Over at Volokh Conspiracy, Kenneth Anderson questions whether it is ethical for a prosecutor, as part of a deal to reduce a sentence for one defendant, to condition an agreement on a criminal defense lawyer’s concluding his representation of another related defendant. A bit too dry, maybe professorial, to interest you? What if the prosecutor was Martha Coakley, and the case was Amirault.
The Wall Street Journal’s Dorothy Rabinowitz has an op-ed today reminding readers of the inglorious role that Martha Coakley played in one of — certainly in my view — the greatest miscarriages of justice of the past twenty years in the United States, the persecution in Massachusetts of the Amirault family on prosecutor-contrived charges of child abuse.
According to Rabinowitz’s account, before agreeing under great pressure from judges and the public to agree to reduce Cheryl Amirault’s sentence to time served, Coakley asked the Amiraults’ attorney, James Sultan, to pledge—in exchange—that he would stop representing Gerald and undertake no further legal action on his behalf. She had evidently concluded that with Sultan gone—Sultan, whose mastery of the case was complete—any further effort by Gerald to win freedom would be doomed. Mr. Sultan, of course, refused.
As provided by a commenter to the post, the Massachusetts’s rules of professional responsibility provides:
RULE 5.6 RESTRICTIONS ON RIGHT TO PRACTICE
A lawyer shall not participate in offering or making:
(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy.
It further provides at MRPC 8.6(a) that any lawyer who seeks to induce another to violate the rules is also in violation. So from the technical perspective, it would appear that Coakley’s demand would be an ethical violation, though the rule is primarily directed toward civil cases where a lawyer would trade-off one client’s recovery for another.
As another of Anderson’s commenters note, this problem arises not only from Coakley, but from Sultan’s representation of multiple defendants, post appeal, and thus implicates Bennett’s conflict of interest point, that even defendants with apparently aligned interests may well face a conflict. The distinction here is that Coakley’s condition arises in 1999, years after the 1986 conviction.
From a harshly practical perspective, Sultan’s willingness to pursue freeing his clients, conflicts notwithstanding, years later was a huge benefit to the defendants. Rarely can a defendant find a lawyer willing to serve his or her cause after conviction and appeal, no less continue to do so for years afterward. That Sultan was willing to push the case was itself something of a miracle, and to suggest that he should have limited his service to one while leaving the others on their own is pragmatic lunacy.
It strikes me that Coakley’s demand doesn’t fall easily into the ethical rules paradigm, but rather a deliberate effort to undermine the constitutional right to counsel. Her goal was to take the one lawyer willing, and clearly capable, of undermining the conviction out of the mix in order to limit the bleeding to the prosecution. Her goal was to deprive Gerald Amirault of his right to counsel.
By asking whether Coakley’s condition is unethical, Anderson trivializes the problem she sought to create. The ethical rules are replete with conflicts and are frequently a matter of balancing cost and benefit. This is particularly true when one tries to apply them to criminal matters, and even more so when applied to the prosecution. As Dick Thornburgh informed us, there are no ethical rules that apply to federal prosecutors.
The bigger, and more fundamental, issue is that Coakley took an affirmative stance designed to facially undermine a defendant’s constitutional right. While waiver of constitutional rights is a common occurrence, this was instead a trade-off of rights, a benefit for Cheryl Amirault at the expense of Gerald. This way, at least one innocent person would remain imprisoned and the government wouldn’t look completely ridiculous.
What emerges from Anderson’s question goes well beyond a balancing of ethical interests by Martha Coakley, but the use of state power to coerce a constitutional deprivation. Is that ethical?