GUEST COLUMN: Ministers of justice and the rules of conduct

It sometimes comes as a surprise to the public that lawyers are held to a particular ethical standard in the practice of the law — otherwise known as Rules of Professional Conduct (aka: ethical code) which outlines the rules of conduct to be followed. Crime may be up, and cases may be high-profile, but our ethical standards remain the same.

As prosecutors, we represent the government and the people. Our duty is to seek justice — not merely convict — seeking justice is our primary responsibility. In my role as the district attorney, I am constantly stressing with my staff that how they approach each case must overall be objective, with the goal of everyone understanding the importance of ethics and acting on it. This may mean simply maintaining professional and respectful relationships with the defense counsel, disclosing all pertinent information in a timely manner, never lying to the court (in my office this results in termination), proceeding with candor and good faith and always acting with integrity. Sometimes, the media and legislators want to know conviction rates and dismissal rates. While perhaps understandable, these two measurements are inappropriate and do not accurately reflect our mission, goals or effectiveness in serving justice. Of course, convictions are important, as a means of achieving justice, but at the same time, I tell my staff to simply do the best job they can, given the facts of the case, strength of the evidence, the restrictions of the law and the vagaries of jury selection. I do not hold attorneys strictly accountable for convictions because this has the potential to lead to a culture of winning at all costs and to ethical violations and even convicting the innocent.

Often, we are asked why we did not take a specific case which to the untrained eye looks like a slam dunk. The hard truth is we cannot take all cases. Without probable cause, we cannot take a case. Probable cause means that all the facts in a criminal case would lead a reasonable person to believe that the accused person has committed the crime charged. But that is only the beginning because trial before a fact finder requires proof beyond a reasonable doubt — the highest standard of proof in American jurisprudence. In other words, our ethical obligation is the reasonable likelihood of conviction at trial. We must believe (within reason) that the charges we file can be substantiated by admissible evidence.

Also in the process, unlike defense attorneys, we must protect the rights of victims and defendants, whereas the defense attorney’s sole duty and obligation is to the accused. Not all forms of justice are resolved with convictions. Some defendants are redirected to the Pre-Prosecution Diversion program, Drug Court, Mental Health Court and other specialty courts which recognize special needs that may underlie criminal behavior. The process of justice has many different faces.

The resolution of criminal cases often takes place via plea negotiation and not through criminal trials. However, a defendant has no constitutional right to a plea offer nor does the court have to accept a plea agreement. Before extending a plea offer, it is our obligation to determine what charge or charges will best serve the interests of justice. We must consider the expectations of the victim and community, the impact on the defendant’s life, the evidence required to support the charges, the importance of the case to law enforcement and the community, and the nature and strength of the case.

Over these last weeks I have been traveling to each of the three offices in my district to teach a course in ethics for all who work for the 13th Judicial District Attorney, not just the attorneys. This will be a continuing requirement for all new employees. The two fundamental principles underlying my administration are adherence to the professional rules (aka Code of Ethics) and protecting the rights of victims.

Prosecutors are ministers of justice. This was most eloquently stated by Supreme Court Justice Southerland in Berger v. United States in 1935. Prosecutors are servants of the law, “… the twofold aim of which is that guilt shall not escape, or innocence suffer. He may prosecute with earnestness and vigor…..[b]ut while he may strike hard blows, he is not at liberty to strike foul ones. It is just as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

Barbara Romo is the district attorney for the 13th Judicial District serving Sandoval, Cibola and Valencia counties.