District attorneys, discretion, and dialogue: How the culture of a prosecutor's office frames the relationship between superiors and subordinates

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O'Meara, Gregory J., S.J.
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INTRODUCTION|Failings in legal reasoning echo the failings of the Enlightenment project. The Creighton Law Review asked me to address the relationship between superiors and subordinates in a legal ethics context. In this paper, I consider how this question arose in one of the Oklahoma City Bombing cases. I focus on the Oklahoma State prosecution of Terry Nichols, one of Timothy McVeigh’s two co-conspirators, which followed Nichols’ federal conviction for conspiracy and manslaughter. I selected this case because eighteen years ago I testified as an expert witness for the defense on the issue of prosecutorial misconduct, and the decision of the appellate court continues to puzzle me years later. This essay examines an unpublished pretrial ruling by the Oklahoma Court of Criminal Appeals on a petition for a Writ of Mandamus filed by Mr. Robert Macy, the Oklahoma City District Attorney. The trial court barred Mr. Macy from the case for professional misconduct and also barred his entire office under a theory of vertical imputation, pursuant to Model Rules of Professional Conduct2 (“Model Rules”), rule 1.10.
The Oklahoma Court of Criminal Appeals disagreed with the trial court’s decision to bar Mr. Macy’s office. It upheld the lower court’s ruling that Macy himself must be removed from the case; however, it permitted his Assistant District Attorneys (“Assistants”) to continue the prosecution in which their boss had been excluded for failing to follow the trial court’s orders. It is difficult to understand how the ensuing prosecution by the Assistants would not be decisively influenced by the direction Mr. Macy had already set. This essay maintains that the Oklahoma Court of Criminal Appeals failed to appreciate: (1) the role of unreviewable discretion within public prosecutors’ offices and (2) how ethical and legal reasoning occurs only within the politically-charged, dialogical setting of public prosecutors’ offices. These structural and rational conditions predict that assistant district attorneys are unlikely to do anything differently from what their elected district attorney superior would do. This paper urges courts to consider how power, discretion, and the way reasoning works can create particular cultures within tight-knit organizations such as prosecutors’ offices. This understanding highlights the need for vigilant monitoring of process values, including the careful application of conflicts rules, to protect the public against distortions in decisionmaking by frontline actors in government such as assistant district attorneys.
Gregory J. O’Meara, District Attorneys, Discretion, and Dialogue: How the Culture of a Prosecutor’s Office Frames the Relationship Between Superiors and Subordinates, 51 Creighton L. Rev. 729 (2018).
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