National Association of Attorneys General
Rule of Law and the Role of Attorneys
This is the third of four rule of law articles to appear in NAAGazette. They are the work of attorneys who participated in the June 2014 National Attorneys General Training and Research Institute (NAGTRI) International Fellows Program.
This group was asked to consider the role of attorneys, both prosecutors and defense attorneys, in upholding the rule of law, including consideration of reduced resources, interaction with the judiciary and the community, and noting the existence of diverse interests and culture within their communities.
In recent years, budgetary constraints have drastically impacted courts worldwide. In 2013, for example, the United States entered “the sequester” -- -an $85 billion worst-case-scenario budget cut --- that was considered so devastating no one believed it would come to pass. To prevent massive lay-offs in the federal public defenders’ office --- the office primarily responsible for defending indigent federal defendants --- the United States Courts cut the pay of private, court-appointed attorneys by $15 an hour. And the United States was not alone in experiencing budget cuts that constrained court operations.
In the United Kingdom (UK), the Crown Prosecution Service (CPS) has paid out more than $50 million pounds in exit payouts to lawyers and managers in a bid to cut its budget by 27 percent by 2015. Resources are equally constrained in the Philippines. There, adequate funding for 733 prosecutors was lacking in the 2010 budget, leading to extremely high caseloads. These budgetary constraints beg the questions: how do the prosecution and the defense ensure that the rule of law is preserved in the face of such economic constraint? How do they preserve the rule of law when more is demanded for less?
Micro-Level Budgetary Constraints: The Prosecution
On a micro level, budgetary constraints require the prosecution and the defense to ensure that high caseloads and mounting pressures do not erode the rule of law in their day-to-day operations.
First turning to the prosecution, three areas are worthy of mention: (1) discretion, (2) prosecutor’s special standing or burden, and (3) accountability in decision making.
Former U.S. Attorney General and Supreme Court Justice Robert H. Jackson once said that prosecutors are one of the most powerful peace-time forces known in the country. The prosecutor has extraordinary control over life, liberty, and reputation. His discretion is tremendous.
Power is no blessing in itself, except when it is used to protect the innocent. Prosecutorial work requires using power morally and responsibly. Prosecutors are officers of the court tasked with administering and rendering justice.
The prosecutor’s burden goes beyond a preconceived notion of the rule of law.
Because the prosecutor wields the considerable authority of the state, he bears a special burden to ensure that the rule of law is respected. Perhaps no single position in the state directly impacts citizens in a more impactful manner than the prosecutor. As the person who initiates the power of the state against the accused, the prosecutor bears the burden to establish that the charged offense has been committed and then request that punishment be imposed. The prosecutor is on the front lines in implementing the rule of law. As such, the prosecutor must be mindful of every decision, how it affects the rights of the accused, its impact on the victims and witnesses in the case and correspondingly, the rule of law.
Accountability in Decision Making: A Victim’s Right to Review and Judicial Review (Philippines & UK case studies)
In the UK and in the Philippines, victims’ rights are very much on the agenda with the introduction of new processes whereby victims can challenge prosecutorial decisions. This is not presently the case in the United States.
Since June 2013, the victim has had a right to seek a review of prosecution decisions (whether to bring charges or to terminate proceedings) since the 2011 decision in R v. Killick in the UK Court of Appeals. This decision implemented Article 10 of the European Directive on victims’ rights and minimum standards and requires written explanations and further reviews in these cases. This right is in addition to being able to bring proceedings in the High Court for Judicial Review. Whilst accountability to victims is critical, particularly at a time when the CPS has made this a key priority for the delivery of its services, it provides a good example of doing more with less, but also reminds prosecutors that they are there to serve the public and that, in every case, members of the public are significantly impacted. This provides an important check on the rule of law and links in with minimum standards which must be followed for victims since December 2013 when a revised Victims Code was introduced. The days of prosecutors treating victims and witnesses as an afterthought and not involving them sufficiently in the explanation of approaches or helping through the proceedings are long gone.
In the Philippines, victims may appeal a prosecutor’s finding of probable cause or dismissal to the secretary of justice via petition for review, and this is frequently used. The power of review is granted to the secretary by law through Section 4 of the Republic Act No. 10071, otherwise known as the Prosecution Service Act of 2010, which provides:
“Section 4. Power of the Secretary of Justice. – The power vested in the Secretary of Justice includes the authority to act directly on any matter involving national security or a probable miscarriage of justice within the jurisdiction of the prosecution staff, regional prosecution office, and the provincial prosecutor or the city prosecutor and to review, reverse, revise, modify, or affirm on appeal or petition for review as the law or the rules of the Department of Justice (DOJ) may provide, final judgments and orders of the prosecutor general, regional prosecutors, provincial prosecutors and city prosecutors.” (Emphasis added.)
Additionally, under Department of Justice (DOJ) Circular No. 70, an appeal via a petition for review may be brought to the secretary within 15 days from receipt of the resolution or of the denial of the motion for reconsideration/reinvestigation. The secretary of justice may dismiss the petition outright if he finds the same to be patently without merit or manifestly intended for delay or when the issues raised therein are too unsubstantial to require consideration.
If information has been filed in court pursuant to the appealed resolution, the petition shall not be heard if the accused had already been arraigned. Defense lawyers however can defer arraignment, citing Section 11 of Rule 116 of the Philippine Rules of Court which provides that the existence of a petition for review before the DOJ is a ground for suspension of arraignment. The suspension however may not exceed 60 days counted from the filing of the petition for review. Any arraignment made after the filing of the petition shall nonetheless not bar the secretary from exercising his or her power of review.
No matter the outcome, all of these processes, both in the UK and Philippines, are demanding on the prosecutor’s resources and time. Although taxing, these processes strengthen the rule of law by increasing accountability.
Micro-Level Budgetary Constraints: The Defense
Turning to the defense, the overriding challenge in this era is increased caseload and difficulty providing adequate client service. While many of the implications are highly analogous to those faced by the prosecution, certain client-centered concerns pertain specifically to defense counsel, such as providing adequate representation, by humanizing the client in the court process, and by ensuring full participation in it.
Humanizing Your Client
As the primary link between the accused and the judicial system, defense attorneys have a singular duty to relate to and humanize their clients. Those subjected to the judicial machinery as criminal defendants experience the rule of law in a deeply impactful manner. As such, the defense attorney’s role extends beyond merely providing an adequate defense but must ensure that criminal defendants are engaged and fully involved in their own defense at the earliest possible time. By so doing, those who are experiencing the full impact of the state will feel empowered and not overwhelmed by the rule of law.
Defense Counsel Should Play by the Rules
Defense counsel has an obligation to disclose a case at an early stage every time to ensure a balanced presentation of the issues. Justice is not a game.
In the UK, for example, the introduction of Criminal Procedure Rules from 2005 has changed the behavior expectations of all parties in criminal cases. The Criminal Procedure Investigation Act of 1996 required the defense to file a case statement setting out in general terms what the nature of the defense. This became more important following the implementation of the Rules which are updated annually. The Rules brought about a sea change in the way criminal cases were to be conducted. The overriding objective is that criminal cases be dealt with justly, including the acquittal of the innocent, the conviction of the guilty, and dealing with cases fairly and expeditiously. Courts have a duty to manage cases and to do so parties must put their cards on the table. The court must see that justice is done and that does not involve allowing people to escape on technical points or by attempting an ambush. Prosecutors need to ensure these rules are complied with and that disclosure is prepared properly and in a timely way to ensure defense statements are triggered and supplied. The quality of these statements needs to be carefully scrutinized to ensure they are compliant. Many provide little information which requires additional requests to establish clear identification of the issues in the case.
Macro-Level Systemic Challenges
On a macro-level, the prosecution and the defense can and should advocate for systemic change in an economic environment that threatens the rule of law.
Efficiency and Performance Measurements
Financial exigencies often are linked to closer scrutiny to prosecutorial performance and measures in many jurisdictions are in place which potentially, if taken in isolation, can threaten the faithful appliance of the rule of law. The UK pays close attention to police detection rates, success being the charging of a suspect. This encourages police officers often to seek a charge prematurely which, in turn, has significant impact on the ability of the prosecutor to get the case ready in time, often within an environment of a court giving greater scrutiny to adjournments or applications to extend service dates and demanding a quickened pace to bring a case to trial. Prosecution performance is focused on conviction rates and the reduction of attrition, namely the early discontinuance of the proceedings or even a jury acquittal. The latter does not mean that the case had not been processed applying rule of law principles and there is plenty of debate as to whether a jury acquittal should count as a measure of poor performance, particularly taking account of the unpredictability of juries and the lack of explanations in their decision making.
The focus on performance risks distracts from rule of law principles. It is essential that performance measures truly reflect the correct appliance of the rule of law and do not distract from the fundamental purpose of the role of an attorney --- to uphold the rule of law and to see that justice is done. However a performance framework linked to that would be hard to envisage in terms of its structure and measures.
Investigative Quality: Paralegal and Police-Led Prosecutions
In some systems, non-law trained officials perform prosecutorial duties, potentially imperiling the conduct of criminal prosecutions. Such officials may lack awareness for key rule of law issues and appear against normal defense attorneys. Whilst the arguments of providing lower paid officials to present simple cases are well known, these changes are driven by financial considerations. As a result, law of rule protections may be compromised. Of course, offsetting considerations include the adjudication of such matters by law-trained jurists and representation of criminal defendants by law-trained defense counsel.
Incentivizing Plea Deals
In some systems, including the United States and the UK, the compensation scheme for public defense attorneys creates a powerful incentive to plea or settle cases in advance of trial. Under such schemes, the defense attorney is paid a set rate for a given defense. The amounts are often such that the labor required to bring the matter to trial will involve a very low rate of compensation compared to the labor involved. As such, a strong incentive is created to settle in advance of trial. The risk is manifest that the defense lawyer will be unduly eager to plea, thereby compromising the interests of the client. In the UK, payment regimes reward early guilty pleas and disincentivise postponements and even trials with radical changes to contested remuneration levels.
One of the most important problems of the criminal justice system worldwide remains how to apply and enforce law to a community of people with diverse interests.
Crimes cannot simply be viewed as a social problem in isolation from deeper social and economic issue; thus, collaboration with others in the community to address underlying issues is part of the prosecutor’s duty and responsibility. Prosecutors are uniquely positioned to exercise leadership in a community’s response to crime and should engage all members of the community in finding solutions and in assisting the law enforcement community to deter crime.
Crimes occur in communities with issues the prosecutor needs to recognize as these issues inevitably affect prosecution of cases. It is imperative for the prosecutor to establish and maintain strong collaborative partnerships across the justice system, social services, health care and the community in general as these partners bring to the prosecution process their perspectives, needs, and connections to other organizations and disciplines. These allies are a natural starting point for creating a multi-disciplinary approach in addressing crimes, which, in time, will help close the gaps in the criminal justice system.
Budgetary constraints threaten the rule of law by requiring more of attorneys in an environment that expects more for less and at a greater pace. And while the defense must safeguard itself against pressures that could lead to cutting corners and shortchanging clients, the prosecutor faces an even greater challenge. Because of the prosecutor’s special role and because of his position of power, the temptation to shortcut and deliver a diminished service poses a greater risk. Nevertheless, to ensure that the rule of law is everywhere preserved, both the prosecution and the defense must remain on their toes to the risks attendant with mounting economic pressure.
1  EWCA Crim 1608