Friday, June 24, 2005

Nothing Says Romance Like Sending a Guy to Death Row

Is it ethical for a judge presiding over a death penalty case to be sleeping with the DA trying that very case? In my few years practicing criminal law, I have heard of at least three cases of judges having affairs with prosecutors trying cases in their courts. And as anyone who has ever worked in the criminal courts probably knows, these things tend to be somewhat open secrets. I don't think a single defense attorney ever asked that any of the judges involved recuse themselves, most likely for the very reason it appears the attorney in this death penalty case didn't--they are afraid of the retaliation by the judge or prosecutor on the hundreds or thousands of other cases being handled either by that judge or that prosecutor or both. As a defense attorney, you are not supposed to allow concerns about other clients to dissuade you from zealously representing any particular client. You are actually obligated to withdraw from a case if you believe that zealous representation of one client will cause you to violate a duty you owe to any other past or current client. But in reality, I'm sure it happens. But, in a death penalty case? If that defense attorney knew about an affair, I think he was obligated to ask the judge to recuse herself. His client was, after all, on trial for his life.

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