (finding by Chief Judge Cardozo, that a lawyer’s reputation “is a plant of tender growth, and its bloom, once lost, is not easily restored”); Stephen P. Younger, Reflections on the Life and Work of the Honorable Hugh R. Jones, 65 Alb. L. Rev. 13, 13 (2001) (quoting Judge Jones of the New York Court of Appeals, who stated that “a lawyer’s reputation is his principal asset”).

[83]. Model Rules of Prof’l Conduct R. 8.4(d) (2011).

[84]. In re Greenberg, 104 A.2d 46, 49 (N.J. 1954).

[85]. Id.

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Tags: Plagiarism Professional Conduct

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5Sep

The Community Prosecutor: Questions of Professional Discretion

Categories: Law Review

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By: Bruce A. Green* & Alafair S. Burke**

This Article examines community prosecuting from an ethics perspective. Our focus is not on prosecutors’ compliance with the disciplinary rules, however. The strategies that have been said to exemplify community prosecuting are almost invariably compliant with disciplinary rules and other aspects of the law governing prosecutors. Rather, we take a broader perspective. Our focus is on how prosecutors exercise discretion in the context of adopting community prosecution strategies. We examine this question from both normative and procedural perspectives. We propose that the addition of community-based defense lawyers could help mitigate concerns about prosecutorial discretion in community justice programs by broadening community participation and helping inform the community about an array of potential solutions and their implications.

I. Background

A quick Google search for the term “community prosecution” yields nearly twenty-five million hits, including descriptions of community prosecution units in county after county across the nation. What began as a small effort in Manhattan in 1985 was implemented more actively in Portland and Seattle in 1990 and 1991, respectively, and community prosecution soon became a national trend as more jurisdictions found ways to implement its principles.[1] By 2003, the American Prosecutors Research Institute (“APRI”) estimated that nearly half of all prosecutors’ offices engaged in activities that constituted community prosecution.[2] Generous federal grant funding supported the efforts.[3]

Despite the prevalence and popularity of community prosecution, its definition still remains hazy.[4] Perhaps the one point of agreement is that community prosecutors have implemented the lessons of community policing into a prosecution model.[5] Accordingly, the starting point for understanding the current state of community prosecution, and contrasting it with traditional prosecution models, is an understanding of community policing and the distinction between it and traditional policing.

A. Outgrowth of Community Policing

Traditional policing in the last half of the twentieth century[6] was marked by a reactive, rapid-response model of policing.[7] In reactive policing, it is a crime’s occurrence that triggers police involvement. Police then investigate, seeking to identify the perpetrator and to gather evidence with an eye toward prosecuting and punishing the offender. When law enforcement focuses on reactive case creation, each law enforcement actor plays a separate role—police investigate after a crime has occurred, prosecutors join in after an arrest to represent the government in adjudication, and corrections officers step in post-conviction.[8] Police interaction with the community is minimal as law enforcement looks to citizens only for their assistance as victims and witnesses to help identify and prosecute offenders.[9]

Community policing emerged in the late 1970s and started to gain momentum in the 1980s.[10] It was one of law enforcement’s institutional responses to “[s]kyrocketing crime rates, riots, accusations of racism and brutality, corruption, inefficiency,” and the public’s general lack of faith in the police and the government as a whole in the 1960s and 1970s.[11] It rose in popularity in the 1990s with governments’ renewed emphasis on revitalization of cities and reduction of crime.[12] The “bandwagon”[13] grew so quickly[14] that it became “ubiquitous.”[15]

In contrast to traditional policing, community policing looks to the community, not just as witnesses and victims, but as stakeholders who help shape law enforcement’s priorities and design and implement solutions.[16] The literature on community policing identifies three other defining characteristics, but each of these can be seen as stemming from the defining hallmark of community input. First, when community members are permitted to shape law enforcement priorities and programs, it is not surprising that community police officers hear different community concerns in different neighborhoods. One neighborhood might be plagued by street-level drug dealing, another by prostitution, and another by noise caused by kids skateboarding at midnight. Accordingly, community policing, unlike rapid-response policing, tends to adopt strategies by intrajurisdictional, geographic distinctions, rather than adopting a monolithic approach to the entire jurisdiction.[17]

Second, unlike traditional policing that prioritizes investigation of serious offenses over minor ones, community-based policing tends to focus on relatively “low-level, quality-of-life” problems.[18] This is because, in at least some neighborhoods, community members’ biggest complaints are about relatively minor offenses such as graffiti, trespassing, public intoxication, and other forms of disorder. Advocates of aggressive enforcement of relatively minor crimes often invoke George Kelling and James Wilson’s influential “broken windows” theory, which posits that one broken window is a sign of general lawlessness, leading to another and then others.[19] The appearance of disorder deters law-abiding residents from exerting control over their neighborhoods while validating the conduct of lawbreakers.[20] In contrast, the theory goes, police enforcement of positive social norms will empower law-abiding residents in their own communities and send a message to the lawless that they are unwelcome.[21]

Finally, because community-based police officers are called on to respond to low-level but common and chronic problems, the traditional, reactive approach of investigation, arrest, and prosecution is untenable.[22] Instead, community policing employs Herman Goldstein’s recommended approach of proactive policing, seeking to develop long-term, preventative, programmatic responses to recurring quality-of-life problems.[23] In this form of policing, arrest and prosecution are used only as a means to an end, not for purposes of punishment.[24]

In a model of law enforcement in which prosecution is only a means to an end, what is “community prosecution”? Prosecutors use the term in different and, at times, contradictory ways. The vague concept may be thought to refer to a philosophy, a strategy, or both.[25] The concept’s list of “commonly cited operational elements,” such as prioritization of “problem-solving” and quality-of-life issues, partnerships with community, geographic focus, and integration of “proactive strategies,” clearly shares ground with community policing principles.[26] At the same time, however, the community prosecution concept clearly extends—at least for some—well past the hallmark characteristics that initially defined community policing. Although some identify community prosecuting exclusively or primarily with responses to quality-of-life crimes,[27] others use it equally to describe nontraditional responses to serious crimes such as drug trafficking and gang violence.[28] Although some assume that community prosecuting exclusively or primarily involves “proactive” strategies,[29] others identify the concept with a combination of reactive and proactive strategies.[30] In fact, as the pliant term has come to be used, community prosecuting is not necessarily about either community or prosecuting. Community prosecuting strategies do not necessarily target particular communities[31]—although they typically do[32]—and many of these strategies do not include prosecuting criminal offenders.[33]

B. Contrast with Traditional Prosecution

Community prosecuting, regardless of how it is defined, is viewed as a departure from how prosecutors traditionally think about and conduct their work.[34] Despite the prevalence of guilty pleas, most prosecutors imagine themselves as trial lawyers whose work is centered at the courthouse.[35] They focus attention on whether a particular crime was committed, by whom, and what should be done about it through the use of the criminal process, not on broader social problems and how to solve them by employing the full arsenal of government powers. Their work is reactive, commenced in response to crimes and police investigations. In the investigative stage, prosecutors’ work is most often in support of, and ancillary to, that of the police and other investigators. They secure search warrants, wiretap authorizations, arrest warrants, or other court orders, or obtain documents and evidence with the aid of the grand jury. In the prosecution stage, prosecutors decide whether to file criminal charges or offer an alternative disposition. They negotiate conditions of guilty pleas and serve as the state’s counsel at trial. The traditional role involves employing prosecutorial power to achieve criminal justice objectives: incapacitating criminals (i.e., “putting away bad guys”) and deterring future crimes while protecting and avoiding harm to the innocent. This necessitates the exercise of discretion,[36] sometimes on an ad hoc basis and sometimes based on preestablished office policy. Discretionary decisions may draw on a host of factors relating to criminal justice—such as the seriousness of the offense, the dangerousness of the offender, the strength of the evidence, and the availability of resources—and are essentially immune from judicial review.[37]

Community prosecuting takes prosecutors out of the courthouse and into the community and casts them in a more proactive role. Community prosecutors typically work with members of the community to identify recurring, ongoing criminal justice problems (drug dealing, graffiti, vagrancy) and then work in tandem with community representatives and agencies to address these problems through a project, policy, or strategy, often involving nontraditional methods.[38] Some community prosecuting activities engage prosecutors in such extralegal pursuits as community education;[39] others involve responses to criminal conduct, including, but not exclusively, quality-of-life crimes and other low-level crimes, through mechanisms aside from arrest and prosecution;[40] and still other examples involve the use of criminal justice authority in ways that exploit information from, or relationships with, the community.[41]

While a prosecutor’s office may include one or more lawyers who are designated as community prosecutors, this work supplements the ordinary work of a prosecutor’s office.[42] Many prosecutors’ offices do not consciously engage in community prosecuting at all, and as far as we know, none engage exclusively in community prosecuting.[43] The first order of priority for prosecutors’ offices is the bread-and-butter work of processing, investigating, and prosecuting felony cases, or what Portland, Oregon prosecutor Michael Schrunk calls “taking care of business,” by which he means prosecuting murderers, rapists, and other serious criminals.[44] This engages much or most of an office’s time and resources. Community prosecuting is, in most cases, an add-on—indeed, one that may be eliminated if funding is reduced. Thus, community prosecuting does not involve a rejection of the traditional role and responsibilities so much as an expansion of them.

The activities said to comprise community prosecuting seem to reflect a broader philosophy of prosecuting than the traditional one. Community prosecuting enlarges the prosecutor’s role, emphasizing and calling attention to the prosecutor’s status as a public official, as opposed to merely a courtroom lawyer or advocate for the state in criminal adjudication. The community prosecutor is more like the mayor than the public’s criminal trial lawyer. Community prosecuting takes the prosecutor not only outside the courthouse but outside the conventional “administrative” role of processing individual cases.[45] The prosecutor’s object of concern goes beyond criminal justice. The prosecutor may deal with vagrancy, drawing graffiti on private and public property, and drug use not as criminal problems but as social issues, as might officials of departments of homelessness, sanitation, and public health. This typically requires the adoption of proactive policies as distinguished from ad hoc reactions to individual cases.

Even when serving a decidedly lawyerly role, community prosecutors try to develop “integrated, solutions-based” approaches to crime.[46] For example, community prosecutors might work to draft and implement ordinances to authorize police to engage in earlier, more discretionary intervention in quality-of-life crimes and general disorder.[47] Portland’s celebrated community prosecution unit, for instance, responded to neighborhood complaints about high concentrations of drug offenses with a “drug-free zone” ordinance that permitted police officers to banish suspected offenders from the targeted safety zone.[48] Offenders who violated the order of exclusion were subject to arrest for criminal trespass.[49] In the name of community, laws have also been passed to regulate sitting or lying on sidewalks,[50] sleeping and eating in parks,[51] panhandling,[52] and juvenile curfews.[53] Community prosecutors may then be called upon to process the cases that arise from the new policing, often with alternative approaches, such as community-based courts.[54]

Prosecutors are traditionally independent of, if not isolated from, public officials and agencies other than criminal law enforcement agencies, such as the police, and are equally removed from the public.[55] Community prosecuting implies less autonomy and more interaction with other officials and public representatives in order to deal with criminal and social problems in a more comprehensive manner.[56] Collaboration with other public agencies may be useful either because the prosecutor is willing to employ prosecutorial powers toward noncriminal objectives or because the prosecutor seeks to commandeer noncriminal powers to prevent or deter crime or achieve other criminal justice objectives. Interaction with the community may both assist the prosecution in identifying problems and provide an ally in the prosecution’s efforts to deter, investigate, or prosecute criminal activity.

Community prosecuting also implies both a less abstract idea of public accountability and greater transparency. Traditional prosecutors, like judges, expect to work in accordance with professional expectations, not particular public expectations; in fact, they often stand as buffers against the popular hue and cry. Prosecutors may announce arrests, indictments, and convictions, but they traditionally do not publicly justify discretionary decisions or publicly announce and explain their internal policies.[57] The community prosecutor, however, is accountable in a more concrete, geographically confined sense, and is more open, since the success of community prosecuting strategies often depends on publicizing them and obtaining the community’s support for them. Normatively, community prosecuting implies that community representatives’ perceived interests deserve consideration, whether in the development of prosecutorial policies or in the ad hoc exercise of discretion in individual cases, and that the relevant normative expectations are not exclusively those implicit in legislation, in the history of the office, or in the prosecutor’s own professional philosophy.

II. Prosecutorial Discretion and Community Prosecuting

When it comes to exercising discretion in the course of prosecutors’ traditional work, conventional understandings or principles have developed over time.[58] Rooted in the objectives of the criminal justice process, these understandings are broadly, if not universally, shared, and are communicated in various ways within prosecutors’ offices and among prosecutors of different offices. These understandings do not dictate particular outcomes in particular cases, but do channel prosecutors’ decision making and provide benchmarks against which the public can judge prosecutors’ actions. Community prosecution strategies may be inconsistent with ordinary principles regarding how prosecutors should employ their discretion, and the departures may not be sufficiently justified by the social utility of these strategies. We explore these concerns in the context of a story that is loosely drawn from a twenty-year-old Pennsylvania state court decision.[59] We offer the story to suggest both how the insights of community prosecuting may broaden decision making in prosecutors’ traditional work and how community prosecuting may lead to unjustified departures from traditional principles of prosecutorial discretion.

The story is set in Delaware County in the southeast corner of Pennsylvania in the late 1980s. As it remains today, the county was mostly rural and mostly white, except for the City of Chester, which was working class and populated mostly by people of color, most of whom were black. The story is of a simple drug deal, like those that occurred many times daily in Chester and other cities throughout the United States.

One evening, three coworkers at a local manufacturing company decided to try to purchase some cocaine. They were recreational drug users and had never before been arrested. They knew of a place in Chester near a bar where drugs could be bought quickly and easily. The police knew the spot, too, but it was poorly lit, and drug sellers could get away by dashing into the bar or into an apartment above it if they were spotted. The three white men in a Toyota were noticeable in a neighborhood comprised primarily of racial minorities and attracted the attention of plain-clothed surveillance officers sitting in unmarked police cars who knew that there was no commerce in the area and no reason for the men to be there except to buy drugs. The officers observed two black men approach the car and complete what appeared to be a drug sale, then followed the Toyota back to the company parking lot, where the officers arrested the three men and retrieved two plastic bags of cocaine from the floor of the car. One of the men claimed both bags were his.

The police brought the case to the Delaware County prosecutor, who then had to decide whether to bring charges and whether to offer the three men some kind of deal. There were various options. The men might be charged with purchasing drugs, conspiring to purchase drugs, and/or drug possession. The prosecutor could choose not to file any charges, to file only certain of the possible charges, or to offer to defer bringing charges for a period of time, during which the men would be required to avoid any further drug use or other criminal conduct. Another possibility was to offer the men admission into the state’s Accelerated Rehabilitative Disposition (“ARD”) program for which first offenders with low-level drug offenses were eligible if they would benefit from drug rehabilitation.[60] Those who successfully completed the program avoided a criminal record.[61]

The traditional prosecutor would make the charging and plea bargaining decisions based on a number of considerations, which may or may not be codified in internal office policy. Among these would be whether, based on the evidence, the prosecutor thought that the defendants were guilty of a crime and, if so, whether a crime could be proven beyond a reasonable doubt if the case went to trial.[62] One conventional understanding is that prosecutors should not bring charges unless they are personally convinced of the defendants’ guilt—although there is no consensus on the requisite level of conviction.[63] Another is that prosecutors should not initiate or continue charges unless there is some possibility or likelihood of securing a conviction—although there is no consensus on how likely.[64] Beyond that, prosecutors may offer more lenient resolutions in cases where they are worried about the ability to win at trial.

Other considerations relate to whether particular punishment would fit the crime and whether the ends of the criminal process can be adequately served without a conviction or imprisonment. Is incapacitation needed to keep the public safe or to deter future lawbreakers, or are there less harsh ways to prevent the offender and others from committing future crimes? Prosecutors generally agree that not all offenders should be prosecuted and that offenders should be treated in proportion to the magnitude of their wrongdoing and their dangerousness.[65] For example, prosecutors typically treat murderers more harshly than shoplifters, treat willful and venal offenders more harshly than negligent offenders, and treat repeat offenders more harshly than one-time offenders.[66] Another commonly held principle is that similarly situated offenders should be treated similarly, and not treated more or less harshly because of irrelevant considerations.[67] Given two men who committed the same crime, have the same criminal history, and have all other relevant characteristics and attributes in common, it would ordinarily be regarded as an abuse of discretion to charge one but not the other for no reason or based on an irrelevant reason, such as that they have different lawyers or that one is better connected.[68] On the other hand, relevant distinctions might be taken into account. For example, that one was employed and the other unemployed might be relevant to the likelihood of recidivism.

It is also understood that law enforcement and administrative interests might be given weight.[69] Individuals may be given leniency without regard to their culpability and dangerousness to serve such interests. For example, a mob hit man might be given leniency in exchange for testifying against members of the mob. Arguably, individuals may also be treated more harshly than otherwise deserved or expected in order to serve law enforcement interests.[70] Many defendants who plead guilty are offered more lenient treatment than if they stand trial[71]: whether this means treating those who plead guilty leniently to promote administrative efficiency and spare witnesses or treating those who stand trial with disproportionate harshness is subject to debate.

In the case of the three men arrested for buying cocaine in Chester, the Delaware County prosecutor was disinclined to dismiss the charges.[72] The evidence would have seemed strong, given the officers’ observations and the discovery of the cocaine. The question for the prosecutor was whether to invite the men either to enter the ARD program as an alternative to facing trial or to plead guilty to one or more of the possible charges.[73] In cases involving offenders in the county who purchased small amounts of cocaine for their recreational use, the Delaware prosecutor’s ordinary practice was to offer the defendants entry into the ARD program and to prosecute them on drug charges if they declined. There was nothing in the nature of the men’s background or conduct that called for harsher treatment.

The Delaware County prosecutor might have come under criticism for allowing the men into the ARD program, however, not so much for the particular resolution but for the overall approach to drug crimes that it would have exemplified. This approach, typical of how prosecutors traditionally exercise discretion,[74] would have been narrow, ad hoc, and reactive. The resolution of the individual case would seemingly have failed to account for the magnitude of drug problems in the City of Chester. By the late 1980s, the city had become a magnet for open drug sales, which led to drug-related violence and property crimes. Drug buyers flocked from surrounding areas. If the defendants were allowed into the rehabilitation program, the release of these young white men and others like them, whose demand for drugs had helped turn parts of Chester into an open-air drug market, might have been viewed by city residents as an expression of indifference to the local problem. The prosecutor’s ad hoc approach to drug arrests would not have been perceived as part of a serious prosecutorial, law enforcement, or general public strategy to deal with the drug problem in Chester; if prosecutorial discretion was being exercised in service of such a strategy, the public would not have known.

In fact, the prosecutor did not take the traditional, ad hoc approach. The prosecutor implemented a nonpublic internal policy under which low-level drug offenders arrested in the City of Chester were categorically excluded from the ARD program. The policy was meant to target the city as a high-crime area. In the actual case, the prosecutor was not acting consciously as a “community prosecutor”; the decision predated the first explicit “community prosecution” programs.[75] Nonetheless, one can reimagine the prosecutor’s decision, and the policy on which it was based, as the product of community prosecuting and not traditional prosecuting. The imaginative retelling underscores some of the potential ethical problems that may arise in community prosecuting.

In our fictional account, the Chester County prosecutor regarded himself as a community prosecutor, not a traditional prosecutor. He recognized that Chester was different from surrounding areas of the county in that it was plagued by drug crimes and the attendant violence. He met with business owners, teachers, clerics, and others at town hall meetings in Chester, as well as with the police and public officials, to understand how community representatives and other agencies perceived the problem, what they expected from the prosecutor and other public officials, and whether the community was willing to assist. Afterward, the prosecutor responded by adopting an official zero-tolerance policy for the city of Chester.[76] Drug offenders arrested in Chester would be ineligible for ARD, even in situations in which drug offenders in surrounding parts of the county were routinely allowed into the program.

Under the zero-tolerance policy, the three men were required either to stand trial on charges that were difficult to defend or plead guilty to a criminal charge. Although the men were unlikely to be sentenced to imprisonment even if convicted, a conviction would carry a permanent stigma and a host of “collateral” legal consequences, impeding their future ability to obtain jobs, loans, and other opportunities.

The ethical problem, as some would see it, is that the policy is unfair to individuals arrested in Chester for simple, low-level drug offenses. Denying admission to the ARD program to anyone arrested for a drug offense in Chester, while allowing admission to individuals with identical backgrounds arrested for identical conduct in other parts of the county, arguably violated two conventional normative understandings governing a prosecutor’s exercise of discretion.

First, the policy arguably violated the proportionality principle, resulting in unduly harsh treatment of the defendants. Ordinarily, prosecutors are expected to make individualized charging and plea bargaining decisions based on all the relevant considerations. The existence of the ARD program presupposes that, for some low-level, first-time drug offenders, the proportionate disposition is to offer treatment, rehabilitation, and the opportunity for a fresh start rather than punishment. The prosecutor’s policy foreclosed this possibility based on the assumption that a harsher charging policy would somehow reduce the drug trade in Chester or that the existence of the policy would achieve other social values, such as greater community satisfaction or cooperation with law enforcement authorities.

Second, the policy arguably violated the equality principle, in that similarly situated drug offenders were treated more or less harshly depending on which side of the city line their offense occurred. This consideration is unrelated to their culpability or dangerousness and, thus, seems like an arbitrary basis for deciding whether or not to pursue drug charges or instead admit individuals into the drug rehabilitation program.

A 2004 manual on the ethics of community prosecution noted these potential problems[77] and offered two unsatisfactory responses. The first was a suggestion that community prosecution be defined to exclude punitive strategies and thereby avoid the possibility of disproportionately harsh punishment.[78] Community prosecuting, as so limited, would focus on quality-of-life offenses and would seek to prevent or deter them through strategies other than prosecution, such as neighborhood watches, cameras, and brighter lighting.[79] The problem, of course, is that the response defines “prosecution” out of the concept of “community prosecution” by excluding strategies that include the use of traditional prosecutorial charging power. The second response was that inequities could be avoided by making community prosecuting strategies universal—that is, by applying them throughout the prosecutor’s jurisdiction rather than targeting them to particular communities.[80] This approach, in the name of equal treatment, eliminates the distinctive focus on “community” and results in extending policies to segments of the jurisdiction where they are unjustified. For example, the Delaware County prosecutor might avoid unequal treatment by denying low-level drug offenders access to the state’s rehabilitation program whether they were arrested in or out of Chester, but the result would be to deprive everyone access to a program that the state designed for them and that results in more proportionate disposition in order to promote a social good that relates to only some of their situations.

An alternative answer is that the social good achieved by the community prosecuting policy justifies disproportionate or unequal treatment of some offenders. Just as a mob hit man who testifies against his confederates may be treated different and more leniently than other hit men to promote the criminal justice objective of punishing other offenders, one might argue that low-level drug offenders can be treated more harshly than would ordinarily be expected (though still within the limits prescribed by law) in order to serve criminal justice objectives or other worthy social ends. The problem, however, is that the particular policy may not in fact serve the intended objectives and, indeed, may be counterproductive. When a prosecutor violates conventional principles governing the exercise of discretion to serve what the prosecutor regards as the greater good of the community, there is no particular reason to assume that the prosecutor has exercised discretion fairly and prudently—just the contrary. And with the benefit of hindsight, many would now say that harsh drug-prosecution policies like the one adopted in Chester proved unsuccessful.

III. The Community’s Influence on Prosecutorial Discretion

The story of the Delaware County prosecutor is not meant as an examination of all the issues of prosecutorial discretion that might arise in the context of community prosecuting. It is meant simply to illustrate a point that may be intuitively obvious, namely, that some community prosecution strategies may entail an unwise use of prosecutorial power. If obvious, this should nonetheless warrant concern for at least two reasons. The first is that community prosecution strategies are relatively new for prosecutors and are departures from their ordinary work. Traditional principles governing the exercise of decision-making authority may not be a good fit. But guidance on the wise use of the new strategies has not yet developed.[81] The second reason for concern is that community prosecuting entails an expansion of the prosecution’s power and role. Even in traditional criminal cases, the prudent exercise of prosecutorial discretion is essential in light of the enormity of the power that prosecutors wield for criminal law enforcement ends.[82] Community prosecuting potentially gives prosecutors access to additional powers arising out of their collaborations with civil government agencies and community institutions, and potentially involves serving public objectives aside from traditional law enforcement objectives. Expanded power and expanded jurisdiction imply the ability to cause greater harm and, therefore, the need for more careful attention to how discretionary decisions are made—for example, in accordance with what norms and by what process.[83]

One might argue that a community prosecutor’s cooperation with and accountability to the affected community provide their own checks on the prosecutor’s discretionary decision making. After all, scholars and commentators frequently call on prosecutors to employ greater transparency and public accountability to improve the exercise of traditional prosecutorial discretion,[84] and community prosecution is founded on principles of transparency and accountability. In the community policing context, community justice advocates have argued that community participation in the identification of problems and the development of solutions helps ensure that police discretion is unleashed to maximize social good. For example, Dan Kahan and Tracy Meares have argued that courts should permit greater police discretion for law enforcement strategies that have been endorsed by minority-dominated neighborhoods.[85] In their view, members of the affected communities are better situated “practically and morally” to strike the balance between liberty and order in their own neighborhoods.[86] Similarly, Debra Livingston has argued in favor of extrajudicial, community-based checks on police discretion, such as civilian oversight boards.[87] Because community prosecutors, unlike traditional prosecutors, exercise discretion outside their insular offices, in view of the community to which they are accountable, we might be less concerned about the risks of discretionary decision making by community-based prosecutors than traditional prosecutors.

But to rely on community participation as a means of improving prosecutorial discretion is to assume that the community is sufficiently democratic, informed, and powerful to ensure that community prosecution policies serve the community interest, but not so powerful as to override other prosecutorial priorities. Without participation by representative, well-informed, and empowered stakeholders, there is a risk that law enforcement may co-opt the politically popular rhetoric of “community,” simply to advance its own agenda.[88] At the same time, trusting the community to oversee the exercise of prosecutorial discretion creates a risk that community-based voices will co-opt prosecutorial values. The remainder of this Part examines these dual concerns and then turns to the potential of community-based defense lawyers to help foster a different kind of partnership between communities and law enforcement.

A. Co-Opting of Communities

Just as the term “community prosecution” is difficult to define, so is the very notion of “community.”[89] Out of a recognition that crime and disorder tend to vary by neighborhood, community justice programs tend to define community by geographic boundaries.[90] However, any meaningful idea of community suggests commonalities among its members that go beyond physical proximity.[91] Because of the significant exit costs to residential relocation, one’s address may not be a valid indication of voluntary membership in a geographically defined community.[92] Although one’s neighborhood may be a predictor of socioeconomic status or race, defining community geographically can mask the significant divisions that exist in a neighborhood, both among and within identifiable groups, especially about law enforcement.[93] To say that a community endorses law enforcement’s efforts assumes that divergent constituencies within a neighborhood can agree.[94]

Moreover, even if the residents of a neighborhood could reach something resembling a consensus in identifying and responding to local crime and disorder, police and prosecutors may not be well situated to assess that consensus. Involvement in community justice programs is typically by only a small, nonrepresentative segment of the population.[95] Organizational and institutional stakeholders might be businesses, churches, and other “issue-oriented” groups with their own narrow agendas.[96] For example, Multnomah County’s Neighborhood District Attorney Program, commonly seen as a leader in the growth of community prosecution, was formed in response to business leaders who were concerned that local disorder would interfere with the growth of an emerging commercial district.[97] More than twenty years later, local businesses continue to provide partial funding of the program.[98] As for individual stakeholders, the neighborhood associations that community justice programs often look to for residential participation tend to be dominated by older, whiter, and more fearful homeowners.[99] Other community members might be chilled from participation based on distrust of law enforcement or simply because they are too busy. One study of eight early community justice programs concluded that, despite the varied approaches the programs took to spur community involvement, only a “small core group of residents” was involved, while “ordinary” residents had no idea about, or only a vague awareness of, the programs operating in their neighborhoods.[100]

Even the most active community members may not have sufficient information to assess the desirability of community-based law enforcement programs. Consider, for example, the Delaware County community prosecutor’s policy designating Chester as a drug-selling zone, where all drug offenses would be prosecuted. Predictably, the policy would lead to a shift in police resources to Chester, where the prosecutor had determined to treat drug offenses more seriously. Residents seeking safer streets through more law enforcement might initially support such a program. However, in the long term, one could expect the policy to fall disproportionately on residents of Chester, who spent much more of their time in the targeted community, rather than on white out-of-towners who occasionally drove into the city to buy drugs. Recreational drug users in suburban and rural parts of the county who kept out of Chester would largely be left alone, while young men and women of color who were found in possession of drugs would be prosecuted and convicted. This would lead in Chester to the problem that Michelle Alexander calls “the new Jim Crow”[101]: the mass incarceration and relegation to second-class status of people (especially men) of color who were prosecuted for nonviolent drug offenses that are almost entirely ignored in middle-class white communities. It is hard to imagine that, if the long-term consequences of the prosecutor’s zero-tolerance drug policy were described to Chester residents in 1990, it would be particularly welcome.

Similarly, to the extent that community justice programs often seek to improve the quality of life in neighborhoods by targeting the enforcement of low-level offenses, residents who might otherwise be wary of aggressive policing might endorse the programs on the assumption that low-level offenses do not trigger serious punitive consequences. However, they may do so without understanding fully how the cases would otherwise be treated without their input, how the programs work, or how the collateral consequences of the programs they are supporting might affect their community and its members. They may not, for example, consider the possibility that aggressive street policing might undermine cooperative relationships between the community and law enforcement in the long term.[102] They may not know that the most minor misdemeanors can trigger not only informal policing of social norms, but also a full-blown custodial arrest.[103] They may not know that the government is permitted to hold a person who is arrested without a warrant for up to forty-eight hours without a probable cause hearing.[104] They may not realize that police can use minor offenses as a pretextual basis for making an arrest.[105] They may not understand that the search that is permitted incident to such arrests[106] might yield drugs or guns that result in felony convictions and lengthy sentences, leaving members of the community with whom they share a “linked fate”[107] out of the neighborhood, away from their children, and with a criminal history that undermines their ability to participate in society. Although the prosecutor, as an attorney, will have such knowledge, there is no guarantee that prosecutors will fully inform the community about consequences of the program that might provoke public concern.

Finally, the community may not be in a position to identify or to fight for alternative solutions to neighborhood problems beyond the strategies proposed by law enforcement.[108] They may not realize, for example, that criminal cases can be resolved through diversion programs that enable defendants to avoid criminal convictions. They may not know about nuisance law, property maintenance codes, or other civil approaches to regulating neighborhood disorder and other concerns. If the prosecutor fails to identify alternative approaches to problem solving, the community might support a program proposed by law enforcement as the best of the known alternatives. Although a well-intentioned community prosecutor presumably shares the community’s interest in devising the most effective response, she is also accountable to her office and to the government and must therefore be mindful of internal concerns. The community, in contrast, might prefer far more expensive strategies than the larger jurisdiction to whom the prosecutor is ultimately accountable is willing to pay for.[109]

If neighborhood involvement in community prosecution programs is not truly representative of the relevant community and is not sufficiently informed or empowered, the rhetoric of community can be co-opted by law enforcement to advance its own objectives.[110] Some of the leading scholars of criminal procedure have warned against the over lifting of the powerful and popular rhetorical banner of “community.” Professors Albert Alschuler and Stephen Schulhofer, for example, once observed a need “to be on guard against the appealing but highly manipulable rhetoric of ‘community,’ a rhetoric that is increasingly prevalent in contemporary discourse.”[111] Debra Livingston has noted “that a bewildering and sometimes inappropriate variety of police initiatives could well be implemented in community policing’s name.”[112] Paul Chevigny has said, “So-called community policing that does not mean participation by the people isn’t really community policing.”[113] And Robert Weisberg has cautioned that a “somewhat sentimental notion of ‘community’” can sometimes conceal “a dangerously majoritarian anti-Constitutionalism.”[114] Without assurances that an affected community is actually represented, informed, and empowered, community participation and oversight may not serve as an effective check on prosecutorial discretion.

B. Co-Opting of Prosecutorial Values

At the same time that we may worry about prosecutors who might advance an agenda driven entirely by law enforcement, but in the name of community, community prosecution also poses the opposing concern that majoritarian will might override prosecutorial values.[115] A prosecutor’s well-known duty is not simply to punish, but to promote justice.[116] In the interest of justice, prosecutors generally prioritize serious offenses over minor ones, seeking punishment that fits the severity of the crime.[117] As a general matter, they also seek to have similarly situated offenders treated equally.[118]

In contrast, a neighborhood overridden by low-level crime and disorder does not approach crime-related problems like lawyers, let alone like prosecutors. Community members may overestimate the comparative severity of their concerns, failing to prioritize local problems in light of overall jurisdictional needs. They might also demand differential treatment of the offenders who are deteriorating the quality of life in their communities as compared to offenders in another location. A public afraid of crime is known to respond by asking for more policing and more punishment, failing to recognize criminal law’s traditional retributive limits to utilitarian-based punishment.[119]

The Delaware County prosecutor’s decision to prosecute all drug offenses committed in Chester can be considered through this lens. Vocal business owners, churches, and residents—tired of operating, worshipping, and living in the middle of the county’s drug district—may have demanded action. The designation of a zero-tolerance zone would be a quick, clear, and highly visible reaction to crime concerns.[120] Community prosecution is intended to promote consideration and implementation of alternatives to traditional punishment. But when vocal and empowered communities demand more law enforcement, their participation might lead to more unleashing of punishment, not less, if the prosecutor is unable or unwilling to shape or resist community sentiment.

C. Leveling the Playing Field: Community Defense Lawyers

The movement of prosecutors out of the courthouse and into local neighborhoods poses special concerns about the exercise of discretion by community-based prosecutors. In developing community prosecution strategies, prosecutors may employ processes that compensate for the absence of well-developed normative understandings: the involvement of the community, other agencies, and others in the formulation of community prosecution strategies may help prevent policies that are unproductive or counterproductive and unfair. Although the transparency and accountability on which this model of prosecution is premised provide some theoretical promise of guiding discretion,[121] the community’s potential to oversee prosecutorial decision making can be undermined if participation in prosecutorial programs is not sufficiently representative of all affected constituencies or if the community is not sufficiently knowledgeable or empowered to serve as a meaningful counterbalance. At the same time, politically powerful contingents of the community may have the potential to co-opt prosecutorial values such as proportionality and equality.

One purpose of community prosecution is to bring a lawyer’s expertise to community justice efforts, demonstrating an understanding that lawyers are important to the process.[122] But prosecutors are not general practitioners. They have expertise in criminal law and from a prosecutorial perspective. They tend to be isolated within their own profession, rarely participating in bar activities or engaging with other lawyers.[123] Community prosecution often calls on them to apply nonadvocacy, “social work” types of skills that they may not have and may even be hostile toward.[124] If the goal of community justice is to address neighborhood concerns outside the narrow approach of the usual rapid-response model of policing and prosecution, it is not obvious why the only legal expertise is being provided by prosecutors. When we shift to community prosecution, there is a missing voice that is equally informed in law. Defense lawyers may be in a better position to draw on the perspective of a clientele of people who commit crimes and are accused of doing so. Defense lawyers can identify other “stakeholders” who may not be part of the community prosecution advisory circle. They can also provide citizen participants with another perspective of the programs in question. The defense lawyer’s perspective might help prosecutors temper their impulse to resort to traditional prosecution methods.

Consider, as a contrast to Delaware County’s drug-free zone policy, what has become known as the “High Point” model of intervention in the drug trade, shaped by Professor David Kennedy’s efforts in High Point, North Carolina.[125] Kennedy describes the initiative as follows:

A particular drug market is identified; violent dealers are arrested; and nonviolent dealers are brought to a “call-in” where they face a roomful of law enforcement officers, social service providers, community figures, ex-offenders and “influentials”—parents, relatives and others with close, important relationships with particular dealers. The drug dealers are told that (1) they are valuable to the community, and (2) the dealing must stop. They are offered social services. They are informed that local law enforcement has worked up cases on them, but that these cases will be “banked” (temporarily suspended). Then they are given an ultimatum: if you continue to deal, the banked cases against you will be activated.[126]

In developing the model, Kennedy encountered deeply held beliefs on the part of both law enforcement and community residents that threatened to undermine cooperation between the two. Law enforcement believed that the community lacked positive social norms and was apathetic or even supportive of drug dealing and its accompanying violence.[127] Residents, on the other hand, believed that the police were part of a conspiracy to destroy their community.[128] To get through a “brick wall that preclude[d] meaningful conversations,” Kennedy had to engage in “blunt conversations” with both sides, asking police to understand why residents saw them as the enemy and asking residents if they had done enough to express positive expectations of their own friends and family members.[129] Importantly, in this model, the message to offenders that their drug activity must stop comes not only from police and prosecutors, but also from the community itself.[130] And because the government has agreed to “bank” potential charges, community members who might otherwise be wary of criminal punishment are willing to engage in partnerships with law enforcement and to accept the charges that do result for offenders who fail to heed the community’s pleas for change.[131]

The High Point model demonstrates the broad array of discretion left to the prosecutor seeking to develop community prosecution strategies, the lack of any single ideal process, and the host of questions that might be raised. For example, in seeking to develop community prosecution strategies, what information should be sought and from whom? Should the prosecutor speak only with business leaders, clergy, and educators? Or should the prosecutor also speak with the very population whose activities are at the heart of the community’s concerns? To what extent should prosecutors look beyond community representatives and government agencies—that is, to social scientists, health care professionals, social workers, and others who might offer different perspectives? What should community prosecutors do with the information they gather? When should prosecutors promote community objectives and when should they serve as a check on community sentiment?

Prosecutors may not be in a position on their own to either identify all of the relevant stakeholders or to explore all of the divergent outlooks on a community problem. Criminal defense lawyers, who have access to prior clients and their families, and who may generally hold a contrasting worldview from prosecutors, can bring lawyering skills to community justice efforts from a different perspective.

IV. Transparency and Traditional Prosecution

We have posited that the public’s ability to serve as a check on prosecutorial discretion in the community prosecution context will depend on whether a diversely constituted community is fully participatory in prosecution efforts, and whether the public is sufficiently informed and empowered to meaningfully express its will. At the same time, however, we have expressed an opposing concern that an overly empowered public can impose majoritarian will and override traditional prosecutorial values, such as treating similarly situated offenders equally or prioritizing more serious offenses. We have suggested that the addition of defense lawyers to community justice conversations might increase community participation and education, while also tempering prosecutorial impulses toward traditional law enforcement methods.

We close by considering whether the lessons of community prosecution might be imported into other areas of traditional discretion. As currently implemented, community prosecution takes place on a separate track from traditional prosecution, practiced by different lawyers and reflecting different models of law enforcement.[132] Prosecutors who favor community-based prosecution have failed to articulate why the model’s tenets should not apply more broadly to all prosecutorial action.[133] If transparency, public accountability, and an exploration of nonpunitive responses to crime are sensible in developing proactive law enforcement strategies, the obvious question is why these same principles should not apply to traditional prosecutorial work that is reactive to individual criminal offenses.[134]

One possible argument for separating “new” prosecution from “traditional” prosecution might hinge on a distinction between the minor, quality-of-life offenses that tend to be the subject of community prosecution and the serious crimes that almost universally trigger traditional prosecution. One might argue that, from a retributive perspective, serious offenses demand a minimum level of punishment. Therefore, it is improper for society to explore alternative, nonpunitive responses to these crimes. In contrast, quality-of-life offenses are less wrong and, in some instances, are criminalized only as a means to an end of maximizing social good. Retribution calls for little or no punishment for these offenses. Accordingly, law enforcement may adopt an instrumentalist approach, seeking the most effective, responsive strategy, without offending society’s retributive notions of justice. Reliance on a utilitarian model of punishment for minor offenses, while invoking retributive justifications for serious ones, would concede (and justify) a two-tiered system.[135]

However, the distinction between minor (“new”) and serious (“traditional”) offenses, and an accompanying differentiation between consequentialist and desert-based schools of punishment, does not explain why public participation, transparency, and accountability are appropriate for the former, but not the latter. While half of all prosecutors’ offices practice some form of community prosecution,[136] prosecutors’ offices are still widely seen as insular, reluctant to relinquish their broad discretion, and resistant to calls for increased transparency.[137] Community prosecutors may leave the courthouse to engage with outside voices, but much of what the traditional prosecutor does takes place not only at the courthouse, but also off the record, unseen, and unseeable from public view.[138]

Consider again, for example, the Delaware County prosecutor’s response to drug activity in the City of Chester. Community input might assist the prosecutor in determining whether low-level drug transactions should be considered minor enough to qualify for “new” models of prosecution (and what those models should look like), or whether they are sufficiently harmful to justify retribution-based punishment. Or if this decision is left entirely within the prosecutor’s discretion, perhaps the public should be informed about the adoption of a two-tiered system and the factors that guide the prosecutor’s determination about which types of cases are treated as “new” and which will be treated “traditionally.”

Moreover, traditional prosecution—even applying reactive, retributive models of punishment—might benefit from engagement with voices outside the prosecutor’s office. As scholars have previously noted, prosecutorial transparency increases public confidence in prosecutors and courts and enhances the legitimacy of the criminal justice system.[139] Public elections of prosecutors would be more reliable if the public were better informed about prosecutorial policies and discretionary decision making.[140] Prosecutors might also be able to neutralize the kinds of cognitive biases that can result in wrongful convictions by talking about their cases with people—perhaps even defense attorneys—who might see the evidence or the offense in a different light.[141]

At the same time, in the context of much of prosecutors’ traditional work—namely, the prosecution of individual cases—there are practical and ethical limits on the ability to make decision making transparent and respond to community input. Discretionary decision making is pervasive;[142] prosecutors would not have time to become transparent and accountable in every individual case even if it were desirable and proper to do so. Prosecutors are limited by the interests in investigative secrecy and in fairness to the accused in their ability to discuss publicly the facts relevant to charging decisions and other discretionary decisions or the reasons for their decisions.[143] The Manhattan District Attorney’s recent, highly publicized prosecution of Dominique Strauss-Kahn was a rare one in which the prosecutor had an opportunity, in the context of judicial proceedings, to explain the facts and standards governing a discretionary decision—in that case, the decision to seek to dismiss previously filed charges.[144] In contrast, if the Manhattan prosecutor had decided not to bring charges in the first place and had issued a public statement explaining why, the prosecutor might have been criticized for being unfair both to the alleged accuser, whose credibility was called into question, and to the accused, who remained under a cloud of suspicion. Similarly, if the prosecutor had solicited community input before deciding whether to bring or continue charges, the prosecutor would have been criticized for abdicating his authority to exercise independent professional judgment. Prosecutors might be encouraged, based on the community prosecuting model, to develop and publicly articulate general principles governing their traditional work,[145] but it would be unrealistic to expect in their ad hoc, reactive decision making the kind of transparency and community engagement that is characteristic of the work of community prosecuting.

Conclusion

This Article set out to explore the special problem of discretion by the community prosecutor. We have suggested that the exercise of prosecutorial discretion in developing community prosecution strategies poses unique problems from traditional prosecution work. One implication is that prosecutors ought to discuss and develop normative understandings regarding the use of proactive strategies and policies of the kind that have been labeled as community prosecuting. Another is that the public should be attentive to community prosecuting strategies, should ask how they are justified, and should evaluate the justifications with sufficient information to serve a meaningful participatory function. And finally, whatever lessons emerge about the relationship between the public and prosecutorial discretion when prosecutors step out of the courthouse might also, within limits, inform the proper exercise of discretion within traditional prosecutorial functions.

* Louis Stein Professor, Fordham University School of Law; Director, Stein Center for Law and Ethics.

** Professor of Law, Hofstra Law School.

[1]. History of Community Prosecution, Bureau of Just. Assistance, https://www.ncjrs.gov/html/bja/commpros/bja1.html (last visited Feb. 10, 2012) (showing chronology of community-based prosecution efforts).

[2]. M. Elaine Nugent, Am. Prosecutors Research Inst., What Does it Mean to Practice Community Prosecution? 4 (2004).

[3]. History of Community Prosecution, supra note 1 (documenting federal funding distributed in the late 1990s and early 2000s to support the development, continuation, and growth of community-based prosecution efforts).

[4]. See, e.g., M. Elaine Nugent et al., Am. Prosecutors Research Inst., The Changing Nature of Prosecution: Community Prosecution vs. Traditional Prosecution Approaches 3–4 (2004) [hereinafter The Changing Nature of Prosecution] (describing prosecutors’ differing understandings and uses of the term); Anthony C. Thompson, It Takes a Community to Prosecute, 77 Notre Dame L. Rev. 321, 323 (2002) (“It is not at all obvious . . . what the term ‘community prosecution’ actually means.”).

[5]. Am. Prosecutors Research Inst. Criminal Prosecution Div., Community Prosecution: A Guide for Prosecutors 1 (n.d.) [hereinafter Guide for Prosecutors],available at http://www.ndaa.org/pdf/Community
%20Prosecution%20guide.pdf (“Community prosecution has derived some of its basic elements from community policing (i.e. directly engaging with community residents; responding proactively to crime; increasing accountability to the public; and decentralizing operations).”); Nat’l Dist. Att’ys Ass’n & Nat’l Ctr. for Cmty. Prosecution, Key Principles of Community Prosecution 3–4 (2009) [hereinafter Key Principles of Community Prosecution], available athttp://www.ndaa.org/pdf/final_key_principles_updated_jan_2009.pdf; Russ Freyman, D.A.s in the Streets, Governing, Sept. 1998, at 28, 28 (noting that community prosecution derived from community policing).

[6]. Early forms of policing in the United States did focus more on order-maintenance than reactive, investigatory crime control. See George L. Kelling & Mark H. Moore, From Political to Reform to Community: The Evolving Strategy of Police, in Community Policing: Rhetoric or Reality 3, 3–11 (Jack R. Greene & Stephen D. Mastrofski eds., 1988) (noting law enforcement’s shift during the twentieth century from a focus on social welfare work toward a prioritization of crime control); Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 Colum. L. Rev. 551, 565–73 (1997) (documenting historical trends in American policing).

[7]. Mark H. Moore & George L. Kelling, “To Serve and Protect”: Learning from Police History, Pub. Int., Winter 1983, at 49, 60; Thompson, supra note 4, at 338–39.

[8]. Alafair S. Burke, Unpacking New Policing: Confessions of a Former Neighborhood District Attorney, 78 Wash. L. Rev. 985, 989 (2003).

[9]. Thompson, supra note 4, at 339.

[10]. Stephen D. Mastrofski & James J. Wills, Police Organization Continuity and Change: Into the Twenty-First Century, in 39 Crime and Justice: A Review of Research 55, 118 (Michael Tonry ed., 2010).

[11]. Id.

[12]. In his 1994 State of the Union Address, President Clinton vowed to place 100,000 community-oriented police officers on America’s streets. President William Clinton, State of the Union Address (Jan. 25, 1994), in 30 Weekly Compilation of Presidential Documents 148, 155–56 (1994). Within a year, the Department of Justice created its Office of Community Oriented Policing Services (“COPS”) to accomplish that goal by expanding community policing and distributing grant funds to support local community policing projects. Ted Gest, The Evolution of Crime and Politics in America, 33 McGeorge L. Rev. 759, 762 (2002).

[13]. Wesley G. Skogan & Susan M. Hartnett, Community Policing, Chicago Style, at vii (1997) (“The concept [of community policing] is so popular with the public and city councils that scarcely a chief wants his department to be known for failing to climb on this bandwagon.”).

[14]. Between 1997 and 1999, the number of police departments employing community policing techniques doubled, and the number of police officers designated as community policing officers quadrupled. Matthew J. Hickman & Brian A. Reaves, Bureau of Justice Statistics, Community Policing in Local Police Departments, 1997 and 1999, at 2 (rev. 2003), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cplpd99.pdf.

[15]. Tracey L. Meares, Praying for Community Policing, 90 Calif. L. Rev. 1593, 1593 (2002) (collecting sources evidencing that the term community policing “has become ubiquitous among law-enforcement practitioners and scholars”).

[16]. Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race, and Disorder in New York City, 28 Fordham Urb. L.J. 457, 502 (2000) (discussing the influence of community “stakeholders” in shaping police norms); Joan W. Howarth, Toward the Restorative Constitution: A Restorative Justice Critique of Anti-Gang Public Nuisance Injunctions, 27 Hastings Const. L.Q. 717, 720 (2000) (observing that “stakeholder” agreement is important to restorative justice programs).

[17]. Archon Fung, Beyond and Below the New Urbanism: Citizen Participation and Responsive Spatial Reconstruction, 28 B.C. Envtl. Aff. L. Rev. 615, 629 (2001) (discussing neighborhood-specific identification of problems and solutions); Philip B. Heymann, The New Policing, 28 Fordham Urb. L.J. 407, 421 (2000) (“[P]olice are accountable to neighborhoods as well as to cities . . . .”).

[18]. Eric W. Nicastro, Confronting the Neighbors: Community Impact Panels in the Realm of Restorative Justice and Punishment Theory, 9 Roger Williams U. L. Rev. 261, 261 (2003).

[19]. James Q. Wilson & George L. Kelling, Broken Windows, Atlantic Monthly, Mar. 1982, at 29, 31–32; Livingston, supra note 6, at 583–85 (discussing the broken windows theory’s influence on contemporary policing).

[20]. Wilson & Kelling, supra note 19, at 31–32.

[21]. See id. at 33. For more thorough discussions of the role of enforcement of social norms in community policing efforts, see Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 Va. L. Rev. 349, 367–77 (1997); Livingston, supra note 6, at 578–84; Richard C. Schragger, The Limits of Localism, 100 Mich. L. Rev. 371, 377 (2001); Sarah E. Waldeck, Cops, Community Policing, and the Social Norms Approach to Crime Control: Should One Make Us More Comfortable with the Others?, 34 Ga. L. Rev. 1253, 1256–58 (2000).

[22]. Waldeck, supra note 21, at 1270–71.

[23]. See Heymann, supra note 17, at 423 (noting Goldstein’s influence in shifting police priorities to the prevention of crime as a primary goal); Livingston, supranote 6, at 573–75 (discussing Goldstein’s influence on contemporary policing). See generally Herman Goldstein, Problem-Oriented Policing (1990); Herman Goldstein, Improving Policing: A Problem-Oriented Approach, 25 Crime & Delinq. 236 (1979).

[24]. Heymann, supra note 17, at 420 (“[O]ur policing strategies in the last decade have turned heavily towards prevention of crimes . . . rather than individual events.”).

[25]. See, e.g., Guide for Prosecutors, supra note 5, at 1 (“APRI defines community prosecuting as a philosophy, as well as a strategy, involving prosecutors focusing their resources in response to the needs of specific communities.”).

[26]. See id. at 5–7 (listing nine “elements critical to the success” of community prosecution); Key Principles of Community Prosecution, supra note 5, at 3–4.

[27]. See, e.g., The Changing Nature of Prosecution, supra note 4, at 3 (community prosecution is an “integrated, solutions-based approach to eradicate crime. . . . [It] brings prosecutors together with residents to identify quality-of-life issues (such as graffiti, vandalism, trespassing, disorderly conduct, drug solicitation, prostitution, aggressive panhandling, etc.) in an attempt to develop and implement long-term strategies to address community concerns”).

[28]. See, e.g., Guide for Prosecutors, supra note 5, at 9–10, 43 (illustrating the concept of community prosecuting through programs aimed at violent felons).

[29]. See, e.g., id. at 4 (asserting that community prosecuting “involves a long-term, proactive partnership”).

[30]. See, e.g., The Changing Nature of Prosecution, supra note 4, at 7 (Community prosecuting is commonly thought to include “[a]n integrated approach involving both reactive (e.g., prosecuting crimes identified by the police) and proactive strategies (e.g., anticipatory actions aimed at addressing problems at their root cause).”).

[31]. See, e.g., Michael R. Kuykendall, Am. Prosecutors Research Inst., From the Courtroom to the Community: Ethics and Liability Issues for the Community Prosecutor 10 (2004) [hereinafter From the Courtroom to the Community] (suggesting that community prosecutors can avoid unwanted variations “by expanding their community prosecuting initiative jurisdiction-wide”).

[32]. See, e.g., The Changing Nature of Prosecution, supra note 4, at 7 (listing among commonly cited characteristics of community prosecuting the concentration on “[a] clearly defined focus area, which has traditionally been defined as a targeted geographic area”).

[33]. See, e.g., From the Courtroom to the Community, supra note 31, at 9 (“Neighborhood clean-ups, formation of block watches and foot patrols, and turning on porch lights are all tools used by community prosecutors to actually prevent crime.”).

[34]. The Changing Nature of Prosecution, supra note 4, at 15–16; Kay Levine, The New Prosecution, 40 Wake Forest L. Rev. 1125, 1173–74 (2005) (noting “ambivalence or hostility” in prosecutors who see community-based, problem-solving role as beyond their traditional prosecutorial duties). However, even the APRI concedes that “many prosecutors, policymakers, and scholars are still at a loss to explain how community prosecution differs from traditional prosecution.” The Changing Nature of Prosecution, supra note 4, at 3.

[35]. Frank O. Bowman, III, American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer, 156 U. Pa. L. Rev. PENNumbra 226, 237 (2007), http://www.pennumbra.com/responses/11-2007
/Bowman.pdf.

[36]. Bruce A. Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 Wis. L. Rev. 837, 837–38 (“Few decisions prosecutors make are subject to legal restraints or judicial review. Consequently, the key question for prosecutors ordinarily is not whether their decisions are lawless, in the sense that a court might overturn them, but rather whether the decisions are wise or imprudent.” (citations omitted)).

[37]. See id. at 877 (“[P]rosecutors must confine their decision-making criteria to a combination of resource considerations and policy considerations that drive the justifications for punishment.”).

[38]. Guide for Prosecutors, supra note 5, at 1 (“The community prosecution approach is proactive and views community residents and law enforcement as partners in maintaining public safety.”). In 1995, APRI adopted the following definition: “Community prosecution focuses on targeted areas and involves a long-term, proactive partnership among the prosecutor’s office, law enforcement, the community and public and private organizations, whereby the authority of the prosecutor’s office is used to solve problems, improve public safety and enhance the quality of life in the community.” Id. at 4.

[39]. E.g., id. at 27 (describing Milwaukee’s “education and prevention effort to teach the public about the criminal justice system, particularly courts and drug-case processing”); id. at 41 (describing a Manhattan youth education program “to educate elementary, junior high, and high school students about the criminal justice system”).

[40]. E.g., id. at 32 (describing a Jackson County, Missouri, prosecutor’s creation of a drug court “to allow first-time substance abuse offenders charged with lesser drug felonies to receive substance abuse treatment in lieu of prosecution and prison time”); id. at 35 (describing a Jackson County, Missouri, prosecutor’s project to identify close residential and commercial buildings that were sites of drug activity through “controlled buys, search warrants, health and fire code inspections, property owner notification, evictions, civil abatement and forfeiture actions”); id. at 44 (describing Manhattan prosecutors’ use of obscure civil law to evict drug dealers from residential apartment buildings).

[41]. E.g., id. at 10 (describing programs of Philadelphia District Attorney’s Office aimed at drug trafficking, including a program whereby selected cases were transferred to the federal authorities to be prosecuted under tougher federal criminal laws and a program “focusing intense prosecution efforts on a single police district”); id. at 43 (describing a Manhattan program in which information is gathered from specific neighborhoods to facilitate prosecutions of gang leaders for violent crimes); id. at 54 (describing a Multnomah County prosecutor’s policy of excluding individuals arrested for drug offenses from areas defined as “Drug-Free Zones” and arresting those who entered these areas for trespassing).

[42]. Nugent, supra note 2, at 15–16.

[43]. Id. at 27.

[44]. From the Courtroom to the Community, supra note 31, at 13.

[45]. With regard to prosecutors’ administrative role, see generally Rachel E. Barkow, The Ascent of the Administrative State and the Demise of Mercy, 121 Harv. L. Rev. 1332 (2008), and Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 Fordham L. Rev. 21 17 (1998).

[46]. The Changing Nature of Prosecution, supra note 4, at 3.

[47]. For a general discussion of laws targeting low-level offenses, see Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 Yale L.J. 1165, 1217–19 (1996), and Schragger, supra note 21, at 378 (discussing laws targeting low-level offenses).

[48]. Portland, Or., City Code §§ 14B.20.010–.070 (2002) (creating “drug free zones” from which drug offenders can be excluded).

[49]. Id. § 14B.20.035.

[50]. See Roulette v. City of Seattle, 97 F.3d 300, 302–06 (9th Cir. 1996) (upholding a Seattle ordinance prohibiting sitting or lying on sidewalks).

[51]. See Pottinger v. City of Miami, 810 F. Supp. 1551, 1562–84 (S.D. Fla. 1992) (enjoining enforcement against the homeless of prohibitions against sleeping and eating in public).

[52]. See Loper v. N.Y.C. Police Dep’t, 999 F.2d 699, 701–06 (2d Cir. 1993) (finding unconstitutional an ordinance prohibiting loitering for the purpose of begging); Helen Hershkoff & Adam S. Cohen, Begging To Differ: The First Amendment and the Right To Beg, 104 Harv. L. Rev. 896, 896 n.5 (1991) (summarizing laws regulating and prohibiting panhandling).

[53]. See generally Brian Privor, Dusk ‘Til Dawn: Children’s Rights and the Effectiveness of Juvenile Curfew Ordinances, 79 B.U. L. Rev. 415 (1999) (discussing juvenile curfews).

[54]. The Changing Nature of Prosecution, supra note 4, at 22.

[55]. See John L. Worrall, Prosecution in America: A Historical and Comparative Account, in The Changing Role of the American Prosecutor 3, 8–9 (John L. Worrall & M. Elaine Nugent-Borakove eds., 2008).

[56]. Community Prosecution: Key Dimensions, Bureau of Just. Assistance, https://www.ncjrs.gov/html/bja/commpros/bja2.html (last visited Feb. 10, 2012).

[57]. Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 Iowa L. Rev. 393, 443 (2001).

[58]. Catherine M. Coles, Evolving Strategies in 20th-Century American Prosecution, in The Changing Role of the American Prosecutor, supra note 55, at 177, 182 (explaining how prosecutors developed standards and strategies for handling cases throughout the 20th century).

[59]. Commonwealth v. Agnew, 600 A.2d 1265 (Pa. Super. Ct. 1991).

[60]. 234 Pa. Code §§ 300–320 (2000).

[61]. Id. §§ 319–320.

[62]. Marc L. Miller & Ronald F. Wright, Criminal Procedures 1129 (4th ed. 2011).

[63]. See generally Alafair S. Burke, Prosecutorial Agnosticism, 8 Ohio St. J. Crim. L. 79, 84–86, 91–99 (2010) (noting the general belief that prosecutors must be personally convinced of the defendant’s guilt but arguing that prosecutors should strive for agnosticism); Bruce A. Green & Ellen Yaroshefsky, Prosecutorial Discretion and Post-Conviction Evidence of Innocence, 6 Ohio St. J. Crim. L. 467, 497–501 (2009) (describing alternative approaches that prosecutors might take to the question of how convinced they must be of a defendant’s guilt); Recommendation for Dismissal at 4, People v. Strauss-Kahn, No. 02526/2011 (N.Y. Sup. Ct. Aug. 22, 2011), (“[F]or generations, before determining whether a case should proceed to trial, felony prosecutors in New York County have insisted that they be personally convinced beyond a reasonable doubt of the defendant’s guilt, and believe themselves able to prove that guilt to a jury. . . . If, after careful assessment of the facts, the prosecutor is not convinced that a defendant is guilty beyond a reasonable doubt, he or she must decline to proceed.”), available at http://www.documentcloud.org
/documents/238252-motion-to-dismiss-dominique-strauss-kahn-case.html.

[64]. See, e.g., ABA Standards for Criminal Justice: Prosecution and Defense Function § 3-3.9(a) (1993) [hereinafter ABA Standards] (“A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.”); Frank W. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 35 (1970) (“[P]rosecutors are not willing to devote resources to charging merely because the law would permit them to do so. Instead they insist that the evidence be of a nature that conviction is very likely to follow.”).

[65]. Cf. ABA Standards, supra note 64, § 3-3.9(b)(ii)–(iii) (listing “the extent of the harm caused by the offense” and “the disproportion of the authorized punishment in relation to the particular offense or the offender” among factors relevant to the decision to prosecute).

[66]. Cf. id.; United States Attorneys’ Manual § 9-27.420 (2011) (advising federal prosecutors to consider the defendant’s criminal history and the “nature and seriousness of the offense” in evaluating the propriety of a plea bargain), available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/27mcrm
.htm#9-27.420.

[67]. See, e.g., Bruce A. Green, Why Should Prosecutors “Seek Justice”?, 26 Fordham Urb. L.J. 607, 634 (1999) (“[M]ost would agree . . . [that the prosecutor should] treat lawbreakers with rough equality; that is, similarly situated individuals should generally be treated in roughly the same way.”); Press Release, Ala. Dist. Att’ys Ass’n (Sept. 17, 2007), available at http://blog.al.com/bn/2007/09/das_group_issues_response_to_a.html (defending a district attorney “for trying to ensure that similarly-situated defendants are treated similarly” in response to the state attorney general’s attack on a district attorney who agreed that an accomplice to homicide should not receive the death penalty after the triggerman was held ineligible for the death penalty because of his age).

[68]. See M. Elaine Nugent-Borakove, Performance Measures and Accountability, in The Changing Role of the American Prosecutor, supra note 55, at 91, 99–100.

[69]. See, e.g., Roger A. Fairfax, Jr., Prosecutorial Nullification, 52 B.C. L. Rev. 1243, 1256–58 (2011); Lynch, supra note 45, at 2140–41.

[70]. See, e.g., Bruce A. Green, “Package” Plea Bargaining and the Prosecutor’s Duty of Good Faith, 25 Crim. L. Bull. 507 (1989) (discussing scenarios in which prosecutors seek to induce defendants to plead guilty in exchange for leniency to family members who might not ordinarily be prosecuted but for prosecutors’ interest in obtaining leverage).

[71]. Miller & Wright, supra note 62, at 1108.

[72]. Commonwealth v. Agnew, 600 A.2d 1265, 1266 (Pa. Super. Ct. 1991).

[73]. Id.

[74]. Norman Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L. Rev. 1, 2–3 (1971).

[75]. See History of Community Prosecution, supra note 1 (showing chronology of community-based prosecution).

[76]. In Agnew, the policy was unwritten and, presumably, non-public, at least until it was challenged. Agnew, 600 A.2d at 1267. A community prosecutor, however, would ordinarily publicize the policy to promote both public accountability and deterrence.

[77]. Others have as well. See, e.g., Anthony V. Alfieri, Community Prosecutors, 90 Calif. L. Rev. 1465, 1474 (2002) (noting that pilot community prosecution programs “raise[d] issues of priority and proportionality in prosecution”); Kelley Bowden Gray, Community Prosecution: After Two Decades, Still New Frontiers, 32 J. Legal Prof. 199, 205–09 (2008) (discussing various ethical concerns regarding community prosecution, including “that similarly situated defendants may not be treated equally”).

[78]. From the Courtroom to the Community, supra note 31, at 8–9.

[79]. The APRI explains that defendants may be singled out for deterrence but not for disproportionate treatment. Id. at 8. The aim is to “reduce an impediment to livability” by focusing on low-level criminal conduct through policing, not punishment. Id. Prosecutors prevent crime through “[n]eighborhood clean-ups, formation of block watches and foot patrols, and turning porch lights on at night . . . . [T]here is no focus on criminal convictions at all, and offenders in the neighborhood therefore cannot be treated more harshly than their counterparts in the conventional prosecution scenario.” Id. at 9.

[80]. Id. at 10 (“Chief prosecutors can avoid [the failure to treat like cases alike] by expanding their community prosecution initiative jurisdiction-wide.”).

[81]. See What Have We Learned From Evaluations of Community Prosecution?, Bureau of Just. Assistance, http://www.ojp.usdoj.gov/BJA
/evaluation/program-adjudication/comm-prosecution2.htm (last visited Feb. 13, 2012) (“There has been some disagreement within the field regarding the goals and objectives of prosecution generally and how to measure its accomplishments. . . . [A]s of yet there have been no strong, systematic evaluations undertaken to assess the performance of community prosecution initiatives.”).

[82]. Leslie C. Griffin, The Prudent Prosecutor, 14 Geo. J. Legal Ethics 259, 261 (2001).

[83]. Cf. Robert Jackson, The Federal Prosecutor, 24 J. Am. Judicature Soc’y 18, 18–20 (1940) (encouraging prosecutors to use their discretion in an ethical and moral manner).

[84]. Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor 3–16, 176–77 (2007); Susan Bandes, Loyalty to One’s Convictions: The Prosecutor and Tunnel Vision, 49 How. L.J. 475, 494 (2006); Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911, 917 (2006); Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 391; Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U. L. Rev. 125, 177–78 (2004).

[85]. Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, 1166–71 (1998); Tracey L. Meares, Norms, Legitimacy and Law Enforcement, 79 Or. L. Rev. 391, 410 (2000).

[86]. Kahan & Meares, supra note 85, at 1177–80.

[87]. Livingston, supra note 6, at 664–65; see also Reenah L. Kim, Legitimizing Community Consent to Local Policing: The Need for Democratically Negotiated Community Representation on Civilian Advisory Councils, 36 Harv. C.R.-C.L. L. Rev. 461, 476–82 (2001) (summarizing arguments that community partnerships serve as police oversight).

[88]. See Kim, supra note 87, at 462.

[89]. Jerome E. McElroy et al., Community Policing: The CPOP in New York 3–4 (1993) (noting that the term community is “imprecise” and can be “idealized”).

[90]. See supra note 32 and accompanying text.

[91]. Jerome H. Skolnick & James J. Fyfe, Above the Law: Police and the Excessive Use of Force 254 (1993) (noting that communities are rare if defined as having “a commonality of interests, traditions, identities, values, and expectations”); McElroy, supra note 89 (“Virtually all commentators agree that the concept of ‘community’ as used in the rhetoric of community policing is imprecise . . . and largely uninformed by a century of sociological usage and study.”).

[92]. See Edward Glenn Goetz, Clearing the Way: Deconcentrating the Poor in Urban America 71, 86–87 (2003) (identifying expenses as significant barriers to voluntary relocation).

[93]. See Regina Austin, “The Black Community,” Its Lawbreakers, and a Politics of Identification, 65 S. Cal. L. Rev. 1769, 1770–71 (1992); David Cole,Foreword: Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship, 87 Geo. L.J. 1059, 1085 (1999) (“[I]nner-city communities, like all communities, do not speak with one voice . . . .”); Tracey L. Meares, Place and Crime, 73 Chi.-Kent L. Rev. 669, 689 (1998); Eric K. Yamamoto,The Color Fault Lines: Asian American Justice from 2000, 8 Asian L.J. 153, 157–58 (2001) (discussing “color on color” conflicts).

[94]. Adriaan Lanni, The Future of Community Justice, 40 Harv. C.R.-C.L. L. Rev. 359, 402 (2005) (“[C]riminal justice policies are largely imposed on underrepresented inner city communities by middle-class politicians and citizens who may have a radically different experience of crime and law enforcement.”).

[95]. See Burke, supra note 8, at 1006–07; Kim, supra note 87, at 482.

[96]. Kim, supra note 87, at 483.

[97]. John S. Goldkamp et al., Bureau of Justice Assistance, Community Prosecution Strategies: Measuring Impact 2 (2002) (“The immediate origins of the community prosecution movement are often traced to the pioneering efforts of Multnomah County District Attorney (DA) Michael Schrunk, who established the Neighborhood DA Unit in Portland, Oregon, in 1990 in response to business leaders’ concerns that quality-of-life crimes would impede development of a central business district.”).

[98]. Neighborhood DA Unit, Office of the Dist. Att’y, http://www2.co.multnomah.or.us/cfm/da/NDAP/index.cfm?fuseaction=overview&menu=1 (last visited Feb. 11, 2012) (noting financial support from federal and local government, the local transportation agency, and local businesses).

[99]. See Michael E. Buerger, A Tale of Two Targets: Limitations of Community Anticrime Actions, in Community Justice: An Emerging Field 137, 137–38 (David R. Karp ed., 1998); Wesley G. Skogan, Community Organizations and Crime, in 10 Crime and Justice: A Review of Research 39, 68 (Michael Tonry & Norval Morris eds., 1988) (concluding that residents are more likely to organize in “homogeneous, better-off areas of cities”). But see Wesley G. Skogan, Police and Community in Chicago: A Tale of Three Cities 137 (2006) (reporting that participation in Chicago community policing programs “was highest in the city’s most violent, drug-infested neighborhoods”).

[100]. Randolph M. Grinc, “Angels in Marble”: Problems in Stimulating Community Involvement in Community Policing, 40 Crime & Delinq. 437, 442–45 (1994).

[101]. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 11–17 (rev. ed. 2012).

[102]. Richard R.W. Brooks, Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities, 73 S. Cal. L. Rev. 1219, 1227 (2000) (“Community tension with and distrust of police may rise with more aggressive policing of low-level offenses.”); Debra Livingston, Gang Loitering, the Court, and Some Realism about Police Patrol, 1999 Sup. Ct. Rev. 141, 178 (“[E]ven when properly employed, aggressive use of stop and frisk can alienate and estrange communities in ways that ultimately detract from, rather than contribute to, the maintenance of a vibrant civil order.”).

[103]. See Virginia v. Moore, 553 U.S. 164 (2008) (holding that a custodial arrest for a misdemeanor was valid even when the state legislature had designated the crime a non-arrestable crime); Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (holding that a custodial arrest for a seatbelt offense was lawful, even though the maximum penalty was a fine, not imprisonment, because the offense was designated a crime by the legislature).

[104]. City of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).

[105]. See Whren v. United States, 517 U.S. 806, 816–19 (1996) (upholding police seizure of a driver who had committed a minor traffic offense and holding that the officer’s subjective intentions for the seizure were immaterial).

[106]. See generally Chimel v. California, 395 U.S. 752 (1969).

[107]. Tracey L. Meares, Social Organization and Drug Law Enforcement, 35 Am. Crim. L. Rev. 191, 215–17 (1998) (discussing the concept of “linked fate,” both in people generally as they consider how government policies affect family and friends, and specifically by African Americans, who feel a connection even to Black strangers because of shared circumstances that have been shaped historically by race).

[108]. See Grinc, supra note 100, at 456 (reporting that even the neighborhood group leaders who were most knowledgeable about community justice programs did not understand the community’s role in them).

[109]. Cole, supra note 93, at 1088 (observing that inner-city residents might prefer expensive alternatives that the larger community is unwilling to pay for); Erik G. Luna, The Models of Criminal Procedure, 2 Buff. Crim. L. Rev. 389, 453 (1999) (“Inner-city minorities have opted for discretionary policing techniques not on the merits but because society at large refuses to provide adequate resources to safeguard urban communities.”).

[110]. See Mastrofski & Willis, supra note 10, at 113 (citing William Lyons, The Politics of Community Policing: Rearranging the Power to Punish (1999)) (noting that a study of community policing programs in Seattle concluded that, despite early progress in developing “participatory and deliberative democracy,” the programs ultimately became “less a two-way communications mechanism than a means to garner community acquiescence to police priorities and acceptance of police-generated programs”).

[111]. Albert W. Alschuler & Stephen J. Schulhofer, Antiquated Procedures or Bedrock Rights?: A Response to Professors Meares and Kahan, 1998 U. Chi. Legal F. 215, 216 (1998).

[112]. Livingston, supra note 6, at 577.

[113]. Roundtable, Law and Disorder: Is Effective Law Enforcement Inconsistent with Good Police-Community Relations?, 28 Fordham Urb. L.J. 363, 366 (2000) (comments of Paul Chevigny).

[114]. Robert Weisberg, Foreword: A New Agenda for Criminal Procedure, 2 Buff. Crim. L. Rev. 367, 370 (1999).

[115]. Lanni, supra note 94, at 369–70.

[116]. Berger v. United States, 295 U.S. 78, 88 (1935); Model Rules of Prof’l Conduct R. 3.8 cmt. 1 (2009); Model Code of Prof’l Responsibility EC 7-13 (1980); ABA Standards, supra note 64, § 3-1.2(c).

[117]. Devin J. Doolan, Jr., Community Prosecution: A Revolution in Crime Fighting, 51 Cath. U. L. Rev. 547, 547–48 (2002).

[118]. Gray, supra note 77, at 206.

[119]. Susan A. Bandes, Child Rape, Moral Outrage, and the Death Penalty, 103 Nw. U. L. Rev. Colloquy 17, 21 (2008), http://www.law.northwestern.edu
/lawreview/colloquy/2008/27/lrcoll2008n27bandes.pdf (noting the connection between fear and the public’s retributive impulses); Francis T. Cullen, Bonnie S. Fisher & Brandon K. Applegate, Public Opinion about Punishment and Corrections, in 27 Crime and Justice: A Review of Research 1 (Michael Tonry ed., 2000) (assessing public opinion about punishment); cf. Thompson, supra note 4, at 348, 353–54 (“Some might contend that placing too much emphasis on community sentiment could undermine the detachment the prosecutor needs in order to exercise discretion and fulfill the role of minister of justice. . . . [A]ny design of a community program must take into account the delicate balance between appropriate respect for and cooperation with the community on the one hand and the risk of ceding undue control to (or simply being perceived as having ceded undue control) to community members on the other.”).

[120]. The rhetoric of “zero tolerance” has been traced to Ronald Reagan’s escalation of the war on drugs. See Diana R. Gordon, The Return of the Dangerous Classes: Drug Prohibition and Policy Politics 199 (1994); Andrew B. Whitford & Jeff Yates, Presidential Rhetoric and the Public Agenda: Constructing the War on Drugs 55–63 (2009). Since then, policy makers have adopted “zero tolerance” policies in response to a broad array of public concerns. See Bernard E. Harcourt, Illusion of Order: The False Promise of Broken Windows Policing 2 (2001) (street crime and minor offenses); J. Richard Chema, Arresting “Tailhook”: The Prosecution of Sexual Harassment in the Military, 140 Mil. L. Rev. 1 (1993) (sexual harassment in the military following the highly publicized Tailhook scandal); Fairfax, supra note 69, at 1258 n.56 (domestic violence); Michael Pinard, From the Classroom to the Courtroom: Reassessing Fourth Amendment Standards in Public School Searches Involving Law Enforcement Authorities, 45 Ariz. L. Rev. 1067, 1069 (2003) (school violence); Cara Suvall, Restorative Justice in Schools: Learning from Jena High School, 44 Harv. C.R.-C.L. L. Rev. 547, 551 (2009) (“[Z]ero tolerance policies have expanded to include a wider range of student behavior including other violence, bullying, threatening, use of profanity, alcohol or tobacco consumption, and other offenses.”).

[121]. See supra note 84.

[122]. Goldkamp et al., supra note 97, at 7 (“[C]ommunity prosecutors can offer the legal expertise and authority to bring creative community policing solutions to fruition.”).

[123]. The Effect of State Ethics Rules on Federal Law Enforcement: Hearing Before the Subcomm. on Criminal Justice Oversight of the S. Comm. on the Judiciary, 106th Cong. 53 (1999) (testimony of John Smietanka, former prosecutor) (stating that “[t]ime, money and, to some unfortunate extent, a cultural chasm” prevent prosecutors from “meaningful participation” in bar activities); Stanley Z. Fisher, In Search of the Virtuous Prosecutor: A Conceptual Framework, 15 Am. J. Crim. L. 197, 208 (1988) (noting that prosecutors tend to be isolated from groups who might encourage empathy for defendants, while surrounded by populations “who can graphically establish that the defendant deserves punishment, and who have no reason to be concerned with competing values of justice”).

[124]. See Levine, supra note 34, at 1173–74 (documenting prosecutorial wariness of the “social work components” of California’s community-based Statutory Rape Vertical Prosecution Program).

[125]. See David Kennedy, Drugs, Race and Common Ground: Reflections on the High Point Intervention, Nat’l Inst. Just. J., March 2009, at 12 (2009).

[126]. Id. at 12–13.

[127]. Id. at 13.

[128]. Id.

[129]. Id. at 15.

[130]. Id. at 12–13.

[131]. Id. at 16.

[132]. See Lanni, supra note 94, at 362 (“The result [of community justice programs] is a two-tiered system in which minor and serious crimes are addressed through separate procedures with entirely different assumptions about what crime is and what punishment ought to accomplish.”); Levine, supra note 34, at 1173–74 (noting culture divide between traditional and community-based prosecutors).

[133]. See Lanni, supra note 94, at 362–63 (“There is . . . a plausible rationale for diverting minor offenders from the traditional criminal justice process . . . . But if the community justice movement aims to enhance the legitimacy of the criminal justice system as a whole by fostering popular participation and making law enforcement responsive to local community needs, community justice initiatives must address the crimes that make up the mainstream criminal docket.”).

[134]. See Thompson, supra note 4, at 361 (“Those informed by a vision of community prosecution believe that prosecutors should make regular efforts to learn from those they serve, to explain choices they may be considering or find themselves pursuing, and to hold themselves more transparently accountable for their policies, decisions, and record.”).

[135]. This two-tiered system might be seen as an application of Norval Morris’s philosophy of limiting retribution, which provides that the principle of just deserts should define the outer limits of an offense’s punishment, but that society may pursue utilitarian objectives within the permissible range. See generally Norval Morris, The Future of Imprisonment 73–75 (1974); Norval Morris, Madness and the Criminal Law 199 (1982); Norval Morris & Michael Tonry, Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System 84 (1990). The authors thank David Yellen for this point.

[136]. History of Community Prosecution, supra note 1.

[137]. See Bibas, supra note 84, at 911.

[138]. See Fairfax, supra note 69, at 1256–58; Medwed, supra note 84, at 177–78; Fred C. Zacharias & Bruce A. Green, The Duty to Avoid Wrongful Convictions: A Thought Experiment in the Regulation of Prosecutors, 89 B.U. L. Rev. 1, 18 (2009).

[139]. Davis, supra note 84, at 176–77; Bibas, supra note 84, at 949; Ronald F. Wright & Marc L. Miller, The Worldwide Accountability Deficit for Prosecutors, 67 Wash. & Lee L. Rev. 1587, 1589 (2010).

[140]. Sanford C. Gordon & Gregory A. Huber, Citizen Oversight and the Electoral Incentives of Criminal Prosecutors, 46 Am. J. Pol. Sci. 334, 336 (2002); Daniel C. Richman, Old Chief v. United States: Stipulating Away Prosecutorial Accountability?, 83 Va. L. Rev. 939, 963 (1997); Ronald F. Wright, How Prosecutor Elections Fail Us, 6 Ohio St. J. Crim. L. 581, 583 (2009).

[141]. Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science, 47 Wm. & Mary L. Rev. 1587, 1621 (2006); Findley & Scott, supra note 84, at 391.

[142]. Green & Zacharias, supra note 36, at 840–41, 902 (“Discretion pervades every aspect of [prosecutors’] work, including investigations, charging and plea bargaining, trials, sentencing, and responding to postconviction events. . . . The practical realities of the criminal justice system, including the sheer volume of cases that need to be disposed of, to a large extent require society to trust prosecutors to make decisions in the right way and on the right grounds.” (citations omitted)).

[143]. Id. at 902 (“Prosecutors would be far less effective if their work were transparent. Full transparency might also compromise the safety and privacy of agents, witnesses, and others.”).

[144]. Recommendation for Dismissal, supra note 63, at 1–3.

[145]. Green & Zacharias, supra note 36, at 903 (“Prosecutors’ limited public accountability might be acceptable, or at least more acceptable, if there were well-established normative standards governing prosecutors’ discretionary decision-making. . . . [There is] a need for deeper thinking by prosecutors and for a public articulation of clearer first- and second-order principles that can guide prosecutors’ decisions.”).

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5Sep

Community-Based Prosecution in North Carolina: An Inside-Out Approach to Public Service at the Courthouse, on the Street, and in the Classroom

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By: Ben David*

Introduction

I am a North Carolina prosecutor.[1] I speak for the dead in murder trials and dismiss registration violations in traffic court. I advise police officers in station houses and listen to cooperating criminals in holding cells. When a crime affects us all, I am the conscience for the community, and I give victims a voice at the courthouse. I have been given a vast amount of responsibility, and much is expected of me in return.

I am a graduate of Wake Forest University School of Law. Like most of my classmates, I went to work in private practice and was fortunate to work for a top firm that provided invaluable mentoring.[2] Three years into my legal career, I was able to pay off my student loans while also getting two jury trials under my belt. Like many fellow alumni,[3] I took to heart Wake Forest’s motto of Pro Humanitate[4] meaning “for humanity” and gave up the promise of financial riches in the private sector to become a public servant.

I am an elected official. I am required to simultaneously build alliances with power brokers while making sure that justice applies evenly to everyone without regard to political affiliation. The campaign trail has taken me to every quarter of my community, from million-dollar homes on Wrightsville Beach, to farms deep in rural Pender County, and to community centers in public housing projects.

Additionally, I am the president-elect of the North Carolina Conference of District Attorneys.[5] The Conference holds monthly executive committee meetings where we hear the concerns of the other forty-three elected district attorneys, and we are able to get a view of how justice is served across North Carolina. Like all district attorneys, I am keenly aware that our image has taken a hit over the last five years in both the courthouse and the court of public opinion. Following the Duke lacrosse case, we are in an era where prosecutors have seemingly been put on trial[6] as often as the defendants they are trying, and where criminal defense attorneys have dubbed themselves “advocates for justice.”

I sit on the Chief Justice’s Commission on Professionalism and have been asked to chair the mentoring committee. As many decry the loss of civility and training for new attorneys in our profession, Chief Justice Sarah Parker has realized that, as district attorneys, we often run the largest “law firms” in our communities. Few people have a greater opportunity to mentor law students and new lawyers and to help shape the face of the legal community than district attorneys. Additionally, few areas of the legal profession are in greater need of the best and brightest young lawyers than prosecutors’ offices.

The way forward for our profession, and specifically for prosecutors, is to embrace education and to move toward a model that puts the community at the center of everything that we do. We must remain deeply committed to individuals but must also look at the overall legal system. To be effective, we must be more than great trial lawyers—we have to be problem solvers.

At its core, community-based justice takes an inside-out approach to interacting with the community. As prosecutors, there is a dance we do with the people we represent—we are shaped by the community we live in and are also able to help shape that community by sending messages through policies, verdicts, and outreach efforts. While district attorneys are selected through partisan elections, our policies and actions should not be shaped by political considerations. Rather, we must stay loyal to our oath; our actions should be guided by upholding the law and doing what is right, and not by popular opinion or political pressure.

My district is unique in that there is a large geographic and cultural divide between the two counties I represent. New Hanover County has approximately two hundred thousand people, including many transplants from other places, but the county is the second smallest county in the state.[7] New Hanover County is bounded by beautiful beaches and a historic riverfront district and frequented by tens of thousands of tourists and college students at any given moment. Conversely, Pender County has roughly fifty thousand people, primarily lifelong residents, and is spread out over a large geographic, rural area.[8]

This Essay has two Parts. In Part I, I will explain how I work inside the system by keeping the focus on the community. As the courthouse officials with the greatest amount of discretion,[9] and as some of the only prosecutors in the country with calendaring authority,[10] North Carolina prosecutors have the opportunity to set the tone for their areas. Yet, that power must be shared and used gracefully as we build relationships with others at the courthouse and look holistically at issues to maximize effectiveness.

In Part II, I will focus on going outside the system to work with others in the community on issues that cannot be solved at the courthouse alone. I will highlight a great social issue that has been years in the making and is bigger than any of us: race and justice and disproportionate minority contact with the criminal justice system. It is a problem that can be confronted through a community-based approach that may offer some hope for bringing about long-term solutions. I will also explore how education holds the key to effective community outreach and the role that law schools could play in helping to shape the legal system through an outreach effort to district attorneys’ offices.

I. Inside the System

District attorneys do not represent individuals—we represent whole communities. Under the North Carolina Constitution, district attorneys are responsible for trying each district’s criminal cases as well as advising law enforcement officers.[11] Few people have a better opportunity to set the tone for their area than the district attorney. In my community of just over 250,000 people, there are over nine hundred officers in twenty different police agencies. These officers send five thousand felonies, twenty thousand misdemeanors, and fifty thousand traffic offenses across my desk each year.[12] That translates to thirty percent of the community coming into the courthouse annually. The manner in which these cases are resolved contributes to the public’s perception of justice in our area.

My office’s mission is to protect the public through fair and efficient enforcement of the laws. To achieve this objective, my office prioritizes cases to ensure that violent crimes and career criminals are our primary focus. Broadly speaking, we look for efficiencies within district court (where misdemeanors are handled) and superior court (where felonies are handled) to ensure that justice is swift and, when appropriate, severe. We work closely with law enforcement officers and other courthouse actors with the goal of seeing both defendants and victims walk away from the courthouse feeling that they were treated fairly.

To be effective, I cannot operate in a vacuum but have to reach out to members of the bench and bar. I know that our office belongs not to me, but to everyone who walks into the courthouse. Within a month of taking office, I invited the entire courthouse community—including judges, defense attorneys, bailiffs, and clerks—to the district attorney’s office for an open house around the holidays. To my surprise, this group not only accepted my invitation, but has come back every year since.

I have found that the essence of professionalism is civility. Opposing advocates in the criminal justice system serve different roles and purposes, but can exercise mutual respect in dealings. It is in everyone’s shared interest to leave battles at the courtroom door. The people in my office have attempted to keep an open dialogue, understanding that the vast majority of cases are resolved through plea negotiations where both sides need to be reasonable and have all the facts in order to resolve the cases.

We have also come to see that the problems we encounter cannot be solved alone. There are some issues where defense attorneys, judges, and prosecutors can find common ground—everyone wants justice, fairness, and efficiency. To confront these issues, I meet quarterly in a working group with the Chief District Court Judge, Resident Superior Court Judge, Chief Public Defender, and Elected Clerk of Court in a “Judicial Quarterly Review.”[13] The judges produce courtroom utilization statistics for the prior three months. County commissioners are invited to the meeting to hear from a sheriff’s liaison working in my office how inmates are monitored daily at the jail by a sheriff’s liaison working in my office. Demonstrating this accountability to financial stakeholders and showing our ability to work together to efficiently run the courts have made local funding for our justice system much easier to obtain.

One scholar has referred to community-based prosecution as the process of democratization and decentralization.[14] That is an apt description, as evidenced by the Judicial Quarterly Review. But to me, community-based prosecution refers to more than getting a group together to work on areas of shared concern. It involves being purposeful about how the public is brought into the system as witnesses, victims, and defendants. It also means being intentional about the messages that are sent back to the community through the handling of cases.

Let there be no confusion: district attorneys must remain independent when seeking justice. The notion of the “good old boys” network is an example of how collectively deciding justice at the courthouse can lead to abuse. However, there are instances where the district attorney should work with a larger group of courthouse officials, especially when it involves the efficiency of the system and the creation of specialty courts.

In my district, I have established, either independently or in the courthouse working group, a number of policies to put the public at the center of the process. This community-centered process occurs through the disposition of felonies at the superior court level, the resolution of misdemeanor and traffic offenses at the district court level, applying a mechanism for advising law enforcement, and finally, applying policies within the district attorney’s office to collectively carry out the mission of community-based prosecution.

A. Superior Court

In the purest form, the community is able to speak in the justice system through jury verdicts. Statewide, however, a significant majority of superior court cases are resolved through pleas or dismissals.[15] That means that the few, egregious cases that make it in front of juries must achieve the goal of sending clear messages. Our office is driven by the motto that we try the worst defendants who commit the worst crimes. That translates to trying defendants with serious criminal records and defendants who have committed offenses that have caused the most harm to individuals or society.

North Carolina is one of the thirty-two states where crime victims have a bill of rights imbedded in the constitution.[16] Being responsive to these victims is a high priority for the victim/witness legal assistants (“VWLAs”) and the prosecutors who work in my office. When a violent crime occurs—like rape, armed robbery, or serious assault—my office moves quickly to reach out to victims and give them a voice in the process. This does not, however, mean giving the victims control. We take the responsibility to remain objective and occasionally be the bearers of bad news (such as when a case has to be pled down or dismissed, or alternatively, when we insist on going forward when a victim is reluctant to do so) in order to see that justice is served. This is particularly true in murder cases where the victim is not available to speak for him or herself. Homicide prosecutions are far more likely to go to trial than other types of offenses because the stakes are so high.[17]

It is not only the defendants in homicide cases who receive the highest priorities in my office; the family members of the deceased are also a high priority. To shepherd them through the bizarre and unfamiliar process of a trial, we established the Homicide Family Support Group.[18] The group gathers monthly with the prosecutors who handle the cases in a meeting that is one part informational and nine parts therapy. No one is in a better position to counsel a grieving family who recently experienced the loss of a loved one through a brutal murder or vehicular tragedy than a family who had a similar loss and went through the court process. Prosecutors and VWLAs are there to answer general questions about the road ahead without discussing the confidential, specific facts of each case until individual meetings. When the cases go to trial, it is not uncommon for the whole group to attend in support of the family. Immense healing takes place and trust is built during these meetings. This program is now being replicated throughout the country.

Murder cases are often high-profile cases that receive public scrutiny. Nevertheless, for victims whose cases do not receive media attention, our duty to seek justice is just as important. Just as no one is above the law, no one is beneath its protection. While it has frequently been said that “bad things happen to good people,” we far more frequently encounter victims who were engaged in criminal conduct at the time of their victimization. When a prostitute gets raped or a drug dealer gets killed, it is our responsibility to reach out to these victims and their families just as we would any other victim of crime. As will be discussed in greater detail, victims and witnesses are far more likely to come forward if they know that they can get justice at the courthouse regardless of their status. Simultaneously, we hope that the community, through its verdicts, comes to uphold the principle of equal protection under the law.

We also identify drug traffickers and dealers for vigorous prosecution. While the consensual sale of illegal substances may seem, on the surface, to be a victimless crime, the reality is far different. Apart from the fact that many users ultimately destroy or end their lives through drug use, the community immediately surrounding the drug trade often suffers collateral damage. This is especially true in economically depressed areas and public housing projects.[19] My office views these neighborhoods not as “high crime areas” but as “high victim areas.” Drugs are the fuel for the engine of violent crime and often lead to turf wars, armed home invasions, and the formation of street gangs. These secondary consequences of the drug trade can destroy whole neighborhoods.

My office not only seeks maximum justice in state court for these cases but, where appropriate, takes these cases into the federal system. Five years ago I formed a partnership with the United States Attorney for the Eastern District of North Carolina, George Holding,[20] to apply for grant funding to allow my office to hire a senior prosecutor to be cross sworn to handle drug cases in the federal system. The success of this partnership has been dramatic from the standpoint of prison years for serious offenders and the amount of weapons and drugs removed from the street. Not only has the grant been renewed each year but the program is now being replicated by other district attorneys throughout the three federal districts of North Carolina.

B. “H and I” Court

There are a great number of felony cases involving defendants who are not bad people, but rather, people who have made bad choices or have substance abuse problems. For these nonviolent cases, usually involving property offenses and drug possession, the best disposition may not be found in superior court. North Carolina established a law to resolve these low-level felonies in a special district court, without the need for indictment.[21] Not all districts employ this court, sometimes named the “H and I court” after the classes of eligible offenses, but our district would scarcely be able to operate without it.

When one of the over five thousand felony cases comes to district court for a first appearance, every file is looked at by one of two career prosecutors who have a combined experience of over fifty-five years in our district.[22] If the case clearly calls for grand jury indictment, the case is diverted to the rest of the team in the superior court division. The remaining cases, typically over two thousand each year, are resolved in felony district court.[23]

There are two large benefits from the H and I court. First, efficiency is greatly increased as minor cases bypass the grand jury, and superior court prosecutors are able to focus their time and resources on the violent and career criminals. Second, many of the defendants whose cases are resolved through H and I court are given a chance to have either a misdemeanor or deferred prosecution that might not impair their ability to be productive members of society.[24]

C. District Court

District court is frequently referred to as the “People’s Court,” and for good reason. Every year thousands of cases come through the door, including minor traffic offenses, property offenses, underage drinking, and assaults. Nearly all of these cases are initiated by police agencies, though North Carolina law allows for private citizens to charge each other.[25] Assistant district attorneys encounter hundreds of cases each day and have to make quick decisions about how the community gets justice. Setting priorities and managing time become central to effective prosecution in district court.

There are two classes of misdemeanor cases that kill people: impaired driving and domestic violence. In the Fifth District we average over three thousand driving-while-impaired (“DWI”) cases annually and over one thousand cases of domestic violence, in addition to over seventy-five thousand other cases.[26] Because these cases go to trial before a district court judge far more often than other types of cases, ensuring court time for these cases is challenging.

To help alleviate the problem of overcrowded dockets we filter out all of the minor traffic offenses. In 1999, when I started as an assistant district attorney in New Hanover County, we implemented an “Administrative Traffic Court”[27] to handle compliance-based offenses (such as registration or inspection violations), moving violations (such as speeding or running a stop sign), and traffic accidents. The court meets every Friday morning and handles anywhere from eight hundred to twelve hundred cases. No judge sits on the bench and no officers are subpoenaed to court; instead, several prosecutors and VWLAs join with deputy clerks to encounter the masses. In keeping with the priority of convicting the worst defendants, officers are advised not to set cases in traffic court that involve defendants with bad criminal histories or involve serious moving violations (such as DWI, driving during revocation, or reckless driving).

In traffic court, defendants are told that if they would like to contest their cases, or if they would like an attorney, the state will continue their matters to the officer’s court date. Otherwise, they will be treated no differently than if they had a lawyer. Depending on the violation, compliance-based offenses are typically dismissed upon proof of the driver having his car registered or inspected. Those accused of moving violations are either sent to driving school, with a special emphasis on educating young drivers,[28] or dealt with through a disposition that allows defendants to pay fines and court costs. Depending on their records, defendants charged with traffic accidents will either have their cases dismissed or be sent to driving school if they provide proof of insurance. The vast majority of the community leaves court having had their cases disposed of within mere minutes (as opposed to hours if they were in district court), without the need for an attorney, and with the view that they were treated fairly. The court has proven so successful that it became the law in October 2011.[29]

Because there is now more court time available to hear impaired driving cases, our district has set up a DWI court. DWI cases either go to trial or plea because of our “no drop policy.” As an additional issue, many defendants charged with these offenses have substance abuse issues. We understand the reality of alcohol and drug abuse and the need to treat abusers rather than just incarcerate them, and have therefore sought to set aside time to bring in habitually impaired drivers and their family members to resolve their cases in a way that focuses on long-term probationary sentences. This approach should not be viewed as going easy on crime—defendants who are convicted of impaired driving offenses will only serve about thirty days of a two-year sentence under current Department of Corrections policy.[30] Rather, this approach protects the community through a focus on long-term treatment that may actually end the cycle of abuse.

Treatment courts understand that defendants with underlying substance abuse issues will continue to go through the revolving door of the criminal justice system if their dependency issues are not addressed. Every two weeks, defendants stand before the same district court judge and, together with their probation officers, give an update on the defendant’s work history, treatment sessions, and drug test results. The court often shows great latitude, but to get the defendant’s attention, the court may give defendants short jail sentences without revoking their probationary sentences. After one year of living drug or alcohol free and complying with all of the standard terms of probation, defendants “graduate” from the program in an elaborate ceremony celebrated by all participants. Judges and prosecutors have become so convinced of the value of this program that when state funding for the program was cut for the 2011-2012 fiscal year, county funding was obtained to continue the drug court’s operation.[31]

Domestic violence cases are among the most difficult in the court system. Interfamily violence often remains hidden and is frequently only discovered after a major crime of violence occurs. In 2004,[32] I created a family violence unit in our office that consists of two full-time prosecutors and a VWLA working with three detectives who are housed within the same office. Victims are told about our unit when they go to the courthouse to obtain a civil domestic violence protective order. Victims are counseled about the availability of a twenty-four-hour domestic violence shelter, and detectives investigate whether criminal violations have occurred. The unit is on hand to follow up with photographs of injuries and collect physical evidence to preserve for future use at trial. Following up and following through on these cases—especially with reluctant victims—has greatly increased law enforcement’s ability to hold offenders accountable and to prevent future, possibly more serious interfamily violence.

District court is also the venue for resolving juvenile offenses. The severity of some of these crimes, including rape and murder, requires prosecutors to bind juveniles over to superior court to be tried as adults. North Carolina is one of only two states where sixteen is the age of juvenile jurisdiction, so binding a young person over is rare, even with the most serious offenses.[33] Far more common are cases, even involving young adults attending area high schools and colleges, which scream to be resolved through teachable moments that should not lead to a criminal record.[34] For first-time offenders of nonviolent misdemeanors, we created Teen Court in 2000. Cases are diverted from the juvenile justice system and put in Teen Court where every participant, including the prosecutor, defense attorney, and members of the jury, is also a teenager. The only adult in the process is an attorney serving as the judge. To qualify for Teen Court, the defendant must admit liability so that the “trial” is really a protracted sentencing proceeding where the jury is given a range of options for a community-based punishment. The numbers show that Teen Court has reduced recidivism and allowed many young people to learn about the justice system through a positive experience.[35]

While we work hard not to sacrifice effectiveness in the name of efficiency, we have put systems in place in the Fifth District to move the community through the courthouse so that minor cases may be resolved without tying up the time of judges, officers, and juries. Court time in the district and superior court divisions is reserved for cases where justice cries out for a full airing of the facts in an open courtroom. We temper justice with mercy and, where appropriate, place people on probation or defer prosecutions to keep their records clean. In both treatment courts and administrative traffic court, our goal is to resolve underlying problems rather than brand a citizen a criminal. For the defendants and offenses where that is not possible, we use our time and energy to impose the full measure of the law.

D. Law Enforcement

As the “top cop” in the district, the district attorney has a great opportunity to shape the policies and procedures of the police agencies through the constitutional mandate to advise local law enforcement.[36] In the Fifth District, there are over nine hundred sworn law enforcement officers in twenty different police agencies. While many of these agencies have embraced the emerging national best practice of community-based policing,[37] I will briefly focus on the relationship that I try to maintain with members of law enforcement as we jointly uphold our respective oaths of serving and protecting the public and defending the North Carolina Constitution.

First and foremost, constant communication is vital in order to have our priorities on the street translate to priorities in the courtroom and vice versa. To that end, I personally hold monthly lunches with the heads of all police agencies to give them legal updates, hear their concerns, and keep the lines of communication open between all the agencies. Second, we employ technology to get daily updates about arrests from the night before through “Watch Commander’s Reports.” Prosecutors use this information at the first-appearance stage to assist in setting bonds and calling for follow-up discovery. Finally, law enforcement liaisons within my office call officers in emergency situations, or have them on standby, in the event they are needed for trial so that they can remain on the street until they are needed.

We employ a police-and-prosecutor team approach to fighting crime. All officers have the contact information of my senior assistant district attorneys. They can call at any time to get legal advice on substantive charges and procedural issues that arise in the course of their investigations and arrests. I have a district attorney investigator who is sworn to assist the police agencies with follow-up investigation and to bridge the gap between the probable cause for arrest and the proof beyond a reasonable doubt necessary for a conviction. Additionally, prosecutors and investigators in my office visit crime scenes and go on ride-alongs to see firsthand the conditions on the street.

Training is also an essential component, and we attend lineups and conduct mock trials for basic law enforcement training. A push is currently in place to have elected district attorneys and senior assistant district attorneys become certified as law enforcement instructors.[38] Teaching officers good habits at the beginning of their career engrains in them the culture of doing justice and not simply convicting at all costs. It is unquestionably better for the system if defendants’ rights are upheld at the time of search and arrest rather than if evidence is suppressed—and the community’s confidence compromised—because of an unconstitutional application of the law.

Despite the close working relationship between my office and law enforcement, we must always assure the community that we are independent agencies with separate functions. When an officer has “tarnished the badge” by committing a crime, he is prosecuted by my office in the same manner as any other defendant. Off-duty criminal conduct by officers is not tolerated by either my office or the larger law enforcement community, and those defendants receive no preferential treatment.

When an officer commits a crime or becomes the victim of a crime in the performance of his or her duties, public scrutiny becomes especially intense. In these types of cases, which typically involve use of force or high-speed pursuit, a certain Bermuda Triangle is formed between the district attorney, the officer and his colleagues, and the community, as perceptions form over whether justice can truly be done. Different factions may scream for leniency or maximum punishment, reactions based more on agendas and relationships than the facts of the case. In these situations, the key for building and keeping trust among all parties is to remain independent and transparent while maintaining a commitment to doing the right thing.

Protocol never changes for cases that involve the law enforcement family. When an officer is the victim or defendant in a serious felony, I call for an outside investigation by the State Bureau of Investigation (“SBI”). If felony charges are to be lodged against an officer, they come not from prosecutors but from the grand jury.[39] The same is true when a defendant is charged in the death of an officer.[40] While these cases divide the community, it is the community who ultimately speaks through its verdicts. Finally, when there are no charges and no grand jury is impaneled, I release a detailed synopsis of the investigation to the press and invite a member of the deceased’s family and his or her attorney to review the complete file and interview the lead SBI agent.[41] While it would be easy to duck from the responsibility of handling these controversial cases, I personally involve myself in their prosecution and only refer the case to an outside prosecutorial authority in extraordinary circumstances.[42]

Ultimately, cases are only as strong as the investigations brought to the courthouse. Therefore, it is vitally important for prosecutors to be engaged in the training of police and to maintain an open line of communication with them. This close working relationship cannot, however, degrade the independence that each agency must have in the performance of its respective duties. When officers enter the criminal justice system as victims or defendants, the community must be put in the middle of that relationship in order for public trust to be maintained. Finally, the community is made a partner in finding solutions to the problems that police and prosecutors encounter in their jobs

E. Inside the District Attorney’s Office

The district attorney’s office in the Fifth District is actually the largest “law firm” in our area. In fact, you would have to travel two hours up the road to New Bern or to Raleigh to find a larger collection of lawyers in one office. With just over forty people, evenly divided between attorneys and staff, our policies and practices help set the tone for the larger legal community—a group of over seven hundred attorneys in Wilmington alone.

Getting everyone in my office on the same page of community-based prosecution is a purposeful effort that takes many forms. First, we employ a philosophy that respects everyone’s views in the office, regardless of status or level of experience. We run on the principle that “nothing is above you and nothing is beneath you.” That means that both the most senior assistant district attorney and the newest VWLA are expected to be responsive to the public by returning calls the same business day, fielding citizen concerns and complaints as they arise, and engaging with all aspects of our community. It also means that there is no hierarchy in taking on a terrifying amount of responsibility in big cases.

To give everyone a shared sense of the mission of the office, everyone reads and signs an eight-page employee manual that lays out our expectations. Employees are reminded that they represent the office at all times—at work during the business day, at home, and out in the community when the work day is over. We enforce five core values: respect, honesty, responsibility, transparency, and trust. Everyone rereads and signs this manual annually just before he or she receives a yearly employee performance appraisal.

On Monday mornings I hold a weekly meeting with the entire office to give individuals the opportunity to share information with the larger team. The meeting begins with the assistant district attorneys and VWLAs giving a summary of the cases they resolved, through trial or plea, from the week before. I have found that this gives the whole office ownership of these cases and gives accountability to the individuals who handled each case. Praise is given in public, and any problems that surface during this process, such as courts breaking down early or unacceptable handling of cases, are addressed in private. We also look at the week ahead and discuss the cases and events in the community that everyone should anticipate. People step up to cover different courts or community events so that everyone in the office stays connected to the idea that he or she individually has a stake in the whole.

I also hold a Thursday morning meeting with the attorneys to prevent silos from developing and discuss issues with calendaring and court coverage. There are six work groups by case type: violent crimes, drug offenses, property and financial crimes, motor vehicle offenses, sex crimes, and domestic violence. The attorneys also jointly analyze the legal complexities that arise in some of their cases and seek each other’s advice. Cases are sometimes reassigned at these meetings, or someone may volunteer to be a second chair to assist with trial preparation. Attorneys take ownership by understanding that all the cases belong to the office and at any time they may be called on to handle, or assist in handling, a matter even if it falls outside their assigned areas.

Managing attorneys is a notoriously difficult task. While some have referred to it as “herding cats,” I believe it is, as former President Bill Clinton said of being president, more like “running a cemetery; you’ve got a lot of people under you and nobody’s listening.”[43] I respect the views of coequal professionals and do not bog them down with numerous written policies or micromanagement by senior staff. Instead, everyone is vested with a large amount of discretion, and he is told that he should not act unless he would feel comfortable explaining his actions (such as plea offers he has made or advice to law enforcement he has given) to the community we all represent.

The lifeblood of my office is the people who work in it. To recruit the best and brightest attorneys and staff, my office is very intentional about the intern program we have established. Years ago I partnered with the local university, University of North Carolina Wilmington, to allow third- and fourth-year students to obtain course credit if they extern for 150 hours a semester in our office. Each fall and spring semester, college interns are paired with individual VWLA mentors to carry out support staff tasks. Many alumni of this program have gone on to law school or have been hired by our office as full-time employees upon graduation.

For law school students, we have set up a summer internship program that brings a mix of rising second- and third-year students. Second-year law students are partnered with assistant district attorneys at the superior court level and assist with case preparation and legal research and writing. Third-year law students get certified for the third-year practice and are partnered with assistant district attorneys at the district court level to assist in running the court. Third years are also able to try some misdemeanor cases. Because of the great demand for our intern program, and so that students’ experiences are not diluted—we have divided the summer into two sessions and have no more than ten law students working in the office at any given time. Most of my assistant district attorneys have come through this program, and at least ten former interns have found placement in other districts.

We try to connect the undergraduate and law student interns to the larger courthouse working group and community we serve. At the beginning of the summer, for example, I host a welcome reception in my backyard where students are able to mingle with judges, clerks, law enforcement officers, and defense attorneys before they begin their work. Throughout the internship experience, we also send students on field trips to see the larger community. These experiences include going to the jail, traveling to the SBI crime laboratory in Raleigh, touring a local drug treatment center, meeting with court advocates at the domestic violence center, and going to a shooting range with sheriff’s deputies.

Just as it is vitally important for prosecutors to stay connected to others inside the system, it is at least as important for prosecutors within an office to stay connected to each other. Being intentional about recruiting, retaining, and training has made it easier to promote the community-based prosecution model that I employ in the office. Focusing on education allows my prosecutors to stay connected to the officers we advise through cross training and legal updates. It also allows my prosecutors within the office to focus on the fundamentals of our profession and stay abreast.

Education is also the cornerstone of the work we do outside of the criminal justice system. Ultimately, the biggest issues that confront prosecutors in the community are often solved or prevented in an educational setting. It is to those efforts that I now turn.

II. Outside the System

As a district attorney, part of my job is crime prevention. To achieve this end, I try to meet at-risk youth where they live and have a conversation about choices and consequences before they get in trouble. For victims, I encourage them to report their victimization to help break cycles of violence.

Community outreach is not a task that I do alone. Every one of my employees is allowed to take every other Friday afternoon off if he or she volunteers two hours each week to work with individuals who are, or might be, potential victims or defendants. On nights and weekends, members of my office serve in roles as diverse as being basketball coaches, being reading tutors, or answering calls at the twenty-four-hour rape crisis hotline.

We also target certain areas of our community for increased enforcement. Take, for example, the downtown tourist area on the River Walk of the Cape Fear River. With eighty bars, shops, and restaurants packed into a central business district that spans only a few blocks, it is easy to predict that there will be crime. Preventing an impaired driver from causing fatalities through checkpoints pays immediate dividends.[44] Bars that become crime magnets for repeated violations, such as underage drinking and bar fights, receive a letter from me that they are being monitored.[45] If the lawlessness continues, I file a suit in civil court to close them down.[46] This active participation in enforcement efforts has led to a large decrease in crime in our central business district.[47]

For the cases involving societal ills like domestic violence, sexual assaults, and child molestation, underreporting is a problem. Breaking the well-documented cycle of abuse is at the core of my prevention strategy. Left unchecked, the abuse continues and ultimately gets perpetuated onto the next generation. Local efforts to break this cycle and establish a support network to bring these cases out of the shadows and into the sunlight receive my full attention.

Community outreach should be distinguished from attending political functions or becoming active only at the height of a political season. On the contrary, winning public confidence is not an event; it is a process. This is a new day in North Carolina where many of the elected DAs are constructing their offices from the ground up.[48] The modern trend is for us to be less political, not more.[49] Party labels should matter no more for the DAs[50] than the political parties of the victims and defendants who come through the system. The fact that I have been unopposed in the last two elections is the ultimate vote of confidence and confirms that my office’s outreach efforts transcend the political arena.

Outreach at local schools is also important. Since being elected district attorney, I have made yearly visits to every public middle school and high school in my district to talk to the students about being responsible and doing the right thing. Eighth graders hear about bullying, dangers on the Internet, and saying no to drugs. Twelfth graders also hear about some of these subjects, especially drug laws, while also receiving a good dose of real-world perspective regarding the laws surrounding driving and relationship violence. I also devote several nights each year to meet every incoming freshman at both the University of North Carolina Wilmington and Cape Fear Community College to welcome them to a new community and introduce them to the expectations we have for them as adults. While the content may vary based on the age of the crowd, my theme of being a leader is unwavering, and I try to give concrete examples that my audience is likely to encounter and encourage students to report crimes. If students are being bullied at school or being touched inappropriately at home, they must report it. If they have stumbled across an online predator, they should not try to ignore it; they must tell a parent.[51] Many have responded by reporting their victimization or that of others following our talks.

Through this outreach effort, I have attempted to encourage young people to take ownership in their community and to be involved in their own safety. I have been amazed by their leadership and willingness to reach out for help, instead of suffering in silence, when they have been victims and witnesses. But sadly, I have seen that with these young people, and their parents and grandparents too, there remains a broad category of unreported crimes that never reach the criminal justice system.

Street-level crime—from drug dealing in open-air transactions, to violent crime and gang activity—still goes largely unreported. In the “stop snitching culture” that pervades our inner city, today’s victim (for example, a victim who is shot in the leg for dealing on the wrong corner or wearing the wrong colors) becomes tomorrow’s defendant as he seeks vigilante justice in retribution for his earlier victimization, perpetuating a seemingly never-ending cycle of violence. The victim’s silence at the hospital speaks loudly about the mistrust he has in the justice system—a system with which he has likely had personal experience and a system that has likely incarcerated members of his family. For this victim-turned-bounty hunter, his view is simple: if he cannot find justice at the courthouse, he will look for it in the street.

A. Race and Justice: Confronting the Sleeping Giant

The D.A. is inevitably in daily collision with life at its most elemental level. His job is somewhat akin to that of a young intern on a Saturday night ambulance call: he is constantly witnessing the naked emotions of his people—raw, unbuttoned, and bleeding . . . . By virtue of his job the D.A. is the keeper of the public conscience . . . .[52]

Some years ago, after a racially charged killing occurred in my community, I asked my sheriff to look at the people who were incarcerated at the New Hanover County Jail. We found that of the 520 inmates, 54% were African American.[53] That was three times what would be expected if the county-wide demographic of 18% African American held up on a one-to-one correlation. A look at serious crimes of violence made me only more disheartened. Of the pending 34 murder cases, 30 involved African American defendants. The numbers were equally staggering for assaults with a deadly weapon (25 total, 16 African American); sex crimes (29 total, 13 African American); armed robbery (40 total, 28 African American); and drug trafficking offenses (37 total, 22 African American).

These numbers are alarming for many reasons. First, there is a theory that defendants tend to pick victims that look like them,[54] and this theory would suggest that if most of the defendants in the system were from a particular minority group, so too would be the victims of their crimes. This dread was confirmed: of the 30 aforementioned African American murder defendants, 29 of their victims were African American as well.

Another reason for concern is that African Americans are underrepresented in the criminal justice system. The majority of attorneys, judges, and law enforcement officers are white. Any trust issues that underscore this divide could result in underreporting of crimes if African American victims do not feel that the justice system is at work for them.

What do we do when the population most affected by crime does not want to participate in the criminal justice process? As Attorney General Eric Holder recently suggested, maybe we are not taking any risks at all.[55] But if those of us in the system believe, as I do, that we have a duty to speak the truth to our community in the same way we speak the truth in court, then something must be done. I will now discuss the two ways a district attorney can reach out to the community to confront this issue: first, an approach that does not work, and then an approach that does.

B. Agenda Driven Outreach: Playing Politics with Cases

On a beautiful spring day in April of 2007, the relative calm of Easter weekend was thrown into turmoil with the loud popping of gunshots on the north side of Wilmington.[56] For the crowd that gathered outside the Creekwood Housing Community, a public housing complex where crime has run rampant for years, the early stages of a cover up appeared to be in the works. On the ground was the naked and lifeless body of Phillipe McIver, a young African American man with an extensive criminal record. Two armed, white Wilmington Police Department officers stood over him. As officers patiently waited for SBI agents from outside the city to arrive to handle the investigation, some members of the crowd began firing shots into the air. A police tactical team had to come in and disperse the crowd.

Fear hung in the air in the days that followed. Rumors swirled that there might be city-wide riots. Marches took place. Some walked with signs that read “Just Us” to refer to the prospect of getting “justice” against cops. And at the height of it all, a group of concerned citizens came to me with a plea to pursue the officers to the fullest extent of the law. These leaders were men and women whom I had admired: heads of the NAACP, of which I am a member; pastors and bishops who preside over huge congregations of law-abiding citizens; and political allies who helped me get elected. In the middle of the group was a woman who had just lost a son, Ms. McIver. I spoke with Ms. McIver and asked her to join me in calling for calm. Together, we held a press conference to call for calm. And for the moment, everyone listened.

If there was ever a time for using a case as an opportunity to build trust with a disenfranchised segment of the community, this was it. Here was an opportunity not only to get justice for Mr. McIver but for all other similarly situated victims who did not have a celebrated case attached to their names. The community was, and would be, watching. The group of leaders who had come to my office wanted me to send a message they had heard me say many times before: no one is above the law, and no one is beneath its protection.

There was only one problem with prosecuting the officers who fired the lethal shots—they were innocent of any crime. The shooting, as our investigation showed, was justified. In-car cameras captured the events, and toxicology tests later confirmed that McIver was high on “love boat,” a combination of marijuana and formaldehyde, and sitting naked in the street, blocking traffic at the time officers approached him.[57] As they attempted to remove him from the road, McIver wrestled one of the officers to the ground, removed the officer’s service revolver, and began shooting at him at point-blank range. The other officer then shot and mortally wounded McIver in defense of his partner. Both officers then secured the scene, including removing the weapon from McIver’s hands, before the crowd came.[58]

Prosecutors must start with the facts and not theories. When they start with agendas and theories and then bend the facts to suit those theories, the results are disastrous. At the very moment that I was handling the McIver case, another district attorney was having a similar discussion with his community about race and justice just up the road in Durham, North Carolina.

Durham’s district attorney, Mike Nifong, was embroiled in a political race, and many have speculated that his rush to judgment in seeking an indictment against four white Duke University lacrosse players accused of raping an African American entertainer had more to do with pandering to his base than getting justice.[59] What would become clear over time is that Nifong had not properly vetted the case nor had he done the necessary background investigation prior to publically staking himself to a position. Instead, he began a community quest to slay the larger giant using the well-established teaching tool of the case method.

North Carolina prosecutors, especially other elected district attorneys, watched the train wreck in horror. Some of the more senior elected district attorneys offered to take over once it was apparent that Nifong could no longer remain objective.[60] When Nifong did not accept this advice, the Executive Committee of the North Carolina Conference of District Attorneys, of which I am a member, took the extraordinary step of writing an open letter to Nifong calling for him to step aside in the interest of justice.[61] Nifong’s subsequent disbarment made international news.[62] The damage, in our view, was detrimental not just to Nifong but also to everyone in the criminal justice system, especially prosecutors. Ultimately, the case has become synonymous with district attorneys playing politics and trying cases in the media instead of at the courthouse. As I noted earlier, ethics violations filed against prosecutors have increased ten-fold since this case.[63]

Prosecutors are not the only ones who play politics with cases, however. One need not leave the campus that gave rise to the Duke lacrosse scandal to see another example of how some exploit race to manipulate an outcome in a criminal case. In September of 2004, the Center for Death Penalty Litigation, led by an adjunct faculty member at Duke, sought to have a recent death penalty conviction I had obtained a week earlier overturned on the grounds that I tried the case for political motives.[64]

At the time the motion was filed, I was running against three defense attorneys in a special election to replace the retiring district attorney. The election was to take place two days after the motion was filed. The motion, which was sent to the press and passed around the African American community, accused me of being racist and compared me to a former district attorney from the same district who had lost his job after uttering a racial slur.[65] The motion was heard three months after the election by the same superior court judge who presided over the trial. In a scathing eight-page order, following a four-day hearing, Judge Jerry Cash Martin found that the motion was “blatant political sabotage.”[66] The professor who lodged the allegation was fired, and Duke has since severed connections with the Center for Death Penalty Litigation.[67]

It would be nice if the recent painful history of mixing race, politics, and the death penalty was in the past, but that is not the reality. Recently, a new debate has been waged over the Racial Justice Act.[68] While the Act has a laudable title, the application has been disastrous. District attorneys have united against it, risking condemnation and being labeled as racists by advocates more interested in abolishing the death penalty than ensuring justice in individual cases.[69] Sadly, the chasm that has been created between district attorneys and the communities we represent, especially the African American communities, has grown as this emotional issue has been exploited for political purposes.

C. Elevating the Conversation: The Professor and the Gospel Singer

As I was deciding how best to address the larger community discussion that was taking place in Wilmington over the McIver shooting, I traveled to Durham to see my mother. She lived five houses from the Duke lacrosse house and was closely following the case. When the opportunity came to attend a public forum hosted by her alma mater, Duke University, she quickly registered and invited me to attend with her.

While Nifong had launched his own effort to “heal Durham,” Duke embarked on a similar quest using a much different approach. In an effort to create a community-based discussion around the thorny issue of race and justice, Duke enlisted the assistance of Professor Tim Tyson. Dr. Tyson, who is white, majored in African American studies and has gained a national reputation for writing about the civil rights struggle both in learned treatises and in novel form.[70] The son of a preacher,[71] Dr. Tyson approached the issue of race relations with a fervor that bordered on religious zealotry and considered equality for all people to be a moral imperative.

Dr. Tyson’s approach was cutting edge and bold in its execution. Instead of having an academic lecture on Duke’s campus (that few would likely attend), he opted instead to teach a “class” of three hundred students,[72] diverse in every respect, at the Hayti Heritage Center, a historic African American church. One hundred community leaders, including my mother, were also invited to audit the eight-week offering that would explore the history of race and justice in Durham in three-hour sessions. One night might have been devoted to the Greensboro sit-ins while another night might have involved relations in Durham during the World War II era. At the end of Dr. Tyson’s talk, which usually lasted about an hour, he would moderate a panel of local leaders who would provide their own first-hand accounts. A third hour was devoted to either an open microphone discussion with the whole class or breakout sessions in small work groups for community-based action on current issues.

To underscore the point that the purpose of the gathering was not merely an academic exercise, Dr. Tyson elevated the conversation by inviting a gospel singer to teach the class with him. Mary Williams, with a powerful singing voice reminiscent of Aretha Franklin, could take over the room from the moment the class began. With a force that has to be experienced to fully appreciate, Ms. Williams drew everyone into singing well-known songs from the civil rights struggle and hymns from the slave era. When the songs were finished, Williams began a lecture about the oral history that was transmitted through the music. In doing so, she peeled back the secret codes and buried lessons in a different way of learning that inspired the crowd in a way that Dr. Tyson could not do alone.

Within minutes of watching the class, I knew that I had found a much better vehicle to engage in community outreach in Wilmington. Over the next several days, I met with the same leaders who had come to my office after the McIver shooting. I encouraged them to come with me to Durham to see firsthand what I had witnessed and rented vans to bring sixteen of them to the next class. All were similarly impressed and agreed to approach Dr. Tyson and Williams about replicating the class in our community. Both were excited by the opportunity and intrigued by the idea of working with a district attorney on the issue, rather than working to undo the damage a district attorney was causing. Both said yes.

Dr. Tyson grew up in Wilmington, witnessed its racial history firsthand, and became a celebrated author in chronicling it.[73] Going back over one hundred years, a great divide had been created in our community along racial fault lines. While once a shining example of racial equality in the Jim Crow South, the city’s black middle class was run out of town in 1898, and black elected leaders were forced to resign at gunpoint in the only coup d’état in American history.[74]

Seventy years later, tension again boiled over when African American students were relegated to second-class citizenship when their school, Williston High School,[75] was closed to comply with desegregation laws brought about by Brown v. Board of Education.[76] The race riots that followed that painful chapter of Wilmington’s history spawned the celebrated case of the Wilmington Ten, in which African American defendants were initially convicted of firebombing a white-owned grocery store and then were later pardoned by the governor.[77] While much of this history was never documented in school textbooks, it was handed down in an oral tradition, especially in the African American community in Wilmington, which left a lingering mistrust of established power a century later.

The group that went with me to Durham was called the “Big Picture Talkers.”[78] Our goal was to bring together the unofficial leaders of the community—public educators, pastors, and heads of nonprofit agencies. We were not looking for an event but for the beginning of a process, one that would reflect the words of the mission statement: we are committed to bringing together a new multicultural community in order to create a space and the time to dissect, discuss, and confront Wilmington’s racial history. Furthermore, we wanted to attempt to understand history’s persistence in the present and its possible effects in the face of the future. Our purpose was not only to wallow in our city’s painful history but also to celebrate its many triumphs and highlight the incredible achievements of our residents.[79]

The class we created, “The History of Wilmington in Black and White,” was held in the old Williston High School building to underscore its historical significance. First-year attendance numbered over three hundred, all from the community—as opposed to just from the local colleges. Now going into its fifth year, our goal is to have one thousand graduates. The class is funded through grants from the Z. Smith Reynolds Foundation and is run through the YWCA.[80] The friendships that have formed out of this shared experience survive the end of a semester, and the relationships formed have turned into community action. As a result, people inside and outside the criminal justice system affect change in our community.

The Big Picture Talkers, like Dr. Tyson and Williams, recognized the incredible organizational power of the church, especially in the African American community, as a way of spreading the message of reconciliation and elevating the debate beyond the political realm. The pastors who I had befriended and who helped keep the community calm following the McIver shooting knew the power of the truth: murder is the leading cause of death in North Carolina for African American males under the age of twenty-four, and they are 4.5 times more likely to die of a homicide than their white counterparts.[81] The pastors looked at crime prevention as a moral issue. As Pastor Rob Campbell of New Beginnings Church in Wilmington has said to me, these are not black children or white children dying in the streets of Wilmington but “God’s children.”

The clergy also knew that their congregations were the most segregated part of our community.[82] They committed to leading by example to help end the divide by hosting each other’s congregations in their respective churches. Results were celebrated. Eight pastors from some of the most established churches, four white and four African American, formed a joint bible study to give “The History of Wilmington in Black and White” students yet another way to learn from each other and form a bond.

In time, the various congregations adopted a home through Habitat for Humanity to construct together. Additionally, one of the established congregations donated the resources of its church. The congregation had recently purchased the building that formerly housed the county jail and turned it into an outreach center for gang prevention and work placement for the homeless.[83] In short, these pastors put their faith into action and became great allies for the community—an outcome that no verdict alone could deliver.

D. Bringing Leaders Together: Ideas Into Action

The judges, defense attorneys, deputies, and elected leaders whom I worked with to improve courthouse and jail efficiency wanted to break the cycle of violence where street-level crimes were going unreported. They had observed the success of the Big Picture Talkers and were eager to build on that momentum. Part of the solution involved making it easier to report crime and to protect informants once information was given.[84] But for reporting to really take place, victims and witnesses had to believe in the justice system and trust in its ability to protect them.

These public officials knew that, while we had the responsibility to lead, we had to go beyond the courthouse or the political realm. We also knew that there would be no quick-fix solution but instead there would be years of work—years that would outlive election cycles or grant funding. To these ends, we invited into our group four distinct parts of the community, who also had a stake in helping us confront this issue: business leaders, religious leaders, school officials, and nonprofit organizations. The result was the Blue Ribbon Commission on the Prevention of Youth Violence (“BRC”).[85]

The business leaders understood that crime greatly influenced the quality of life and that the reality or perception of crime in the downtown business district greatly impacted our ability to attract investment. They also knew that displacing crime to another area of the community would not solve this issue for the entire area.[86] The head of the Greater Willington Chamber of Commerce was made a part of the BRC and has worked to engage this vital part of the team by hosting power breakfasts, applying for grants, and encouraging corporate investment in our prevention efforts.

The religious leaders, who came together around the movement of the Big Picture Talkers to start a unity and reconciliation effort, were also made part of the endeavor. Two pastors, one from an established African American church and the other from one of the oldest and largest white congregations downtown, were each given a place on the commission.

The school superintendent was also invited to join the team. He was facing the same racial divide with greater suspensions and dropouts, and a “minority achievement gap.” If there was a part of our community where fence mending was needed to confront our present by looking at our history, school officials knew they had a role to play.

There were over forty nonprofit groups working directly with the at-risk youth we were seeing at the courthouse. Many of them had been doing incredible work in diverse areas such as Boys and Girls Clubs, after-school arts programs, and gang intervention programs. While they all had the same desire to help, many of the groups were in direct competition for scarce grant dollars. In an attempt to bring the groups together behind a common cause, we gave them a seat at the table by forming a distinct arm of the BRC, known as the Tactical Advisory Committee, and invited the local director of the United Way to join the board.

With the BRC now established, we hired a strategic director from the community to work full time on the effort. We created three subteams to focus on specific areas. The Youth Violence Action Team was tasked with reducing crime by twenty-five percent over the next three years. The Education Action Team was tasked with reducing out-of-school suspensions and the dropout rate by twenty-five percent over the same time period. The Community Engagement team was charged with enlisting a volunteer army of four thousand and promoting our efforts to the larger community.

The BRC adopted two national best practices: an intervention-based strategy for youth already inside the system and a prevention-based strategy to keep youth outside the system from entering it. The High Point Model, named for the North Carolina town where it was piloted, employs a focused deterrence approach with the involvement of several community actors to promote the success of the program.[87] In the High Point Model, the heads of several local street gangs, who are all on probation and are still at a point where they face the real prospect of rehabilitation, are called into a meeting. This focus group includes carefully screened young offenders who are told that they are heading down a path that, if left unchecked, will likely lead to a prison cell or the morgue. Examples are given of other people they know from the streets of our community who have already received heavy sentences or who have died as a result of criminal conduct.

State and federal law enforcement officers, probation officials, and members of my office tell these young offenders that life as they know it is over. Here forward, their actions, and those of their known associates, will be heavily monitored by a combination of a gang task force and probation officers. If the young offenders are arrested again, prosecutors will advocate for a high bond, pursue an indictment for being a habitual felon, and change the venue to federal court to maximize the time of active incarceration. My office has expanded its reach into the federal system by targeting gun crimes and drug offenses of violent gang members. Enforcing these laws is far more effective than prosecuting these defendants’ violent crimes in state court, where defendants fear the repercussions of being a snitch if they testify against other defendants from their neighborhoods.

The effectiveness of the High Point Model hinges not only on severe consequences but also on second chances. Participants are carefully screened by a team of police, prosecutors, probation officers, and judges to determine if they have the potential for rehabilitation through the program. To lend support to their success, participants are given a way to save face and to escape a life of crime through bimonthly call-in meetings. Present at the meeting are members of the young offender’s family, as well as pastors, educators, and other non-law enforcement representatives of the BRC. A member of our homicide support group is also present to share a testimonial about the effects that criminal activity has had on his family.

The young offenders are given the opportunity to continue their education by enrolling at the local community college to earn their GEDs or college credit. Members of the Wilmington Housing Authority YouthBuild U.S.A. Program[88] (a program, much like Habitat For Humanity, where at-risk youth are paid through a grant to build a home together) and a program called Leading Into New Communities (“LINC”)[89] (a group of ex-offenders who get reintegrated into society by working, at no cost to a potential employer, with grant money used to pay for the first four months of employment) are also on hand to offer employment. The message coming from the meetings is simple: everyone, from police to the offenders’ families, wants them to succeed and to avoid further contact with the criminal justice system. The choice of which path to travel can only be made by the young person listening.

The BRC also created a Youth Enrichment Zone (“YEZ”) patterned after the Harlem Children’s Zone.[90] The idea behind the YEZ was to look at crime statistics and hospital reports to identify the areas in our community needing the most help. After an exhaustive analysis of this data, we identified a fifteen-block area on the north side of Wilmington, the same area where McIver had been shot. The concept behind the YEZ is to start with a small geographic area and focus resources on the schools, houses of worship, businesses, and nonprofits that work directly with the young people living there. Young children, especially in the critical zero- to five-year-old population, are assessed to determine the resources necessary for their long-term success. Additional areas may be annexed in the future as success is demonstrated.

Many of the problems that we jointly confronted could better be addressed at the child’s house rather than at the courthouse or the schoolhouse. We hired a caseworker, a man who lives in the YEZ, to go door-to-door to make an assessment of resident needs and to do a de facto census of who was living at each residence. What he found was alarming, but not altogether surprising. He visited eighty-four homes and found that those homes were housing 231 school age children, ninety lived at or near the poverty line, 98.7% were African American, and only four fathers lived under the same roof as their children.[91]

We adopted the philosophy that, while resources would come from the outside, ultimately this needed to be an organic process where residents were made a part of the solution. We held town hall meetings to hear from residents about existing problems and current services to identify gaps and redundancies and to get the community to buy into the concept of the YEZ. We created a youth ambassador group, made up of young men and women in the YEZ, who went door-to-door with the caseworker. Instead of these young people joining gangs and becoming part of the problem, they are now setting a different example.

Recently, the middle school in the heart of the YEZ closed amid much controversy. The school, D.C. Virgo, was closed because it was historically underperforming, causing parents to pull their children out, reducing the number of students to only half the capacity.[92] The school board made the financial decision to close the school and bus the remaining students elsewhere. But to the children and parents within the YEZ, the school was a treasure, leading many to invoke the memory of the closing of Williston High School to say that history was repeating itself.[93]

The BRC moved quickly to try to remedy the problem. We recognized that our crime prevention efforts are ultimately tied to keeping the kids in school. We wrote a resolution requesting that the school board reopen D.C. Virgo within one year as either a magnet school within the public system or as a charter school. The school board listened and adopted the resolution.[94] Whether it ultimately takes the shape of a charter school or remains in the public system, it has already been determined that an advisory board, made up of community members, equally appointed by the BRC and school board, will help decide its future direction.

E. The Role of Law Schools in Community Prosecution

Recently at the annual bar meeting in Blowing Rock, North Carolina, Chief Justice Sarah Parker convened a meeting of the Executive Committee of the North Carolina Conference of District Attorneys and an even number of some of the leading members of the criminal defense bar. The meeting, moderated by Mel Wright, the executive director of the Chief Justice’s Commission on Professionalism, was called to see if the group could identify why there appeared to be so much animosity between the two sides and if there was any common ground that could begin to heal the divide. The resounding answer from both sides was that more needed to be done to train the new members of our profession.

Today, there are seven law schools in North Carolina turning out almost eleven hundred graduates each year, and an equal number sit for the Bar Exam. It is now largely believed that the supply of new lawyers has outstripped the demand for them. Today’s graduates enter a job market with few prospects, and many are forced to hang a shingle where mentoring is virtually nonexistent.

Both defense attorneys and prosecutors at the meeting concluded that prosecutors could do more to help train all attorneys in their communities. This is largely because jobs in public service, including prosecutors’ and public defenders’ offices, have continued to grow, while jobs in the private sector have largely dried up.[95] And the turnover in the offices suggests that the future is bright for new graduates to begin their legal careers in a district attorney’s office. Consider that there are more than six hundred prosecutors in North Carolina, and roughly half of them have been attorneys for less than five years.[96] The valuable mentoring that will take place in these offices will help shape the profession moving forward whether these young lawyers stay in public service for a lifetime or only a short while.

Following the Blowing Rock meeting, Mel Wright and I assembled a group of deans and professors from law schools across the state to meet at the Norman A. Wiggins School of Law at Campbell University. We pitched the idea of starting a public service class at the various schools where each dean would design a curriculum that fits students’ needs. Students would undertake a course work component that would include reading materials that are actually used in the field.[97] Professors could bring in guest lecturers who are prosecutors and public defenders in area districts. These professionals could start to be involved in the education of students while they are still students, rather than starting with on-the-job training as assistant district attorneys.

The training could continue with students working as externs at nearby district attorneys’ and public defenders’ offices during their fall and spring semesters. During the summer, they could continue their training in prosecutors’ and public defenders’ offices around the state. A website has been created by the Conference of District Attorneys to give students the opportunity to apply to offices in rural communities that are frequently overlooked by students and younger lawyers.[98] This structure will connect offices in need of new attorneys with students and recent graduates who are in need of a job.

Think of the benefits to our profession. Go to one of the seven law school campuses in North Carolina and you will find some type of “actual innocence” clinic.[99] These are worthy efforts and should continue. But we should remember that these clinics need balance for justice to be done in an adversarial system.[100] Respectfully, it is not the role of defense attorneys to “advocate for justice.” That job, including the responsibility of being first in line to see that innocents do not suffer, belongs to prosecutors.[101] Having prosecutors involved in these classes might not only sensitize future advocates to the crucial role of prosecutors, but it will allow for a greater dialogue on existing cases where actual innocence is alleged.[102] Giving students an opportunity to work directly with crime victims will also ensure that these law students are representing the actually innocent in the criminal justice system and upholding constitutional rights.[103]

As I mentioned earlier, prosecutors not only have the constitutional duty to advise law enforcement; they are given increasing responsibility in the training of officers on procedural and substantive law. It is better for our profession to focus some efforts on teaching our prosecutors to give officers good advice on the front end rather than focus all of our resources on assisting defense attorneys on suppression hearings and appeals later in the process. It is also unquestionably preferable to prevent wrongful convictions and constitutional violations at the trial level than attempt to undo these costly mistakes years later through endless appeals. These public service academics within law schools, in time, I believe, could include not only training for law students but could also serve as an academy for training assistant district attorneys and assistant public defenders.

Such a setting could also allow for more meetings between members of the criminal justice system to debate the great issues that confront us all. This Essay has explored just one large social issue, race and justice, to highlight how it can be addressed either through politics or through education. While the case method is effective in teaching the law,[104] it rarely serves the larger good to extrapolate from individual cases to set overall policies. Problems that appear to be ubiquitous, requiring dramatic overhaul to the system, are instead frequently episodic, confined to the case that receives all the attention.[105] These issues can continue to be debated by politicians with predicable outcomes or we can elevate the discussion by bringing defense attorneys and prosecutors together to begin to see if there is common ground. An academic setting provides the best possibility.

Finally, over time, an early emphasis on community prosecution might also begin to address the inadequate funding found in public service.[106] The gap between assistant district attorney pay and the pay for a beginning associate at a major firm left little cause for debate about the direction I would take right after graduation.[107] Today, students face an even larger and more crushing student debt load.[108] One long-term response to this issue is that law schools could begin to invest in the public service area of our profession. That can take the form of public interest grants for students working in district attorneys’ and public defenders’ offices during their summers and loan forgiveness for graduates who work in these offices after graduation. Although, with North Carolina Legal Education Assistance Foundation (“LEAF”) loan repayment money having recently been eliminated, the future is bleak.[109]

The challenge for law schools today is to stay relevant, blending emerging best practices with timeless, good education, and to elevate the next generation of excellent lawyers who will be leaders in their communities. The challenge for district attorneys today is to attract the best and brightest legal minds while at the same time demonstrating a willingness to engage in a dialogue with others in the legal community that can lead to more quality prosecution and the implementation of national best practices. In short, law schools and prosecutors need each other. The opportunity for positive impact in our profession and the individual lives of our graduates will be greatly enhanced if law schools begin to balance their curriculum to focus not just on criminal defense but on prosecution as well.

Conclusion

Prosecutors and their offices are strengthened from within when they reach out to the communities they represent. Successful community-based prosecution involves finding a balance: building relationships while remaining independent; leading employees without micromanaging; providing structure while maintaining the flexibility to exercise discretion; setting the tone and listening to the unheard. It means recognizing that criminal prosecutions start with the prosecutor, but ultimately justice is not all about the prosecutor. When prosecutors succeed, they are celebrated.[110] When they fail, the results are catastrophic.

Success comes from looking inward, focusing on the core functions of the office—trying cases and advising law enforcement. Effective case management involves prioritization and efficiency, giving others in the district attorney’s office and the larger courthouse work group a stake in the outcome in ensuring that justice is done. Effectively advising law enforcement means keeping lines of communication open and staying involved in officer training to see that justice is carried out on the streets through the fair enforcement of the criminal laws.

Success also comes from looking outward, taking the role of public official out into the community you serve. It means speaking the truth, even when difficult, and including leaders outside of the justice system in finding solutions to issues that transcend individual cases. It involves alliance building and long-term commitment. At the core is education, not politics. Law schools, not the legislature, hold the most promise for supporting prosecutors and ultimately the entire legal profession by teaching future attorneys that, even in an adversarial system, everyone wants justice.

As I look to the future, I am optimistic about the role community-based prosecution will have in our profession and state. It is a model that has proven to be successful in practice and must be taught in our schools. As president-elect of the Conference of District Attorneys, I am committed to this curriculum of strengthening the future attorneys of our state and, in turn, having the law schools strengthen our profession.

* District Attorney for New Hanover and Pender Counties. This is dedicated to my family and the past and present employees of the DA’s Office who still teach and inspire me. I would like to thank Sarah Hayward, Mona Farzad, and Samantha Dooies for their help with research and editing.

[1]. I have worked as a prosecutor for the Fifth District since 1999. I have been the elected District Attorney since 2004.

[2]. I was an associate attorney in the trademark litigation section of the Intellectual Property group at Petree Stockton, now Kilpatrick Townsend & Stockton, in Winston-Salem from 1995 to 1998.

[3]. The District Attorney who hired me, John Carrkier (J.D. ’72), as well as his first assistant district attorney, John Sherrill (J.D. ’79), were both career prosecutors and Wake Forest graduates. The Chief District Court Judge at the time I was sworn in, John Smith (J.D. ’78), was also a Wake Forest graduate and a career prosecutor before taking the bench. Smith currently heads the Administrative Office of the Courts.

[4]. Just the Facts, Wake Forest U., http://admissions.wfu.edu
/discover/facts.php (last visited Feb. 9, 2012).

[5]. 2011-2012 Executive Committee, N.C. Conf. of Dist. Att’ys, http://www.ncdistrictattorney.org/executivecommittee.html (last visited Arp. 14, 2012).

[6]. Ethics complaints against North Carolina prosecutors have seen a steep increase since the Duke lacrosse case. According to the North Carolina Conference of District Attorneys, the year before Mike Nifong was prosecuted there were only five opened files on grievances filed against prosecutors. In 2006, the year Nifong was prosecuted, there were seventeen files. In 2007 there were over eighty grievances filed against prosecutors, with the number of grievances against prosecutors remaining between eighty and ninety per year through 2010. E-mail from Peg Dorer, Director, N.C. Conference of Dist. Att’ys, to author (Apr. 3, 2012, 10:51 EST) (on file with author).

[7]. QuickFacts for New Hanover County, North Carolina, U.S. Census Bureau, http://quickfacts.census.gov/qfd/states/37/37129.html (last updated Jan. 31, 2012).

[8]. QuickFacts for Pender County, North Carolina, U.S. Census Bureau, http://quickfacts.census.gov/qfd/states/37/37141.html (last updated Jan. 31, 2012).

[9]. Prior to the advent of structured sentencing in 1994, judges had the most discretion about how to sentence defendants. See generally James J. Collins et al., Evaluation of North Carolina’s Structured Sentencing Law, Final Report (1999), available at https://www.ncjrs.gov/pdffiles1
/nij/grants/187349.pdf (describing the changes enacted by the 1994 Structured Sentencing Act and the effects its reforms had produced in the decade following its passage). After this system was implemented, the responsibility of sentencing was transferred to the district attorney, who has the authority to make and negotiate plea offers and sentences.

[10]. See, e.g., John Rubin, 1999 Legislation Affecting Criminal Law and Procedure, Admin. of Just. Bull., Oct. 1999, at 1, 9, available athttp://www.sog.unc.edu/sites/www.sog.unc.edu/files/aoj9905crimlegislation.pdf (“Unique among the fifty states, North Carolina has allowed prosecutors control over the calendaring of felony cases.”). But see, e.g., Andrew M. Siegel, When Prosecutors Control Criminal Court Dockets: Dispatches on History and Policy from a Land Time Forgot, 32 Am. J. Crim. L. 325, 327 n.6 (2005) (finding this North Carolina report to be erroneous).

[11]. The North Carolina Constitution provides in part: “The District Attorney shall advise the officers of justice in his district, be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district, . . . and perform such other duties as the General Assembly may prescribe.” N.C. Const. art. IV, § 18(1).

[12]. The Team, Dist. Att’y’s Office for N.C. Court Sys. Dist. 5, http://www.nccourts.org/County/_Common/District5/Documents/theteam_021610.pdf (last visited Apr. 14, 2012).

[13]. The Institute of Government at the University of North Carolina at Chapel Hill also holds a retreat for these officials to encourage dialogue and synergy between court officials. See Judicial District Executive Seminar, UNC Sch. of Gov’t, http://www.sog.unc.edu/node/1234 (last visited Mar. 18, 2012). Headed by Jim Drennan, the former director of the North Carolina Administrative Office of the Courts, the seminar is an invaluable resource, and officials from every district would be well served to attend.

[14]. Ronald F. Wright, Community Prosecution, Comparative Prosecution, 47 Wake Forest L. Rev. 361, 362 (2012).

[15]. See N.C. Admin. Office of the Courts, 2009-10 Judicial Branch Annual Report 8 (2010).

[16]. N.C. Const. art. I, § 37.

[17]. David W. Neubauer, America’s Courts and the Criminal Justice System 272 fig.13.1 (Wadsworth Publ’g, 10th ed. 2010).

[18]. Benjamin R. David, The Homicide Family Support Group: Helping Victims’ Families and Prosecutors, Prosecutor, Oct.–Dec. 2010, at 24.

[19]. One heartbreaking example is an eight-year-old boy who was killed by a stray bullet when one drug dealer shot and killed another dealer during a dispute. See State v. Carter, 584 S.E.2d 792, 796 (N.C. 2003). A park, in the center of the Jervay Park community where the killing occurred, has been named in memory of the little boy, Demetrius Greene. Ken Little, Child’s Memory to Live On Through Namesake, Star-News, Apr. 30, 2005, at B5. His killer, Shan Carter, sits on North Carolina’s death row. Id.

[20]. Holding and I know each other from attending law school together at Wake Forest and thereafter working as associates together at Kilpatrick Stockton. We have maintained a friendship despite being on opposite ends of the political spectrum.

[21]. See N.C. Gen. Stat. § 7A-272 (2012).

[22]. Notably, both of these prosecutors are graduates of Wake Forest. W. Holt Trotman (J.D. ’80) runs the felony district court and Todd H. Fennell (J.D. ’83) runs the first appearance court.

[23]. See, e.g., Amy Craddock & Tamara Flinchum, N.C. Sentencing & Policy Advisory Comm’n, Structured Sentencing Statistical Report for Felonies & Misdemeanors 8 (2011), available at http://www.nccourts.org
/Courts/CRS/Councils/spac/Documents/statisticalrpt_fy09-10.pdf (stating that for the 2009–2010 fiscal year, 4939 Class H or I felony pleas were accepted in district court).

[24]. Justice Reinvestment Act, N.C. Gen. Stat. §§ 90-96, 15A-145.2 (2012) (requiring that defendants receive deferred prosecutions for first-time drug offenses and allowing for expunction).

[25]. Many self-initiated warrants are brought by parties who know each other and frequently involve cross warrants where both parties claim victimization and are simultaneously charged. We have found that mediation out of court, with the consent of both parties, is frequently more effective in reducing recidivism. For a discussion of the mediation services available to resolve such disputes see Mediation Services, ADR Center of Wilmington, NC, http://www.theadrcenter.org/Mediation.html (last visited Apr. 14, 2012).

[26]. See, e.g., 2009–2010 District Court Analysis of Domestic Violence, N.C. Jud. Dep’t 7 (Sept. 1, 2010), available at http://www.nccourts.org/Citizens
/SRPlanning/Documents/dome2009-2010.pdf; Analysis of FY2010–2011 Impaired Driving Charges and Implied Consent Charges Filed and Charges Disposed, N.C. Jud. Dep’t 3 (Sept. 12, 2011), http://www.nccourts.org
/Citizens/SRPlanning/Documents/ratfy2010-2011.pdf.

[27]. In 2008, we began an Administrative Traffic Court in Pender County that meets once a month. See Administrative Traffic Court in District 5, N.C. Ct. Sys., http://www.nccourts.org/County/Pender/Courts/Traffic/Default.asp (last visited Apr. 14, 2012).

[28]. The StreetSafe Driving program was developed for drivers under the age of twenty-five to have a hands-on four-hour driving course with a law enforcement officer in the passenger seat. See About Us, StreetSafe, http://www.streetsafeus.com/about.asp (last visited Apr. 14, 2012). Students, who attend the course with their parents, also hear testimonials from judges, prosecutors, and other young drivers who have lost loved ones through impaired driving offenses. The program, which began in 2007, has now spread to several other judicial districts. See Ken Little, Steering Teens to Safety, StarNews Online (July 17, 2007), http://www.starnewsonline.com/article/20070717/NEWS
/707170374.

[29]. See 2011 N.C. Sess. Laws 1, 243 (to be codified at N.C. Gen. Stat. § 7a-304) (directing in Section 15.11A that Administrative Courts be developed for hearing motor vehicle infractions).

[30]. Jamie Markham, Sentence Reduction Credits and Parole for DWI Inmates, UNC Sch. of Gov’t Blog (Jan. 13, 2010, 9:09 AM), http://sogweb.sog.unc.edu/blogs/ncclaw/?p=988.

[31]. DWI Court continues to operate under a grant, but will face similar fiscal challenges at the end of its grant term.

[32]. That year, there were six first-degree murder cases in the Fifth District related to domestic violence. In four of these cases, the women had come to the courthouse to get a civil protective order. Three of the cases ended when the defendants committed suicide after the murder. In the seven years since the creation of the family violence unit, the murder rate has dropped precipitously, leading many to call our unit the “Homicide Prevention Team.”

[33]. See Christian Henrichson & Valerie Levshin, Cost-Benefit Analysis of Raising the Age of Juvenile Jurisdiction in North Carolina, Vera Inst. of Justice (Jan. 20, 2011), available at http://www.vera.org/download?file=3185
/CBA-of-Raising-Age-Juvenile-Jurisdiction-NC-final.pdf.

[34]. Deferred prosecutions involving community-based punishment are especially common in underage drinking offenses for first-time offenders.

[35]. Benjamin David, The Benefits of Teen Court, Bus. Life, Nov. 1997, at 30, 63.

[36]. N.C. Const. art. IV, § 18(1).

[37]. These local efforts have included assigning officers into schools to form a bond with the same young people who may be victims or witnesses years later; starting a sports league with at-risk youth; and relocating police headquarters into the heart of the Youth Enrichment Zone. See infra notes 87–92 and accompanying text.

[38]. The Attorney General’s Training and Standards Division, Criminal Justice Education and Training Standards Commission is responsible for this certification. See Instructor Certification, N.C. Dep’t Just., http://www.ncdoj.gov/getdoc/b92dba07-e030-4022-8e95-e3b64202566e/2-6-3-1-2-4-Instructor-Certification.aspx (last visited Apr. 14, 2012). I obtained my certification this past year and am now working with the local community college to personally conduct Basic Law Enforcement Training.

[39]. In December 2006, Chris Long, a SWAT team member with the New Hanover Sheriff’s Office, killed an unarmed man when he shot him through a closed door during a raid of the home. See Ken Little, Long Cleared in Death, StarNews Online (July 12, 2007), http://www.starnewsonline.com/article
/20070712/NEWS/707120423?p=2&tc=pg. SBI Agents conducted an investigation and appeared before the grand jury on two different occasions: once to present charges of second-degree murder and again to consider charges of voluntary manslaughter. Kelli O’Hara, Christopher Long Case Before Grand Jury, WECT TV, http://www.wect.com/Global/story.asp?s=6765925&clienttype
=printable (last visited Apr. 14, 2012). The grand jury ultimately returned no true in each instance. Grand Jury Won’t Indict Former Deputy in Shooting, WWAY TV (July 11, 2007, 10:49 AM), http://www.wwaytv3.com/breaking_news
_no_indictment_in_strickland_shooting/07/2007.

[40]. In February 2009, Officer Richard Matthews of the Wilmington Police Department was killed during a high-speed chase of an armed drug dealer. Patrick Gannon, Pierce Indicted on Murder Charge in Police Officer’s Death, StarNews Online (Mar. 10, 2009), http://www.starnewsonline.com/article
/20090310/ARTICLES/903101994. Matthews was one of several Wilmington officers involved in the chase when his car struck a tree over two miles from where the defendant was apprehended. Id. The SBI presented the case to the grand jury, which indicted the defendant for second-degree murder. Id. The defendant was later convicted of this charge after a jury trial. State v. Anthony Pierce, 718 S.E.2d 648, 650–51 (N.C. App. 2011) (detailing the trial court jury’s findings); Veronica Gonzalez, Anthony Pierce Found Guilty of Second Degree Murder, StarNews Online (May 6, 2010), http://www.starnewsonline.com
/article/20100506/ARTICLES/100509777.

[41]. These cases range from in-custody deaths in the jail to people who are injured or killed by officers in situations where the officer used force.

[42]. In rare circumstances, an actual or apparent conflict requires the district attorney to refer the case to either the Attorney General’s office or a neighboring prosecutorial authority. N.C. Gen. Stat. § 7A-64 (2004); N.C. Gen. Stat. § 114-11.6 (2010).

[43]. Robert A. Rankin, Hitting the Road, the President Finds His Audience After a Quiet Opening No Cold Shoulder After All, Phila. Inquirer, Jan. 11, 1995,available at http://articles.philly.com/1995-01-11/news/25713212_1

_clinton-rally-middle-class-bill-tax-proposals.

[44]. Our checkpoints routinely round up at least twenty impaired drivers during any weekend night.

[45]. In “Operation Last Call,” I teamed with North Carolina Alcohol Law Enforcement agents to send letters to several area bar owners. We offered to meet with them and give police assistance to anyone who wanted our help. Several took us up on the suggestion.

[46]. See N.C. Gen. Stat. § 18B-901(c)(9) (2000) (authorizing licensing agencies to initiate summary suspension proceedings following sufficient notice to the licensee). I invoked this law in January 2011 after a murder occurred in front of the Rhino Club, an establishment that had nearly two hundred calls for service to the 911 Center in the nine months after receiving the warning letter in Operation Last Call. The bar was shut down, and the owners have since filed for bankruptcy protection. See Wayne Faulkner, Major Downtown Wilmington Landowner Files for Bankruptcy, StarNews Online (Apr. 12, 2011), http://www.starnewsonline.com/article/20110412/ARTICLES/110419909.

[47]. Crime rates in Wilmington have been steadily declining since 2002. See Brian Freskos, Drop in Wilmington Crime Rate Reflects National Decline, StarNews Online (Dec. 19, 2011), http://www.starnewsonline.com/article
/20111219/articles/111219710.

[48]. In the 2010 election cycle we lost a number of elected district attorneys to retirement and elections. See, e.g., Scott Saxton, Pope Upsets Long-Time D.A. Gore, WECT.com (May 5, 2010, 10:26 AM), http://www.wect.com/Global
/story.asp?S=12428029.

[49]. See N.C. Gen. Stat. § 163-322 (2007) (detailing North Carolina’s nonpartisan primary election system). Notably, judges’ races went from partisan elections to nonpartisan contests. There is currently an effort underway to return political labels to these contests. I believe this is a mistake.

[50]. Jon David, the district attorney of the 13th District, is my identical twin. He is a Republican, and I am a Democrat. We make no distinction in how we run our offices based upon parties—in fact, we worked together in the Fifth District for ten years, and much of what I have written about we helped shape together.

[51]. FBI statistics show that “one in seven youngsters has experienced unwanted sexual solicitations online” and “[o]ne in three has been exposed to unwanted sexual material online.” Keeping Kids Safe Online—FBI Program Offered in Schools, Fed. Bureau of Investigation, (Jan. 11, 2011), http://www.fbi.gov/news/stories/2011/january/online_011111/online_011111. To encourage dialogue between children and parents about Internet habits, I leave Internet safety contracts with school faculty to distribute to parents. The contract, on my letterhead, lays out ten points of agreement between child and parent, ranging from not talking to strangers or giving out personal identifying information, to reporting immediately to the parents if the child is approached. I also give parents computer software that monitors their home computers and includes contact information for a local task force if they suspect that their child has received a solicitation from an adult.

[52]. Robert Traver, Small Town D.A. 10–11 (1954).

[53]. Memorandum from the New Hanover Sheriff’s Office to author (Jan. 31, 2008) (on file with author).

[54]. See Christian D. Rutherford, “Gangsta” Culture in A Policed State: The Crisis in Legal Ethics Formation Amongst Hip-Hop Youth, 18 Nat’l Black L.J. 305, 310 (2005).

[55]. In a speech at the Department of Justice’s African American History Month Program on February 18, 2009, Holder remarked, “Though this nation has proudly thought of itself as an ethnic melting pot, in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards.” Eric Holder, Att’y Gen. of the U.S., Remarks at the Department of Justice African American History Month Program (Feb. 18, 2009), http://www.justice.gov/ag/speeches/2009/ag-speech-090218.html.

[56]. Ken Little, State Asked to Investigate Man’s Death in Incident with Police; Neighbors Upset, Star-News, Apr. 7, 2007, at A1.

[57]. See Veronica Gonzalez, Racial History Course Making a Return Visit; Controversial Shooting Prompted Dialogue, Star-News, Sept. 2, 2009, at B1 (discussing McIver’s use of drugs on the night of the shooting); Ken Little, SBI Report: McIver Shooting Justified, Star-News, Apr. 17, 2007, at A1 (discussing the facts of the incident).

[58]. Consistent with my policy, supra note 41 and accompanying text, I released a synopsis of the SBI investigation to the community and invited Ms. McIver to review all the evidence and meet with the lead case agent and me when I announced my decision. She accepted my conclusion and called for continued calm.

[59]. See generally Howard M. Wasserman et al., The Phases and Faces of the Duke Lacrosse Controversy: A Conversation, 19 Seton Hall J. Sports & Ent. L. 181 (2009).

[60]. District attorneys staged an intervention at an elected district attorneys’ conference in April 2006. Among the prosecutors offering to help were Peter Gilchrist, who had been the elected district attorney in Charlotte since 1974, and Tom Keith, the elected district attorney in Winston-Salem since 1990.

[61]. News Release, North Carolina Conference of District Attorneys (Dec. 29, 2005), http://www.wral.com/asset/news/state/2006/12/29/1121238/nifong
_opinion.swf.

[62]. See Findings of Fact, Conclusions of Law and Order of Discipline, N.C. State Bar v. Nifong, No. 06 DHC 35 (Disciplinary Hearing Comm’n of the N.C. State Bar June 16, 2007); see also Duff Wilson, Prosecutor in Duke Case is Disbarred for Ethics Breaches, N.Y. Times, June 16, 2007, http://www.nytimes.com/2007/06/16/us/16cnd-nifong.html. Interestingly, Nifong’s replacement, Tracey Cline, was also recently ousted from her position. See J. Andrew Curliss, Durham District Attorney Removed, Charlotte Observer, Mar. 3, 2012, http://www.charlotteobserver.com/2012/03/03/3064914
/durham-district-attorney-removed.html. A Durham judge found that Cline engaged in conduct that was prejudicial to the administration of justice. Id.

[63]. See supra note 6. The fact that none of these complaints have been substantiated is hardly balm for the wound. Going through the process of an ethics complaint is punishment in itself. See also Tom Keith, Aristotle’s Swallow: The Infrequency of Prosecutorial Error in NC 1 (unpublished manuscript) (on file with author) (“‘One swallow does not make a summer,’ or to paraphrase the epigram, ‘One Mike Nifong does not make prosecutorial misconduct a trend’”).

[64]. See Ken Little, Judge Asked to Overturn Cummings Conviction, Star-News, Sept. 15, 2004, at 4B.

[65]. See Ken Little, D.A. Denies Race a Factor in Case, Star-News, Jan. 27, 2005, at 1B. In 1998, DA Jerry Spivey became the first district attorney in North Carolina to be removed from office when he uttered a racial slur at an African American man during an altercation at a Wrightsville Beach bar. See generally In reSpivey, 480 S.E.2d 693 (N.C. 1997).

[66]. Maggie Alexander, Race, Politics Not a Factor in Murder Trial, Judge Rules, WECT (Jan. 28, 2005), http://www.wect.com/story/2867127/race-politics-not-a-factor-in-murder-trial-judge-rules?clienttype=printable&redirected=true; see also State v. Cummings, No. 02-CRS-20548 (Sup. Ct. New Hanover County Jan. 27, 2005) (order denying Motion for Appropriate Relief).

[67]. Veronica Gonzalez, Racial Disparity Remains Wide in Death Sentences, StarNews Online (Aug. 8, 2011), http://www.starnewsonline.com/article
/20100808/ARTICLES/100809739?p=1&tc=pg.

[68]. On December 14, 2011, Governor Perdue vetoed a bill that sought to amend the Racial Justice Act in order to bring it in line with U.S. Supreme Court precedent. North Carolina Governor Vetoes Repeal of Racial Justice Act, Reuters, Dec. 14, 2011, available at http://www.reuters.com/article/2011/12/15
/us-crime-penalty-racial-idUSTRE7BE04W20111215. On January 5, 2012, the House met in a special session in an attempt to override the veto. See S.B. 9, 2011 Gen. Assemb., 2011 Reg. Sess. (N.C. 2011).

[69]. See, e.g., Michael Hewlett, DA Under Fire From Ministers’ Group Over Racial Justice Act, Winston-Salem Observer (Jan. 10, 2012), http://www2.journalnow.com/news/2012/jan/10/wsmet01-da-under-fire-from-ministers-group-over-ra-ar-1797433/ (discussing a local group objecting to a district attorney speaking out against the Act).

[70]. Tyson’s best-selling book, Blood Done Sign My Name, recounts the story of an interracial murder in Oxford, North Carolina, and the race riots that followed in that community and later in Wilmington, in the early 1970s. See generally Timothy Tyson, Blood Done Sign My Name (2004).

[71]. Dr. Tyson’s father and five uncles all attended Duke Divinity School to become Methodist ministers. Id. at 63, 178.

[72]. One hundred students came from Duke, one hundred from North Carolina Central, and one hundred from University of North Carolina at Chapel Hill.

[73]. See generally Timothy B. Tyson, Wars for Democracy: African American Militancy and Interracial Violence in North Carolina During World War II, inDemocracy Betrayed: The Wilmington Race Riot of 1898 and Its Legacy 253 (Timothy B. Tyson & David S. Cecelski eds., 1998).

[74]. See generally Philip Gerard, Cape Fear Rising (1994).

[75]. See Tyson, supra note 70, at 256–58. Williston High School was long considered a model for education and boasted a number of elite graduates who went on to prominent colleges and universities, making the school the pride of the African American community. Id. at 257. Notably, Martin Luther King Jr. was scheduled to speak at Williston on April 4, 1968, but cancelled to remain in Memphis, where he was killed that same day. See id.

[76]. See Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954).

[77]. Firebomb Reversal Hailed, Bulletin, Dec. 5, 1980, at 10.

[78]. The “Big Picture Talkers” reference is from the book Their Eyes Were Watching God. See Zora Neale Hurston, Their Eyes Were Watching God 1–2 (HarperCollins Publishers, Inc. 2006) (1937).

“The sun was gone, but he had left his footprints in the sky. It was the time for sitting on porches beside the road. It was the time to hear things and talk. These sitters had been tongueless, earless, eyeless conveniences all day long. Mules and other brutes had occupied their skins. But now, the sun and the bossman were gone, so the skins felt powerful and human. They became lords of sounds and lesser things. They passed nations through their mouths. They sat in judgment.”

Id.

[79]. Great athletes who grew up in Wilmington include basketball superstar Michael Jordan; boxer Sugar Ray Leonard; tennis great Althea Gibson, the first African American to win Wimbledon; and NFL Hall of Fame quarterbacks Roman Gabriel and Sonny Jurgenson. Great artists include painters Minnie Evans and Ivey Hayes and jazz musician Percy Heath.

[80]. To see a syllabus, please visit The History of Wilmington in Black and White, http://www.wilmingtoninblackandwhite.org/Home_Page.html (last visited Apr. 14, 2012).

[81]. Tom Keith & S. Stanley Young, Racial Justice Act Repeal Should Stand, Winston-Salem J., Jan. 4, 2012, available athttp://www.journalnow.com/news/2012/jan/04/wsopin02-tom-keith-and-s-stanley-young-guest-colum-ar-1775245/.

[82]. “At 11:00 on Sunday morning when we stand and sing and Christ has no east or west, we stand at the most segregated hour in this nation.” Dr. Martin Luther King, Jr., Address at Western Michigan University: “Conscience of America” Lecture Series (Dec. 18, 1963) (transcript available at http://www.wmich.edu/~ulib/archives/mlk/q-a.html).

[83]. Mike Queen, the recently retired pastor of the two-hundred-year-old First Baptist Church of Wilmington, is also a Wake Forest graduate. See Ben Steelman,Queen Stepping Down After Decades at First Baptist, Starnews Online (July 3, 2011), http://www.starnewsonline.com/article/20110703
/ARTICLES/110709913?p=5&tc=pg.

[84]. The Wilmington Police Department created a “Text a Tip” program for people to anonymously report crime. Wilmington Police Introduce “Text a Tip” Program, WWAY TV, (Sept. 23, 2008, 4:42 PM), http://www.wwaytv3.com
/wilmington_police_text_a_tip_program/09/2008. I then appeared before the N.C. Legislature to have the discovery law changed to protect the identity of confidential informants. See N.C. Gen. Stat. § 15A-904 (2012).

[85]. See Blue Ribbon Commission on the Prevention of Youth Violence, United Way of the Cape Fear Area, http://www.uwcfa.org/brc (last visited Apr. 14, 2012).

[86]. When the Rhino Club was closed downtown, the group that occupied it (verified gang members of a local chapter of the Bloods) moved to a midtown location known as Club 609. Three months later, a murder occurred there, leading the Alcoholic Beverage Control Commission to immediately revoke the club’s liquor license. Promoters then moved the party to a farm in rural Columbus County, and another murder was committed by the same gang. Marissa Jasek, NC ABC Revokes, Denies Club 609 Permits After Murder; Cites Ties to Slain Gang Leader, WWAY TV (May 13, 2011 11:48 PM), http://www.wwaytv3.com/2011/05/13/nc-abc-revokes-denies-club-609-permits

-after-murder-cites-ties-to-slain-gang-leader.

[87]. See David Kennedy, Don’t Shoot: One Man, A Street Fellowship and the End of Violence In Inner City America (2011).

[88]. YouthBuild U.S.A., Wilmington Housing Authority, http://www.wha.net
/Housing_Programs/Resident_Services/YouthBuild.htm (last visited Mar. 23, 2012).

[89]. About LINC, Leading Into New Communities, http://www.lincnc.org
/AboutLINC/tabid/57/Default.aspx (last visited Mar. 23, 2012).

[90]. The Harlem Children’s Zone was created by Geoffrey Canada. See generally Geoffrey Canada, Reaching Up for Manhood: Transforming the Lives of Boys in America (1998) (discussing the effects of growing up in the inner-city).

[91]. E-mail from Tufanna Thomas, Strategic Dir., New Hanover Cnty. Blue Ribbon Comm’n on the Prevention of Youth Violence, to author (Apr. 3, 2012, 16:11 EST) (on file with author).

[92]. See Amanda Greene, Superintendent Recommends Virgo Middle School Be Shuttered, StarNews Online (Feb. 16, 2011), http://www.starnewsonline.com/article/20110216/ARTICLES/110219727; Amanda Greene, Virgo Middle to Close, Reopen As Charter or Magnet School, StarNews Online (May 17, 2011), http://www.starnewsonline.com/article
/20110517/ARTICLES/110519640.

[93]. Greene, Virgo Middle to Close, Reopen As Charter or Magnet School, supra note 92. The school was named for the first African American principal in the area. Michael Jordan is counted among the alumni. Id.

[94]. Pressley Baird, New Hanover Submits Charter-School Application for Virgo Middle, StarNews Online (Nov. 30, 2011), http://www.starnewsonline.com/article/20111130/ARTICLES/111139991 (stating that New Hanover County Schools submitted a fast-track application to charter D.C. Virgo and that a successful application would allow the school to open in the fall of 2012). But see Editorial, Virgo’s Success Will Require Strong, Competent Leadership and Public Support, StarNews Online (Jan. 5, 2012), http://www.starnewsonline.com/article/20120105/ARTICLES/120109875 (stating the application for charter school was denied).

[95]. When my predecessor, John Carriker, joined the district attorney’s office in the early 1970s, our office had only five members. Three decades later, our office has more than forty people. See The Team, supra note 12.

[96]. E-mail from Karen Wood, Deputy Director, N.C. Conference of District Attorneys, to author (Mar. 19, 2012, 9:43 EST) (on file with author).

[97]. Such reference materials would inevitably include the Prosecutors’ Trial Manual. See generally Robert L. Farb, North Carolina Prosecutors’ Trial Manual (2000).

[98]. See Job Opportunities, N.C. Conf. of Dist. Att’ys, http://www.ncdistrictattorney.org/jobopportunities.html (last visited Apr. 14, 2012).

[99]. See North Carolina Center on Actual Innocence, http://www.nccai.org (last visited Apr. 14, 2012).

[100]. It is my understanding that Advocates for Justice already provide a free one-year membership and certificate to the highest performing student in the trial practice class at some law schools. Prosecutors should provide this similar level of support.

[101].

The [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. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.

Berger v. United States, 295 U.S. 78, 88 (1935).

[102]. See Criminal Prosecution Clinic, Stan. L. Sch., http://www.law.stanford.edu/program/clinics/criminalprosecution/ (last visited Apr. 16, 2012) (“The Criminal Prosecution Clinic helps students learn what it means to act morally with power. Prosecutors are the system’s front line of defense against wrongful convictions. If the evidence to convict isn’t there—or wasn’t gotten legally—the prosecutor can drop the case before it ever reaches a judge or jury.”); see also The Law Clerk Internship Program at Santa Clara District Attorney’s Office, Santa Clara L. (Oct. 4, 2011, 9:21 EST), http://law.scu.edu/blog/lcs/the-law-clerk-internship-program-at-santa-clara-district-attorneys-office.cfm (implementing a similar program to Stanford’s program).

[103]. See N.C. Const. art. I, § 37.

[104]. The recent shooting death of Florida teenager Trayvon Martin has sparked a national dialogue about race and justice. Ironically, just days before this incident, I was teaching officers from the Wrightsville Beach Police Department about the case of State v. Joe, 711 S.E.2d 842 (N.C. Ct. App. 2011), where a suspect, who was wearing a hoodie and acting evasively, did not give officers the right to detain him under the Fourth Amendment because there was no “reasonable suspicion” to believe that a crime had occurred.

[105]. A recent example is State v. Taylor, No. 91 CRS 71728 (Sup. Ct. Wake County Feb. 17, 2010). In that case, a defendant’s murder conviction was overturned. Id. Discrepancies in the way the SBI reported its blood spatter results led to a call for an examination of almost two hundred cases statewide. None of the other defendants were found to be innocent in the examination, and yet district attorneys were roundly accused of protecting convictions and coaching SBI agents.

[106]. The court system received about $480 million in 2011, or roughly two percent of the annual state budget, and will be cut by $40 million in the 2012–2013 fiscal year. See Office of State Budget & Mgmt., Office of the Governor, Governor’s Proposed Budget 2011-2013, at 180 (2011), available athttp://www.osbm.state.nc.us/files/pdf_files/budget2011-13_web_corrected.pdf.

[107]. The starting salary for an assistant district attorney in my office is $40,000 per year. The starting salary for new associates at Kilpatrick Townsend & Stockton is $130,000 per year. Kilpatrick Townsend & Stockton LLP, FindLaw’s Information, http://www.infirmation.com/shared/lss/one-payscale.tcl?employer_id=GA0280 (information as of Mar. 2007) (last visited Mar. 4, 2012).

[108]. See David Segal, What They Don’t Teach Law Students: Lawyering, N.Y. Times, Nov. 19, 2011, at A1.

[109]. The North Carolina legislature recently reallocated $17.5 million of the Golden Leaf Foundation’s budget to reduce the overall state budget shortfall. SeeRichard Craver, Golden Leaf Foundation May Be Less Effective, Winston-Salem J. (July 5, 2011), http://www.journalnow.com/news/2011/jul/05
/wsmain01-foundation-may-be-less-effective-ar-1179245/.

[110]. The newest freeway heading into Wilmington is named for the first district attorney of the modern era, John Burney. See Ben Steelman, Civic Leader John Jay Burney Jr. Dies at 85, StarNews Online (Apr. 10, 2010), http://www.starnewsonline.com/article/20100410/ARTICLES/100419986. Burney also graduated from Wake Forest School of Law in 1951 and served as district attorney for almost ten years. Id. The courthouse where I work is named for his successor, W. Allen Cobb. See Oliver Carter III, Better Know a Judicial District 5th Judicial District: New Hanover and Pender Counties, N.C. B. Ass’n (Mar. 28, 2011), http://younglawyers.ncbar.org/newsletters
/theadvocatemarch2011/judicialdistrict.aspx.

David_LawReview_9.12

Tags: Criminal Law Professional Conduct

« Beer v. the First Amendment: the Troubling Implications of the Fourth Circuit’s Decision in Swecker

The Community Prosecutor: Questions of Professional Discretion »

Plagiarism in Lawyer’s Advocacy: Imposing Discipline for Conduct Prejudicial to the Administration of Justice

By: Douglas E. Abrams*

Introduction

I. Model Rule 8.4(c): Dishonesty, Fraud, Deceit, or Misrepresentation

II. Model Rule 8.4(d): Prejudice to the Administration of Justice

A. The Design of the Adversary System

B. Inadvertent Judicial Plagiarism

C. Distorting the Adversary Argument

Conclusion

The Community Prosecutor: Questions of Professional Discretion

By: Bruce A. Green* & Alafair S. Burke**

I. Background

A. Outgrowth of Community Policing

B. Contrast with Traditional Prosecution

II. Prosecutorial Discretion and Community Prosecuting

III. The Community’s Influence on Prosecutorial Discretion

A. Co-Opting of Communities

B. Co-Opting of Prosecutorial Values

C. Leveling the Playing Field: Community Defense Lawyers

IV. Transparency and Traditional Prosecution

Conclusion

Community-Based Prosecution in North Carolina: An Inside-Out Approach to Public Service at the Courthouse, on the Street, and in the Classroom

By: Ben David*

Introduction

I. Inside the System

A. Superior Court

B. “H and I” Court

C. District Court

D. Law Enforcement

E. Inside the District Attorney’s Office

II. Outside the System

A. Race and Justice: Confronting the Sleeping Giant

B. Agenda Driven Outreach: Playing Politics with Cases

C. Elevating the Conversation: The Professor and the Gospel Singer

D. Bringing Leaders Together: Ideas Into Action

E. The Role of Law Schools in Community Prosecution

Conclusion

Post Topics

Social

II. Model Rule 8.4(d): Prejudice to the Administration
of Justice