Martha Coakley, Ethics, and the Amiraults

On Friday, the WSJ published an excellent column questioning Martha Coakley's judgment regarding her handling of the Amirault child sex abuse prosecutions. As Rabinowitz writes, the evidence against the Amiraults was extremely flimsy, and public opinion eventually turned against the prosecutions. Coakley's continued zeal to press the case should therefore raise questions about her judgment, especially among left-wing types who are normally concerned about prosecutorial abuses of power.

Or... not. The ever-intelligent Radley Balko links to a post by a left-leaning feminist blogger M. LeBlanc who wrestles with these issues. Balko hits many nails squarely on their heads in his response to her.

One point that Balko and LeBlanc have overlooked: LeBlanc writes "So, what's the moral status of advocating that someone who is likely innocent remain in prison? It's a tough question. As far as I known, it's something that's routinely done by prosecutors everywhere.."

Actually, there already are canons on legal ethics that address this "tough question," including in Massachusetts. See Canon 3.8 (a), which provides that "The prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause." That is to say, if Coakley knew that the charge against the Amiraults wasn't supported by probable cause and went ahead anyway, then she violated Massachusetts's Rules of Professional Conduct for lawyers. I'm not sure that I can say she did or didn't; I'd want to know more facts about what exactly she knew, and how strong the factual basis has to be for the "probable cause" requirement to be met in this context.

Not a criminal lawyer, but I always understood the "probable cause" standard in other contexts as not totally toothless/not requiring total deference to the government. If I'm wrong, I'd appreciate being schooled by real criminal lawyers.

Now, the canon is worded in a strange way; "prosecute" and "charge" both suggest that it might be meant only to apply to prosecutors' conduct in the trial court, rather than at the appellate level. Still, the public policy undergirding the rule seems to be something to the effect of "It's bad for prosecutors to send clients to jail based on flimsy charges." The canons of professional conduct are also meant to guide lawyers' conduct even in situations in which the rules aren't binding. So even if the text of the rule, narrowly constructed, isn't meant to apply to appellate proceedings, it's still strong guidance to Coakley as to what an ethical prosecutor ought to do.

Maybe M. LeBlanc disagrees with the current formulation of the relevant rule of professional conduct. That's perfectly understandable; there's plenty there that I disagree with too. I write this post to emphasize that Coakley wasn't trying to figure out her moral duties in this situation in a total vacuum. There are laws meant to cabin prosecutorial zealous advocacy. That there are non-trivial arguments that Coakley disregarded these binding ethical obligations makes the case against her judgment even slightly stronger than Balko claims.