October 9, 2006

The prosecutor's "disabling conflict of interest": her novel.

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.”

7 comments:

Tim said...

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...

Balfegor said...

“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.

Elizabeth 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.”

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.

Richard Dolan said...

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.

Johnny Nucleo said...

"Intoxicating Agent" sounds like a great novel. It reminds me of my novel, "Hammerhead", which is also great. Here is a great passage from "Hammerhead":

"Nick Hammerhead was always good-looking but now that he was in his forties he was even more good-looking and had sex with even more hot chicks because he was so good-looking and hot chicks would always fall in love with him and want to have sex with him."

George said...

She should now write a sequel in which her intrepid hero D.A. runs afoul of an crooked judge who, in the process of her investigation, she discovers suffers from a loathsome disease and is a Nazi spy.

Zeb Quinn said...

My initial reaction was that no one is really harmed by her writing such a book, even if it is based on a real case, because if she has overreached in any way in the pursuit of notoriety for herself and/or for the sake of book sales, the justice system will correct for that. Finders of fact, be they juries or judges, have the capacity, indeed the penchant, for doing exactly that. Furthermore, in the end, it is really her boss -- the DA-- who is in the position of determining whether and to what extent her after-hours career as a novelist is influencing her work as a deputy prosecutor, and of being the proper party to take the appropriate action against her, as her employer.

Upon further reflection I still believe those things, but a little something from my legal ethics class way back when nagged at me, about how lawyers should avoid even the mere appearance of impropriety. The public has a right to expect that the criminal justice system isn't being influenced in any manner by a prosecutor's desire to peddle books for her personal gain. Even if she isn't, people wonder if she is. And that's enough all by itself to make it improper. But even with that I can't see how it could be reversable error in a given case.