California prosecutor
Joyce Dudley gets kicked off a case because it's too much like what happened in her novel. Well, you know, this is an Althouse theme: How much does fiction count as real? (
Last week's entry.)
The question of whether a lawyer’s freelance fiction can require disqualification was both novel and important, Justice Yegan wrote. He said he hoped “that this case of first impression will make a lasting impression.”...
In a sworn statement filed in opposition to the disqualification motion, Ms. Dudley said her book was not based on a real case....
“Intoxicating Agent,” which Ms. Dudley paid to have printed, is made notable by Ms. Dudley’s acknowledgment to a local newspaper that her fictional heroine was “a pumped-up version” of herself.
Ms. Danner, Ms. Dudley writes, has “the poise and sexiness of a dancer, the brains of a scholar and the protective passion of a mother.”
“She had always been attractive,” Ms. Dudley continues, “but now, having reached middle age, experience, confidence and poise further enhanced her beauty.”
“It’s not really a good judgment call to closely mirror the facts of a case while it’s still pending,” Ms. Fairstein said.
Oh, so it's self-published and self-promoting? (
Said the blogger.) Now, that's pretty awful... and the actual quotes there are really, really awful. But does writing a bad novel have any bearing on her fitness to do her job?
Deborah L. Rhode, an authority on legal ethics at Stanford, said the appeals court’s ruling was correct but too broad.
“There’s a lot not to like in the way that this deputy district attorney traded on her office to promote her book,” Professor Rhode said. “And the court could justifiably be concerned that her desire for publicity could affect her decision whether to try the case or accept a plea.”
But the decision went on to seemingly ban all sorts of extracurricular writing.
“No current public employee,” Justice Yegan wrote, “should be permitted to exploit his or her official position as a lever to earn extra income.”
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4 comments:
Well, she's a prosecutor - she represents the Man, so of course she should be disqualified.
She should probably be fired too, and then, like Sysiphius, be forced to perform the Vagina Monologues before a troop of Girl Scouts until completed, but never allowed to do so because the Right Wing Christianists Sharia Morals Police always raid the performance...
“Intoxicating Agent,” which Ms. Dudley paid to have printed, is made notable by Ms. Dudley’s acknowledgment to a local newspaper that her fictional heroine was “a pumped-up version” of herself.
Ms. Danner, Ms. Dudley writes, has “the poise and sexiness of a dancer, the brains of a scholar and the protective passion of a mother.”
Ohh dear. How awfully embarassing to get your self-published Mary Sue character out in the newspaper.
“And the court could justifiably be concerned that her desire for publicity could affect her decision whether to try the case or accept a plea.”
Goodness, if that's the standard for concern, then DAs all over the country are in trouble from sunup to sundown.
From the news report: In both, the victim said she had been sexually assaulted after being given an intoxicating drug.
Isn't that a typical case? It's not like one of those eccentric, Law and Order "ripped from the headlines" episodes.
This disqualification seems quite odd. I'd chalk it up to California judicial wackiness in action, to go along with California prosecutorial wackiness.
Let's get real here. Prosecutors are often accused of using their office, including their handling of high profile cases, as a means to achieve personal ends. Those ends more typically involve high political office or lucrative private sector careers than success as a self-published author. But that strikes me as a distinction without a difference. A few examples: Tom Dewey in the 40s, Rudy Giuliani in the 80s, Mike Nifong in the Duke lacrosse rape case, and Eliot Spitzer in his corporate litigation-by-press-release today, are all high profile prosecutors who have been the object of those accusations. Whether any of these four were guilty of trading on their office in that way, it obviously happens and has never been thought to be grist for a disqualification of the prosecutor. Linda Fairstein, quoted in this article as criticizing the California prosecutor, turned out a few potboilers of her own, and used her reputation as the former head of the sex crimes unit of the Manhattan DA's office to launch her post-prosecutorial career.
Nevertheless, courts have always stayed out of those issues, and have routinely treated prosecutorial discretion as beyond judicial control, except in truly extreme (and exceedingly rare) cases. Even allegations of racial bias in decisions to prosecute, supported by statistical evidence, has been deemed insufficient to trigger judicial inquiry into prosecutorial discretion.
The basic reason is that criminal cases generally, and high profile cases certainly, already have a tendency to turn into a circus. To keep any kind of control, the focus has to remain on the crime charged -- can the prosecutor prove the allegations beyond a reasonable doubt? If peripheral issues about the prosecutor's "real" motivations become litigable, then the criminal justice system will really start to spin out of control.
The Duke case is a perfect example of all of those tendencies in action. If improper prosecutorial motivations can be the reason for disqualification, Nifong would seem to be a much better target for this kind of disqualification motion than the hapless California deputy DA. Except that Nifong is not in California, and doesn't have to deal with California judicial wackiness.
I don't know whether the disqualification ruling ultimately turned on the court's conclusion that “this deputy district attorney traded on her office to promote her book,” and that the prosecutor's "desire for publicity could affect her decision whether to try the case or accept a plea.” I assume Prof. Rhode is summarizing the ruling correctly here. Many thought that Nifong's "desire for publicity" of the sort he thought might be helpful in a hard-fought Democratic primary was the explanation for his charging decisions in the Duke case. If that becomes enough to trigger disqualification litigation against a prosecutor, then this court has started to march down a very dangerous road.
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