MacLean on Freedman on Prosecutors

Charles E. MacLean (Indiana Tech Law School) has posted Anecdote as Stereotype: One Prosecutor's Response to Professor Monroe Freedman's Article 'The Use of Unethical and Unconstitutional Practices and Policies by Prosecutors' Offices' (Washburn Law Journal, Vol. 52, No. 1, 2012) on SSRN. Here is the abstract:

I am thrilled to have this unique opportunity to respond to Professor Monroe Freedman's lead Article in Issue One, Volume 52 of the Washburn Law Journal. Professor Freedman's voluminous work on lawyers' ethics has often been insightful, groundbreaking, and at times served as a catalyst for action. Consequently, it is an honor to have this opportunity to provide a counterpoint to his lead article. As a twenty-year felony prosecutor before entering the Academy, I have been in the trenches and met thousands of prosecutors who were in those same trenches. I share that prosecutor perspective here.

In my view, Professor Freedman's strategy of using a series of anecdotes to indict the entire corps of prosecutors is misleading and a bit dangerous.

Although it adheres to the mantra, oft-heard in the Academy, that many prosecutors are racist, self-aggrandizing self-promoters, who are out solely for re-election or the next notch on their belts, and although his Article seems copiously footnoted, I respectfully maintain that the lead Article takes the reader on a merry chase.

To be sure, there are some unethical prosecutors in the ranks. Some prosecutors focus more on victory than justice. Others elevate expediency over their purported roles as ministers of justice. Still others are carried along by the energy of “wearing the white hat” and fighting each day for the public; at times, that energy is subverted into corners being cut and disclosure and “minister of justice” obligations taking a back seat. But the lion's share of those in the trenches selected their prosecutorial career path to do good works, to serve the public, to seek justice, and to protect the defendant as much as the victim and society.

The aim of this response is to tell the rest of the story, a story that can be lost in the compelling anecdotes presented by Professor Freedman. In particular, this response addresses Professor Freedman's anecdotes, his cited authorities, and his attempts to color an entire profession with the taint of a few anecdotes. In my view, the next generation of scholarship on lawyers' ethics would be better driven by statistics than anecdotes.