June 5, 2010
Fox on the Right to Silence
This chapter argues that a right of mental control prohibits the state either from extracting a suspect’s thoughts without her meaningful consent or from making use of a suspect’s compelled recall or recognition to lay criminal blame upon her. Existing accounts of the constitutional privilege against self-incrimination are ill-equipped to address the doctrinal implications of safe and reliable forensic neuroscience. Brain imaging is importantly different, for Fifth Amendment purposes, from all other forms of evidence, because it enables state officials to obtain information directly from a suspect’s brain, in a way that affords her no opportunity to control the transmission of that information. The physical/testimonial distinction in right-to-silence jurisprudence presupposes a flawed conception of mind/body dualism. Exposing this dualism reveals that the normative significance we confer to a suspect’s control over his thoughts against unwanted use by the government. The use of compelled neuroscientific evidence is illegitimate when it deprives the accused of control over her mental life. Prosecutors may not comment on a suspect’s decision to decline the testing, and judges should instruct jurors not to draw adverse inferences from a choice to decline testing. Instructions against drawing adverse inferences are likely to be effective, however, only if jurors come to recognize legitimate reasons to decline testing.
June 4, 2010
"Extending Probation Sentence Without Proof Beyond a Reasonable Doubt?"
But what I don’t understand is how the judge could lawfully sentence Cunningham to a new probation term that extends past the end of the initial sentence. Under the original sentence, Cunningham was to be entirely free of criminal justice system supervision after 5 years, in April 2011 (two in prison and three on probation, with the probation revocable if he misbehaves). Yet under the sentence imposed at the revocation hearing, Cunningham would continue to be under criminal justice system supervision until April 2012 (June 2009 + 4 months in prison + 30 months on probation).
Lavitt on Decision Making by the OLC
Joseph Lavitt (lecturer, University of California, Berkeley - School of Law) has posted Professionalism and Power: Flawed Decision Making by the OLC Exposes a Bar that is Losing its Moxie (California Law Review Circuit, Vol. 1, p. 33, 2010) on SSRN. Here is the abstract:
In recent years, legal scholars and practitioners alike have expressed major misgivings about the advice that the Department of Justice’s Office of Legal Counsel (OLC) provided to former President George W. Bush following the attacks of September 11, 2001. On February 19, 2010, House Judiciary Committee Chairman John Conyers Jr. released internal communications of the Justice Department that uniformly and definitively discredit – in multiple and material aspects – the OLC’s now-infamous August 1, 2002, “torture memoranda”. The debate about what the OLC got wrong is over. It is time to consider what went wrong with the OLC.
June 3, 2010
Dempsey on Marshall and Duff's "Criminalization and Sharing Wrongs"
Michelle Madden Dempsey (Villanova University School of Law) has posted Sharing Reasons for Criminalization? No Thanks…Already Got ‘Em! on SSRN. Here is the abstract:
This short essay critiques Sandra Marshall and Antony Duff’s seminal work, “Criminalization and Sharing Wrongs,” by arguing that communities need not share in the wrongs done to particular victims in order to have standing to criminalize those who commit such wrongs.
"More coverage of psychopathy censorship controversy"This post at In the News canvasses the "controversy over Robert Hare's attempt to block publication of a peer-reviewed article critical of his psychopathy construct." The instrument is widely used by forensic psychologists in sexually violent predator cases. The original post setting forth the controversy is here. Hat tip: Michael Perlin.
June 2, 2010
Allen on the Relative Plausibility Theory in Criminal Cases
Ronald J. Allen (Northwestern University Law School) has posted No Plausible Alternative to a Plausible Story of Guilt as the Rule of Decision in Criminal Cases (PROOF AND STANDARDS OF PROOF IN THE LAW, Juan Cruz, Larry Laudan, eds., 2010) on SSRN. Here is the abstract:
The relative plausibility theory is an explanatory account of juridical proof in Anglo-American court systems. Its central feature is that proof at trial is organized over competing stories advanced by the litigants, and that decision in civil cases is for the more plausible of the stories, or the more plausible of the set of stories, advanced by the parties as explanations of what occurred. If the fact finders construct their own explanation of what occurred, which is possible, nonetheless the explanation will be fashioned in light of the competing explanations offered by the parties, and essentially by definition will be the most plausible of the accounts considered by the fact finder. In criminal cases, fact finders find guilt if there is a plausible story of guilt and no plausible story of innocence; otherwise, they find innocence. The relative plausibility theory is an empirical rather than an evaluative account, and it is offered as an explanation of certain features of Anglo-American trials. Furthermore, it neither rests on nor entails any essentialist claims about the nature of law or reason. Both may be highly contingent, radically unstable, extremely mutable, and so on, without any effect on the soundness of the relative plausibility theory as an explanation of the present status of proof rules in, and the structure of, Anglo-American trials. Certain features of the relative plausibility theory are logical, however, suggesting some limits on the mutability of proof rules, and suggesting possible grounds for generalizing conclusions about systems of litigation designed to achieve accurate outcomes. Similarly, certain conceptions of rationality integral to the theory are probably common across western cultures, and perhaps across all human cultures, thus offering yet another universalizing tendency. Still, the local nature of the theory should be kept in mind, and perhaps those from other legal traditions can draw contrasts and comparisons between the Anglo-American approach and their own. This paper discusses these matters and then extends the relative plausibility theory to criminal cases.
Gould & Leo on Wrongful Convictions
Jon B. Gould and Richard A. Leo (pictured) (George Mason University - School of Public Policy and University of San Francisco - School of Law) have posted One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
In this article the authors analyze a century of research on the causes and consequences of wrongful convictions in the American criminal justice system while explaining the many lessons of this body of work. This article chronicles the range of research that has been conducted on wrongful convictions; examines the common sources of error in the criminal justice system and their effects; suggests where additional research and attention are needed; and discusses methodological strategies for improving the quality of research on wrongful convictions. The authors argue that traditional sources of error (eyewitness misidentification, false confessions, perjured testimony, forensic error, tunnel vision, prosecutorial misconduct, ineffective assistance of counsel, etc.) are contributing sources, not exclusive causes, of wrongful conviction. They also argue that the research on wrongful convictions during the last hundred years has uncovered a great deal about how these sources operate and what might prevent their effects. Finally, the authors urge criminal justice professionals and policy-makers to take this research more seriously and apply the lessons learned from a century of research into wrongful convictions.
June 1, 2010
Opinion limiting federal sex offender statute to those travelling in interstate commerce after effective date
Carr v. United States is here. Here is the syllabus:
Enacted in 2006, the Sex Offender Registration and Notification Act (SORNA) makes it a federal crime for, inter alia, any person (1) who “is required to register under [SORNA],” and (2) who “travels in interstate or foreign commerce,” to (3) “knowingly fai[l] to register or update a registration,” 18 U. S. C. §2250(a). Before SORNA’s enactment, petitioner Carr, a registered sex offender in Alabama, relocated to Indiana without complying with the latter State’s registration requirements. Carr was indicted under §2250 post-SORNA. The Federal District Court denied Carr’s motion to dismiss, which asserted that the §2250 prosecution would violate the Constitution’s Ex Post Facto Clause because he had traveled to Indiana before SORNA’s effective date. Carr then pleaded guilty and was sentenced to prison. Affirming the conviction, the Seventh Circuit held that §2250 does not require that a defendant’s travel postdate SORNA and that reliance on a defendant’s pre-SORNA travel poses no ex post facto problem so long as the defendant had a reasonable time to register post-SORNA but failed to do so, as had Carr.
Held: Section 2250 does not apply to sex offenders whose interstate travel occurred before SORNA’s effective date. Pp. 5–18.
(a) The Court rejects the Government’s view that §2250(a) requires a sex-offense conviction, subsequent interstate travel, and then a failure to register, and that only the last of these events must occur after SORNA took effect. The Court instead accepts Carr’s interpretation that the statute does not impose liability unless a person, after becoming subject to SORNA’s registration requirements, travels across state lines and then fails to register. That interpretation better accords with §2250(a)’s text, the first element of which can only be satisfied when a person “is required to register under SORNA.” §2250(a)(1). That §2250 sets forth the travel requirement in the present tense (“travels”) rather than in the past or present perfect (“traveled” or “has traveled”) reinforces this conclusion. See, e.g., United States v. Wilson, 503 U. S. 329, 333. And because the Dictionary Act’s provision that statutory “words used in the present tense include the future as well as the present,” 1 U. S. C. §1, implies that the present tense generally does not include the past, regulating a person who “travels” is not readily understood to encompass a person whose only travel occurred before the statute took effect. Indeed, there appears to be no instance in which this Court has construed a present-tense verb in a criminal law to reach preenactment conduct. The statutory context also supports a forward-looking construction of “travels.” First, the word “travels” is followed in §2250(a)(2)(B) by a series of other present tense verbs—“enters or leaves, or resides.” A statute’s “undeviating use of the present tense” is a “striking indic[ator]” of its “prospective orientation.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 59. Second, the other elements of a §2250 violation are similarly set forth in the present tense: Sections 2250(a)(1) and (a)(3) refer, respectively, to any person who “is required to register under [SORNA]” and who “knowingly fails to register or update a registration.” (Emphasis added.) Had Congress intended preenactment conduct to satisfy §2250’s first two requirements but not the third, it presumably would have varied the verb tenses, as it has in numerous other federal statutes. Pp. 5–11.
(b) The Government’s two principal arguments for construing the statute to cover pre-SORNA travel are unpersuasive. Pp. 11–18.
(1) The claim that such a reading avoids an “anomaly” in the statute’s coverage of federal versus state sex offenders is rejected. Section 2250 imposes criminal liability on two categories of persons who fail to adhere to SORNA’s registration requirements: any person who is a sex offender “by reason of a conviction under Federal law . . . ,” §2250(a)(2)(A), and any other person required to register under SORNA who “travels in interstate or foreign commerce,” §2250(a)(2)(B). The Government’s assertion that §2250(a)(2)’s jurisdictional reach should have comparable breadth as applied to both federal and state sex offenders is little more than ipse dixit. It is entirely reasonable for Congress to have assigned the Federal Government a special role in ensuring compliance with SORNA’s registration requirements by federal sex offenders, who typically would have spent time under federal criminal supervision. It is similarly reasonable for Congress to have given the States primary responsibility for supervising and ensuring compliance among state sex offenders and to have subjected such offenders to federal criminal liability only when, after SORNA’s enactment, they use interstate commerce channels to evade a State’s reach. The Seventh Circuit erred in analogizing §2250 to 18 U. S. C. §922(g), which prohibits convicted felons from “possess[ing] in . . . commerc[e] any firearm or ammunition.” According to the lower court, §2250(a), like §922(g), uses movement in interstate commerce as a jurisdictional element to establish a constitutional predicate for the statute, not to create a temporal requirement. However, the proper analogy here is not between the travel of a sex offender and the movement of a firearm, but between the sex offender who “travels” and the convicted felon who “possesses.” The act of travel by a convicted sex offender may serve as a jurisdictional predicate for §2250, but it is also, like the act of possession, the very conduct at which Congress took aim. Pp. 11–14.
(2) Also unavailing is the Government’s invocation of one of SORNA’s purposes, to locate sex offenders who failed to abide by their registration obligations. The Government’s argument confuses SORNA’s general goal with §2250’s specific purpose. Section 2250 is not a stand-alone response to the problem of missing sex offenders; it is embedded in a broader statutory scheme enacted to address deficiencies in prior law that had enabled sex offenders to slip through the cracks. By facilitating the collection of sex-offender information and its dissemination among jurisdictions, these other provisions, not §2250, stand at the center of Congress’ effort to account for missing sex offenders. While subjecting pre-SORNA travelers to punishment under §2250 may well be consistent with the aim of finding missing sex offenders, a contrary construction in no way frustrates that broad goal. Taking account of SORNA’s overall structure, there is little reason to doubt that Congress intended §2250 to do exactly what it says: to subject to federal prosecution sex offenders who elude SORNA’s registration requirements by traveling in interstate commerce. Pp. 14–17.
(3) None of the legislative materials the Government cites as evidence of SORNA’s purpose calls this reading into question. To the contrary, the House Judiciary Committee’s Report suggests not only that a prohibition on postenactment travel is consonant with Congress’ goals, but also that it is the rule Congress in fact chose to adopt. Pp. 17–18.
(c) Because §2250 liability cannot be predicated on pre-SORNA travel, the Court need not address whether the statute violates the Ex Post Facto Clause. P. 18.
551 F. 3d 578, reversed and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, and BREYER, JJ., joined, and in which SCALIA, J., joined except for Part III–C. SCALIA, J., filed an opinion concurring in part and concurring in the judgment. ALITO, J., filed a dissenting opinion, in which THOMAS and GINSBURG, JJ., joined.
Opinion rejecting Miranda claim
Berghuis v. Thompkins is here. Here is the syllabus:
After advising respondent Thompkins of his rights, in full compliance with Miranda v. Arizona, 384 U. S. 436, Detective Helgert and another Michigan officer interrogated him about a shooting in which one victim died. At no point did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but near the end, he answered “yes” when asked if he prayed to God to forgive him for the shooting. He moved to suppress his statements, claiming that he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. The trial court denied the motion. At trial on first-degree murder and other charges, the prosecution called Eric Purifoy, who drove the van in which Thompkins and a third accomplice were riding at the time of the shooting, and who had been convicted of firearm offenses but acquitted of murder and assault. Thompkins’ defense was that Purifoy was the shooter. Purifoy testified that he did not see who fired the shots. During closing arguments, the prosecution suggested that Purifoy lied about not seeing the shooter and pondered whether Purifoy’s jury had made the right decision. Defense counsel did not ask the court to instruct the jury that it could consider evidence of the outcome of Purifoy’s trial only to assess his credibility, not to establish Thompkins’ guilt. The jury found Thompkins guilty, and he was sentenced to life in prison without parole. In denying his motion for a new trial, the trial court rejected as nonprejudicial his ineffective-assistance-of-counsel claim for failure to request a limiting instruction about the outcome of Purifoy’s trial. On appeal, the Michigan Court of Appeals rejected both Thompkins’ Miranda and his ineffective-assistance claims. The Federal District Court denied his subsequent habeas request, reasoning that Thompkins did not invoke his right to remain silent and was not coerced into making statements during the interrogation, and that it was not unreasonable, for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see 28 U. S. C. §2254(d)(1), for the State Court of Appeals to determine that he had waived his right to remain silent. The Sixth Circuit reversed, holding that the state court was unreasonable in finding an implied waiver of Thompkins’ right to remain silent and in rejecting his ineffective-assistance-of-counsel claim.
1. The state court’s decision rejecting Thompkins’ Miranda claim was correct under de novo review and therefore necessarily reasonable under AEDPA’s more deferential standard of review. Pp. 7–17.
(a) Thompkins’ silence during the interrogation did not invoke his right to remain silent. A suspect’s Miranda right to counsel must be invoked “unambiguously.” Davis v. United States, 512 U. S. 452, 459. If the accused makes an “ambiguous or equivocal” statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused’s intent, id., at 461–462. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain si-lent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that “avoid[s] difficulties of proof and . . . provide[s] guidance to officers” on how to proceed in the face of ambiguity. Davis, supra, at 458–459. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither. Pp. 8–10.
(b) Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to police. A waiver must be “the product of a free and deliberate choice rather than intimidation,coercion, or deception” and “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U. S. 412, 421. Such a waiver may be “implied” through a “defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.” North Carolina v. Butler, 441 U. S. 369, 373. If the State establishes that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver. The record here shows that Thompkins waived his right to remain silent. First, the lack of any contention that he did not understand his rights indicates that he knew what he gave up when he spoke. See Burbine, supra, at 421. Second, his answer to the question about God is a “course of conduct indicating waiver” of that right. Butler, supra, at 373. Had he wanted to remain silent, he could have said nothing in response or unambiguously invoked his Miranda rights, ending the interrogation. That he made a statement nearly three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Third, there is no evidence that his statement was coerced. See Burbine, supra, at 421. He does not claim that police threatened or injured him or that he was fearful. The interrogation took place in a standard-sized room in the middle of the day, and there is no authority for the proposition that a 3-hour interrogation is inherently coercive. Cf. Colorado v. Connelly, 479 U. S. 157, 163–164, n. 1. The fact that the question referred to religious beliefs also does not render his statement involuntary. Id., at 170. Pp. 10–15.
(c) Thompkins argues that, even if his answer to Helgert could constitute a waiver of his right to remain silent, the police were not allowed to question him until they first obtained a waiver. However, a rule requiring a waiver at the outset would be inconsistent with Butler’s holding that courts can infer a waiver “from the actions and words of the person interrogated.” 441 U. S., at 373. Any waiver, express or implied, may be contradicted by an invocation at any time,terminating further interrogation. When the suspect knows that Miranda rights can be invoked at any time, he or she can reassess his or her immediate and long-term interests as the interrogation progresses. After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived Miranda rights. Thus, the police were not required to obtain a waiver of Thompkins’ Miranda rights before interrogating him. Pp. 15–17.
2. Even if his counsel provided ineffective assistance, Thompkins cannot show prejudice under a de novo review of this record. To establish ineffective assistance, a defendant “must show both deficient performance and prejudice.” Knowles v. Mirzayance, 556 U. S. ___, ___. To establish prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors,the result of the proceeding would have been different,” Strickland v. Washington, 466 U. S. 668, 694, considering “the totality of the evidence before the judge or jury,” id., at 695. Here, the Sixth Circuit did not account for the other evidence presented against Thompkins. The state court rejected his claim that he was prejudiced by evidence of Purifoy’s earlier conviction. Even if it used an incorrect legal standard, this Court need not determine whether AEDPA’s deferential standard of review applies here, since Thompkins cannot show prejudice under de novo review, a more favorable standard for him. De novo review can be used in this case because a habeas petitioner will not be entitled to relief if his or her claim is rejected on de novo review. See §2254(a). Assuming that failure to request a limiting instruction here was deficient representation, Thompkins cannot show prejudice, for the record shows that it was not reasonably likely that such an instruction would have made any difference in light of other evidence of guilt. The surviving victim identified Thompkins as the shooter, and the identification was supported by a surveillance camera photograph. A friend testified that Thompkins confessed to him, and the details of that confession were corroborated by evidence that Thompkins stripped and abandoned the van after the shooting. The jury, moreover, was capable of assessing Purifoy’s credibility, as it was instructed to do. Pp. 17–19.
547 F. 3d 572, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined.
May 31, 2010
Stern on Homes and the Fourth Amendment
This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces but do not harm interpersonal and domestic privacy. Contrary to claims in the case law and commentary, there is little evidence to support the broad territorial conception of privacy inherent to the “sanctity of the home,” a vital personhood interest in the physical home, or even uniformly robust subjective privacy expectations in varying residential contexts. Similarly, closer examination of the political and historical rationales for housing exceptionalism reveals a nuanced, and equivocal, view of common justifications for privileging the home. This Article advocates replacing the broad sweep of housing exceptionalism, and its emphasis on the physical home, with a narrower set of residential privacy interests that are more attentive to substantive privacy and intimate association.
May 30, 2010
Top-Ten Recent SSRN Downloads
|1||324||Disentangling Child Pornography from Child Sex Abuse |
Carissa Byrne Hessick,
Arizona State, Sandra Day O'Connor College of Law,
Date posted to database: March 28, 2010 [2nd last week]
|2||242||Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction |
Margaret Colgate Love, Gabriel J. Chin,
Law Office of Margaret Love, University of Arizona James E. Rogers College of Law,
Date posted to database: April 16, 2010 [new to top ten]
|3||218||Vigilante Justice: Prosecutor Misconduct in Capital Cases |
Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, Jonathan Sussman,
CUNY School of Law, Fordham University - School of Law, Private Practice, New York County Defender Services,
Date posted to database: April 5, 2010 [4th last week]
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Georgetown University - Law Center,
Date posted to database: March 23, 2010 [5th last week]
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F. Andrew Hessick, Carissa Byrne Hessick,
Arizona State University - Sandra Day O'Connor College of Law, Arizona State, Sandra Day O'Connor College of Law,
Date posted to database: March 3, 2010 [7th last week]
|6||169||Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses |
Jelani Jefferson Exum,
University of Kansas School of Law,
Date posted to database: March 12, 2010 [8th last week]
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DePaul University - College of Law,
Date posted to database: March 28, 2010 [9th last week]
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John C. P. Goldberg, Benjamin C. Zipursky,
Harvard Law School, Fordham University - School of Law,
Date posted to database: March 24, 2010 [10th last week]
|9||151||Ex Ante Regulation of Computer Search and Seizure |
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: March 22, 2010 [new to top ten]
|10||151||Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws |
University of Toledo College of Law,
Date posted to database: April 5, 2010 [new to top ten]
Luban on the Conscience of a Prosecutor
This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving lengthy sentences. Bibb’s superiors required him (over his protests) to defend the convictions in a hearing to determine if the men should be retried. He had exhaustively reinvestigated the case, including interviews with reluctant witnesses who it seemed unlikely that anyone but Bibb could get to testify. This essay delves into the facts of the case and includes interview material with Daniel Bibb. It defends Bibb’s conduct, and argues that rather than facing professional discipline (as some ethics experts suggested), Bibb deserves praise. The essay uses the episode to examine the meaning of familiar adage that prosecutors must seek justice, not victory; the question of whether a subordinate lawyer in an organization must defer to the judgment of his or her superiors; and the role of conscience in legal ethics.