by Melanie D. Wilson
This Article contends that, despite their unique, ethical duty to “seek justice,” prosecutors regularly fail to fulfill this ethical norm when removed from the traditional, adversarial courtroom setting. Examples abound. For instance, in 2013, Edward Snowden leaked classified information revealing a government-operated surveillance program known as PRISM. That program allows the federal government to collect metadata from phone companies and email accounts and to monitor phone conversations. Until recently, prosecutors relied on some of this covertly acquired intelligence to build criminal cases against American citizens without informing the accused. In failing to notify defendants, prosecutors violated the explicit statutory directives in the Foreign Intelligence Surveillance Act (FISA). In ignoring the statute, they also breached their obligation to “seek justice.” No one complained about the prosecutors’ misdeeds because only prosecutors knew that the investigative evidence had been concealed from defendants. In every FISA case, prosecutors alone enjoy access to the relevant surveillance information and singularly decide whether to withhold or disclose it. Such ethical breaches are prevalent in plea bargaining and “Brady” evidence situations as well. This Article contends that because of the non-adversarial and secluded, or as I coin it “anti-justice,” environment for moral decision-making in the FISA and other contexts, these ethical violations are predictable, if not inevitable. The review of case files for FISA evidence, like other, analogous, settings in which prosecutors make decisions in seclusion, does not create the milieu where the ethic of doing justice can flourish or, arguably, survive. Doing justice in our system, this Article concludes, requires adversarial judicial proceedings or some equivalent outside influence as a check on prosecutors’ power and discretion. Criminal justice scholars and defense lawyers have previously criticized plea bargaining and prosecutors’ handling of Brady evidence. This is the first Article to examine prosecutors’ recent defiance of FISA as proof that in each of these settings, justice demands capable adversarial, judicial, or public influences.
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