The Ethics of Overcharging

Brian Tannebaum twitted about the final sentence of John Steele’s post at Legal Ethics Forum, calling it “priceless.”


Criminal law is not my forte but the murder two charges seem to me to be clearly beyond what an ethical prosecutor should bring.
Brian’s point was that John, while disclaiming that he knew nothing about the subject, didn’t let that stop him from questioning the prosecutor’s ethics. This was about the Zimmerman case, a hot subject that many wanted in on. There is nothing wrong with having something to say about a high profile case that’s caught the interest of many, but one might suggest that if you’re going to write about it, you can’t simultaneously disclaim responsibility by the “I don’t know nothing about birthin’ no babies” caveat. Then again, Tannebaum tends a bit toward snark on twitter sometimes.

After reading Tannebaum’s twit, I asked John why, what ethical issues was he raising, what ethical proscriptions was he suggesting the prosecutor violated.  John explained.


At least by the time that probable cause affidavit was filed and the prosecutor prayed with the lawyer for the parents of the deceased, I’ve been of the opinion that the charges were filed not because they were supported and could be proven beyond a reasonable doubt but rather because of the politics. Looking over what evidence the State still has, I don’t see that they’re anywhere close to murder two and I don’t buy that the theory of “let the jury dispose of our over-charging” absolves prosecutors of their responsibilities.
From the outside, much of criminal law seems best explained by politics. If the prosecutor’s motivation isn’t to charge a defendant with the crime the evidence supports, but with a charge intended to appease public blood lust or, more charitably, appeal to the public’s sensibilities, it certainly emits an unpleasant odor.

But it’s hard to prove motive, particularly malevolence. We can assume it easily enough of our enemies, those with whom we don’t share the same politics, but we do so at our peril.  The system purports to weed out charges that are unsupportable by the evidence, but it offers prosecutors a rather wide berth to charge the highest and worst count conceivably supportable. 

Outsiders may see such charges as ill-conceived, improperly motivated, but that’s because we have the normative sense that it offends our sense of justice and propriety. But then, we’re outsiders, not the prosecutors, and they are charged with exercising the discretion of charging what they want.  It’s not a free ride, as charges can be dismissed when they overcharge, or they can be humiliated at trial when the evidence doesn’t bear out and the defendant walks.  Or they can get twelve men six women good and true to convict despite the lack of evidence. That’s our system for better or worse.

Is a Murder 2 charge for Zimmerman so far out the ballpark as to be utterly unsupportable, a charge that no rational jury could find?  It may be beyond the pale as far as some are concerned, but does it rise to the level of overcharging that puts the prosecution’s ethics in doubt?  The statute reads :

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(2) 775.082, s. 775.083, or s. 775.084.
Was Zimmerman’s mens rea depraved? There are a great many people out there who would argue it was. John Steele thinks otherwise. Both are allowed their views, particularly since the trial has yet to start and evidence yet to be introduced. Laws based on mental states like “depraved” are sufficiently vague and wiggly that they lend themselves to such disputes.

Whether that’s the “right” charge under the facts and circumstances of this case remains to be seen. But that it doesn’t come anywhere near an unethical abuse of power by the prosecutors seems clear. It’s in the ballpark, even if somewhere near the top of the left field fence. That remains within the prosecutor’s reasonable discretion, no matter how unpalatable it may seem to some.

But after John responded to my query, Hofstra lawprof  Monroe Freedman decided to put in his two cents.

When a prosecutor overcharges – a common practice – the principal purpose is to “bargain” down from that frightening charge to a “negotiated” guilty plea to what the prosecutor should have had to charge and prove to a jury if the system were working pursuant to the Constitution. Too often, the charade of a negotiation is with the connivance of the court-assigned defense lawyer, who helps to con the defendant into thinking that he has gotten a truly negotiated deal to the best plea possible.


Another purpose is to frighten the defendant into asking for a lesser-included offense instruction, which gives the prosecution the possibility of a compromise verdict from the jury to a finding of guilt of a significant offense, although less than what was initially charged.


Freedman has been around forever. He’s got cobwebs in his office older than I am.  But aside from his comment having utterly nothing to do with the Zimmerman case or the discussion between John Steele and me, it is such malignant, simplistic cynicism as to shock even a curmudgeon like me.

Yes, Monroe, there are prosecutors and defense lawyers like that. There are also prosecutors who charge appropriately and believe they are doing their job of protecting the public from harm. There are defense lawyers who will fight to the bitter end for their clients against all odds, and there are defense lawyers who accurately advise clients that the end will be bitter.

Since John Steele’s blog is called Legal Ethics Forum, there ought to be an ethical takeaway. Mine is that Monroe Freedman has his tin foil hat on too tight, and ought to put down his keyboard and rest on laurels before destroying his legacy.  Not even a fixture in academia has the right to make people stupider by proffering such overcharges of hatred and malevolence. Not ethically.

7 comments on “The Ethics of Overcharging

  1. John Steele

    Scott, thanks for commenting. As I think you picked up, but as perhaps Mr. Tannebaum did not, there is a big difference between my acknowledgement that criminal law is “not my forte” and the claim that I know nothing about applying legal ethics in criminal law matters.

    Second, I stand by my “sense” that the murder two charges were political rather than based upon what could be proved. I had read that statute, of course, when it was posted and discussed at the Prawfsblawg post I linked to. I’ve also found that Talk Left has had some useful, detailed coverage. Based upon those and a lot of reading on the case, I had developed a list of ethics issues in the case that could be worked into a PR course. I’ve been told that that post has been quite useful in teaching and learning about the matter.

    I still don’t see the evidence for “depraved.” Despite the use of “profiling” in the probable case affidavit, the prosecutor had no evidence for racial profiling and now that phrase has been banned from the trial. (When being cross-examined, the affiant claimed, improbably, that he had used the verb “profile” for no particular reason.) The prosecutor wanted to call Zimmerman a “self-appointed” security guard but had no evidence for that, given the undisputed status of Zimmerman as having been appointed by the housing association. The live witness saw Martin sitting atop Zimmerman raining down blows on Zimmerman and saw Zimmerman screaming for help. We now have proof of significant injuries that Zimmerman suffered. Again, I have yet to see any evidence for the “depraved” element — other than the politics.

    Finally, while Monroe can certainly stand up for himself, I deeply respect his sledge hammer approach. From his initial foray into legal ethics — when he told the truth about criminal defense and Warren Burger (then of the DC Circuit) tried to have Monroe’s license yanked — to today, Monroe continues to fight the good fight, especially for vigorous criminal defense advocacy. (It’s useful to go back and re-read Monroe’s “Three Hardest Questions” article in the Michigan law review, which was essentially the speech that cause Burger to attack Monroe.) I don’t agree with anything close to 100% of his views, but given what he’s accomplished for lawyers and lawyering, if and when anyone finds one of his claims to be excessive, I hope we can simply disagree with him.

  2. SHG

    There are two levels of questions, the first being whether Depraved Murder 2 is the right charge, the second being whether it’s so far from a viable charge as to be unethical.  I agree with your sense that it’s political, but I’m not sure that makes it unethical.  Within the realm of potential discretion, there are any number of factors, from personal bias to political influence, that can impact a charge. They shouldn’t, but as long as it remains in the realm of discretion, I fail to see where it becomes unethical.

    As for Monroe, I gave him credit for the good he did decades ago. But like I said, he needs to put down the keyboard and rest on his laurels. If that comment is any indication, he’s now a danger to himself and lawyers everywhere.

    P.S. Ignore Tannebaum. You’re just as justified in raising the question as he is in pretending he’s a sommelier, and at least you have the integrity to note that crim law isn’t your forte, whereas he never admits that his “acumen” is limited to wines with twist-off caps.

  3. Dan

    If that’s what Monroe Freedman thinks court-appointed defense lawyers are doing, he can dust off his license and drive a few blocks over to 99 Main Street and pick up the slack. Frankly, I think a private and paid defense lawyer is more likely to do that kind of thing- he got paid, any work he does now is a loss of sorts. But wow, that’s cynical.

  4. SHG

    So what part of Monroe Freedman making such a dickish comment makes you think you ought to make a dickish comment in response?

  5. Dan

    Visceral reaction. Also, in Nassau County, there are plenty of decent court-appointed lawyers who don’t do that. And finally, he teaches at a law school where classrooms full of students would push their mother down the stairs for the chance to do court-appointed work that the good professor demeans. The rest won’t work as lawyers at all.

    But yeah, I probably should have kept it to myself.

  6. Daniel

    Having watched the first seven days of the trial, it’s my opinion that, in essence, the prosecution borders on the frivolous. It wouldn’t make it past a summary judgment motion if the case were a wrongful death civil case.

    The proof of murder is: (1) Zimmerman followed Martin because he thought he was a criminal (Zimmerman committed no crime by following Martin, and that is something cops do when they see a “suspicious person”); (2) Martin didn’t like criminals getting away so he must have murdered Martin (cops “hate” criminals who elude them or don’t get caught, yet they can still shoot in self-defense); (3) Zimmerman wanted to be a cop (it should be a criminal act to want to be a cop, but it isn’t, LOL); (4) Zimmerman lied about knowing about the “stand your ground law” (the only thing I have seen that seems to have much merit); and (5) Zimmerman shot Martin.

    The Supreme Court has held that bad motive for an arrest is irrelevant if the police actually have probable cause for the arrest. Similarly, it seems that even if Zimmerman hates all criminals, that hate is no proof that Zimmerman acted in other than self-defense. It is proof that Zimmerman didn’t want the alleged criminal to get away, which is likely what almost all people want.

    The prosecution is so bad, the state is putting the defense case on for Zimmerman, and the cross-examination is just strengthening the prosecutions “defense” of Zimmerman.

    I have no love for cops (because I know the police culture from the inside), but that doesn’t make me a murderer (if I happen to act in self-defense) because I think most cops (“assholes”) get away with committing crimes because they are cops.

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