Speaker 1 (00:01.998)
I'm proud to be at Stetson College of Law because I believe we believe in that. I will tell you as a coach of our trial team competitions and our ADR competitions and our moot court competitions, we're known throughout the country for doing it right. We are known for, we're gonna beat the socks off of you, but we're gonna beat it cleanly. And that's such a wonderful reputation to have that when a student sees that they're going up against Stetson,
know they may have trouble winning, but they're not going to get cheated on. And that's so important to us and has been for the decades that I've been involved with our competition teams.
This is Real Cases, a legal podcast presented by the Stetson University College of Law. We'll sit down with Stetson Law faculty and students to examine today's critical cases and debates in environmental, international, elder, and business law, plus the role of social justice in these fields. Join us as we open the case file.
Speaker 2 (01:06.414)
you
Speaker 5 (01:13.354)
I'm Daniel O'Keefe, Master of English Literature from Indiana University. Today we're discussing Stetson's new criminal law concentration with four professors who teach in the field. We'll be talking with Professor Ellen Podgor, a former deputy prosecutor and criminal defense attorney who's published numerous books and over 70 law review articles and essays on criminal procedure and white collar crime. Professor Judith Scully, who founded Stetson's social justice advocacy concentration,
directed the Stetson Law School Innocence Initiative, and who previously managed her own law firm in Chicago focused on civil rights. Professor Susan Rozelle, who researches and publishes in the areas of criminal responsibility and death qualification, and who co-authored an amicus brief for the National Association of Criminal Defense Lawyers in the 2007 Supreme Court case Utech v. Brown.
and Professor Roberta Flowers, a former state and federal prosecutor who has coached the trial, arbitration, and moot court teams to national championships and who has lectured worldwide on legal ethics.
So I'd like to start by asking what drew each of you to the study of criminal law. Professor Scully, would you like to go first?
So for me, I actually started out as a civil rights litigator, primarily, almost exclusively actually in the first few years. And one of the things that I realized is that whenever someone was...
Speaker 4 (02:46.828)
the victim of excessive use of force, they were also countercharged with assault and battery of an officer. And so in order for me to actually prevail in a civil rights litigation suit, I had to make sure that the underlying criminal legal charge was disposed of in favor of my client, right? And so I wound up doing it.
because I wanted to make sure that my clients in the civil rights cases were adequately and appropriately and yes, that they were adequately and appropriately represented in the criminal legal charge against them. So we can clear that and move forward with the civil rights litigation. And then once I started doing really state oriented criminal law,
I fell in love with the criminal legal system and being a defender of individuals accused of crimes. And I wound up moving into the federal litigation, criminal litigation arena as well. And then my practice became primarily for federal criminal cases. When I was a first year in law school, my favorite class was criminal law. And I approached my criminal law professor.
Professor Roselle.
Speaker 4 (04:07.066)
towards the end of the semester probably and said you know I love this subject it is my favorite by far but I just don't see myself practicing on either side I don't see myself prosecuting I don't see myself defending and he smiled at me and said you can always teach
And here I am.
Heh.
Wow.
Interesting. So you felt like you were very much moving in the direction of teaching right out of law school?
Speaker 4 (04:41.432)
funny, I was always really most interested in criminal law. I found it the most fascinating by far. I enjoyed law school. I had a fabulous good time. think if anybody doesn't enjoy law school, they're doing it wrong. Law school is so fun. So I liked all of my classes, I really did. But criminal law has always had a special place in my heart. I just always found it the most interesting. I've always been interested in psychology and sociology. And there's a lot of that in criminal.
Bye!
Speaker 4 (05:13.748)
That said, I knew that I couldn't practice it because I would take it home with me. The fat patterns are so stark and emotional. I was tempted, you when I was deciding what I want to be when I grow up. I thought about being a psychologist, right? The psychology is always interesting to me. Same thing. I couldn't do that because I would take it home with me. But
being an academic allows me to study the subject that I love, but still have that little bit of remove that I need to keep my own emotional health intact. And then I was very fortunate. My first job after law school, I was a judicial law clerk. worked at the appellate court in the state of Massachusetts. And then I clerked at their Supreme Judicial Court also. And the way that court works, about half of the docket for both the appellate court and the Supreme Judicial Court was criminal.
So quite a lot of exposure to the law that I loved best, but from the perspective of the third party objective observer rather than from the perspective of the advocate. And again, that just gave me the remove that I personally needed to handle the content, which is pretty heavy.
Mm. Yeah. how about you?
Well, I went to law school because I
Speaker 1 (06:40.086)
Was a psych made psychology major and I was working with emotionally disturbed children and thought I would go on to become a psychologist and then realize that the people that were deciding the fate of these children, whether they would have to go back with their parents or not, was not the psychologists. It was the lawyers and the judges. So I went to law school initially because I thought I really wanted to work on defending children in.
possibly keeping them from parents that they shouldn't have to go back with. I got into law school and fell in love with the criminal side of it. So the idea of prosecuting these parents as opposed to, and in that way, keeping the children away from those people that should not have children to begin with and certainly shouldn't get a second chance with them.
So I knew early on that I wanted to be a prosecutor. You know, had an opportunity to to clerk with it with the Colorado Supreme Court and said, no, I want to go be a prosecutor. I want to be a prosecutor. So went right out of law school into the state attorney's office in Colorado. It's called the district attorney's office and prosecuted at that level for about five years and then had the opportunity to come to Miami.
and be a prosecutor in the federal prosecutor's office. And so, and in the federal prosecutor's office did a lot of almost exclusively white collar crime, public corruption.
Professor Pogor.
Speaker 2 (08:14.74)
always from a very young child wanted to be a criminal defense attorney. I didn't look at becoming a professor, but I did look at being a criminal defense attorney early on. I was fascinated with the position. I think I watched every Perry Mason show that had been on.
The idea and the concept of representing individuals, especially ones who might be innocent, was very attractive to me. When I went to law school, throughout law school, I was fascinated with criminal law. I wanted to go into criminal law. And I knew from the beginning that was going to be my focus. When I got out of law school,
What I found was becoming a criminal defense attorney was not so easy during the time that I went to law school. I went to law school at a time where as a woman, it was difficult to get hired. And I was hired by the prosecutor's office. And so that's where I started. And I did two and a half years as a deputy prosecutor as
you
Speaker 2 (09:34.626)
basically the only woman in the office there as an attorney, trying major homicide cases, rapes, robberies, you name it, I have tried it. Doing also many of the smaller type cases, but a lot of the major felonies too. And after two and a half years in the prosecutor's office, I then left. It was a state prosecutor's office.
I then left and went into private practice.
Speaker 4 (10:09.826)
And I also had that similar experience of being the only woman, often, in the federal courthouse in the Northern District of Illinois. I was one of a handful of women doing criminal defense, federal criminal defense work. So I definitely feel like that has shaped my perspective on what it means to practice law as well.
In what ways?
Well, you know, in terms of being the only woman, right, there's a lot of pressure in the courtroom around, you know, the focus and how you perform and what you do in order to win a case. You're scrutinized in a very different way. You're treated. You're not one of the boys, right? There is there is a feeling of the boys club when it's all men.
And, you know, we're not one of the boys. so trying to professionally navigate that pathway is challenging. And it adds on to the other pressures of being an attorney.
Do you find that students coming into law school often come in expecting criminal law to look or feel a certain way?
Speaker 2 (11:30.638)
Yes. Unfortunately, yes. They've watched a lot on TV. They've seen movies with criminal law issues. And they walk into law school expecting that drama. And it's not there. mean, in our basic criminal law class, what we're learning is statutory interpretation. And it can be very dry in comparison to what they anticipate.
I actually spend the first couple of minutes of my first class talking about that to sort of reshape how they're thinking about this course that they're about to take that they thought was going to be procedure, criminal procedure with investigative stops and searches and DNA and all of these things that, no, it's the way I teach it, it's basically a statutory interpretation course.
with other things too.
Yeah, I was just going to say I have had some early on 1L students actually cite to law and order when they are making remarks in class. And I have to pause and take a deep breath during those time periods and explain, well, law and order is a TV show. And we are focused, as Alan said, on statutory law. And we're looking at the exact words of this statute. So let's stick to the text.
rather than our imaginations of what criminal law might be or could be.
Speaker 5 (13:05.55)
So the first day you don't teach them exactly the most dramatic way to shout objection.
Right.
Do you find that there are differences in inclination or interest that tend to steer people early on in the direction of either working in prosecution or working in defense? How does that usually shake out?
Yeah, absolutely. I think there is a sense that I always try to kind of dispel that, you know, the people that are really going to protect the defendants are the people on the defense side. And so people that really kind of have a heart for the underdog usually are going to be looking at the
public defender's office or criminal defense side. Those that are a little bit more attuned to law enforcement, more attuned to holding people accountable are gonna be leaning towards the prosecution side. But what I always try to explain to people is that the reason I did a public defender clinic in law school and coming out of it, I said, I don't wanna beg for the right thing to happen.
Speaker 1 (14:26.188)
right, which I always felt like poor defense attorneys are always begging for the prosecutor to do the right thing. I want to be on the prosecution side so I could do the right thing by right by defendants, right? Because if you don't understand that, but by the grace of God, all of us would be criminal defense lawyer defendants. You can't be a prosecutor. And so I think
To answer your question more succinctly, and I apologize for going on and on. Yes, I think traditionally or normally there's kind of an inclination based on kind of what your heart is to send you one side or the other. But understand that a lot of prosecutors end up in defense work. I mean, that's not unusual for a prosecutor to do three or four years in the prosecutor's office, get some really good trial experience and then end up on the defense side.
So although we see it the law school area, once people kind of get out there in the world, it's not unusual for people to move from prosecution to defense. Not as often that defense moves to prosecution, but certainly prosecution to defense is not an unusual career path for many criminal practitioners.
And I tell students the same thing. It was that first year criminal law professor who told us, and I'm sure he told every one of his classes, that you can do more good for more people as an effective ethical prosecutor than you ever can as a defense attorney. Simply because of the way the system is structured, you have more ability to affect more people. And so I think...
I think I beg to differ, Bobbi. I don't know what the empirical numbers would show as far as folks who start in defense and then go to prosecution. I think you do see movement in that direction too for that reason, because people who start in defense work come to the realization that they might, just like you did, end up wanting to be on the other side where they can just make the right offer in the first place or decline to prosecute a case that really should be declined.
Speaker 2 (16:38.444)
Thank you.
They can make a diversion recommendation. We're really diversion outcome. So I think you actually see movement in both directions. And I tell my students all the time that the most effective criminal litigators have experience on both sides of the aisle.
Right, yeah.
Yeah, and Dan, we try to make that happen here at Stetson. We try to encourage students, even if they think they want to be a prosecutor, we encourage them to do a public defender clinic so that they can really get a sense of the humanity of criminal defense work and the humanity of the criminal justice system, at least what it needs to have. And then they can take the clinic in the prosecution side, you know, maybe closer to where they're going to get hired. And I do the same thing with the opposite way.
somebody says, I really want to be a defense attorney, say, okay, you got to go do a prosecution clinic because you got to understand how prosecutors think in order to be an effective defense attorney. we try to make that happen for students that kind of get the knowledge of both sides while you're in law school so that you'll be a better practitioner, whichever side you're going to be on because this works the best.
Speaker 1 (17:52.044)
when there is an effective advocate on the prosecution side and effective advocate on the criminal law side. I mean, that's how the system works.
I would add to that that I encourage students to go into prosecution for just that reason. I think that those who are thinking about defense sometimes would be better off going into prosecution to help correct the injustices in the system and also to learn the system so that they'll be better criminal defense attorneys.
Yeah, I, I've been really fascinated by, I'd say in the last five, six years, we've had lots of students apply for the social justice advocacy program who were prosecutorial oriented, right? And it, it really was a challenge for me to kind of switch my lens to think through like, okay, how can, the social justice advocacy lens help them in doing and performing their jobs as prosecutors? So.
And I mean, there's also opportunity for prosecutors to develop programs that prevent crime before they happen. And so that's another aspect that really intertwines social justice advocacy with the prosecutorial perspective. And I think regardless of whether you are defense-oriented or prosecutor-oriented, students who are attracted to the criminal law
legal system in general have a strong sense of what they believe is right and wrong.
Speaker 4 (19:29.774)
And so part of our mission as professors helping to shape their perspectives here is to make sure that they examine a wide variety of different scenarios so they can test their own perspectives on what right and wrong actually is. What does it mean to be right? What does it mean to be wrong? Is this really about right and wrong or is this about evidence, right? And what the evidence shows. Because sometimes those two things can
not always a line.
What are some issues you find law students face as they move from their legal education into actual criminal law practice?
think one of the problems we have here at Stetson is that a lot of our students who go into criminal law, the defense side, have been competitive in the trial team area. And so they think they're these fantastic lawyers that are going to win all their cases. And the truth is, first of all, prosecutors don't win all their cases because the cases that go to trial are the ones that are
what we would call the dogs, but definitely the hard cases to prove. And so, you you're a prosecutor, you're like, how could I have lost that case, right? And then on the defense side, the idea being, well, I'm this amazing trained trial lawyer, I'll win all my cases. And then finding out that no, you're not gonna win all your cases, because again, the cases that go to trial.
Speaker 1 (20:52.102)
are the cases that are the questionable cases. The cases that aren't questionable are going to get pled. They're going to settle. And so the cases that go to trial are going to be the cases that are 50-50 on winning. And so I think we have to continue to instill that in our students, even those that have been very successful in competitions, that the real world is very different.
you're not going to win all your cases. And I always tell students, you win all, if I have your attorney that says on the criminal side, I've won all my cases. I'm like, you're not trying the right cases then, because the cases you're trying are the cases that should have settled and you shouldn't have wasted the resources on those kinds of cases.
That's an interesting point too. I hadn't thought about that question from the standpoint of prosecutors, like just the resource management that must go into determining which are you actually going to try.
yeah.
The way the case is settled 90 plus percent.
Speaker 5 (21:52.568)
Yeah.
that I think.
I'll just to clarify right the reason that the, that the defense attorney often feels like they're losing. Because from the client's perspective, so they fled, right? They took a guilt. They. They fled guilty something that was a compromise. Guilty plea, but it's a guilty plea.
they, they, to, but still.
Thanks.
Speaker 1 (22:16.108)
Yeah, and those are the really tough conversations with victims where you decide to, you know, it was an assault on this person and you decide to plea that case maybe to something that's not quite as serious or you agree to a sentence that's not quite as difficult or harsh and explaining to that victim why again that doesn't reflect on them even though it really feels like it does. Right. So those are some tough conversations.
Professor Poggor, could you give me a broad overview of the criminal law concentration?
It requires that students do a basically an advanced type paper in the area of criminal law. That is going to be one of the aspects of it. So that can either be a seminar paper by taking a seminar that deals with one of our criminal law topics, or it can be an independent research paper or a directed research paper.
So students have a choice of how they want to do their written advance paper, but it is going to require a written advance paper. It's also going to require a certain number of pro bono hours in a criminal related area so that a student who wants this concentration and this designation, which I think is important on their resume,
and also for their future, getting the knowledge altogether are gonna have the opportunity to have done some pro bono in that particular area. I think one of the most enlightening things that is really great about this concentration is the fact that you get a mentor. And you're gonna have one of the four of us as a mentor to help you through. So for example, a student who wants to go into white collar crime is gonna be assigned to me.
Speaker 2 (24:19.404)
A student who's probably gonna do social justice advocacy is probably gonna be with Professor Scully. And we're gonna be able to help these students and spend more time with these students who are focused in this particular area. We're also gonna try to get the students an outside mentor also.
Yeah, I was going to say the networking aspect of our concentration program is also important, right? We'll be encouraging our students to be connected to other criminal practitioners and we will assign mentors to them who are practicing attorneys as well as having a faculty mentor, right? I think our goal really is to make sure that our students have a really strong portfolio upon graduation so that
They have developed at least a small area of expertise, either through their writing or through their experiential opportunities, whether it's in a clinic or a pro bono placement, but that they will have a strong portfolio that indicates not only am I interested in criminal law, but I have received a lot of, I have done, sorry, I've done a lot of work.
around criminal legal reform, our criminal legal practice, our litigation, but that they have some specialty that makes them stand out in the overall job search as well after graduation.
Professor Flowers, you brought up trial advocacy at Stetson, which is obviously one of Stetson Law's most famous strengths. And so I'd like to ask you a little bit about how the criminal law concentration kind of connects with trial advocacy at Stetson and how it builds on that.
Speaker 1 (26:04.206)
Yeah.
Well, we're so excited to have finally a criminal concentration here at Stetson. And it's because we see a lot of our students who come to Stetson who really want to go out and be practitioners. And so we already had this amazing advocacy center and advocacy concentration. And so we really see that as complimentary to each other. For those students who really want to be criminal practitioners,
they can get the real in-depth criminal law side of it at the same time as learning the skills on the advocacy side. So we really see it as complimentary. We allow our, and complimentary with our social justice advocacy, right? So the idea being that, you you've got a real social justice advocacy heart.
but you really want to do that kind of justice in the criminal law section, in the criminal law world. You don't want to work for a nonprofit. You really want to make it, be a, you know, a person for change in this area. Then the criminal law allows you to have that certificate and that concentration in both the substantive area of law and the social justice advocacy. And so the same with the advocacy, that really depth of criminal knowledge,
and then the advocacy skills to really make a difference with that knowledge. So they're really complimentary and that's why we really love that we have this kind of ability to let students do both of those, right? Do the advocacy side and the criminal law or do the social justice advocacy side and the criminal law. So we wanna give students a broader base for whatever they really want to do when they get out of law school.
Speaker 5 (27:55.458)
Professor Scully, could you tell me a little bit about the courses students take when they're concentrating on criminal law?
Sure. So we have several electives that we are encouraging students in the criminal advocacy or criminal law and litigation concentration program to take. So we do have upper level criminal procedure courses, some that focus on constitutional criminal procedure and some that focus on the rules. You know, you can go in either the state or federal direction or both.
But we have several courses that just focus on the key criminal procedure issues. We do have a couple of courses that also focus on issues related to thinking about Susan Rozelle's course on, why am I drawing a blank, on responsibility, criminal responsibility, right?
So those are the ones that come to mind immediately. Ellen, I don't know if you had, and White.
And then of course white collar. Yes, white collar is an aspect of the new criminal law concentration also. For those students who are interested in looking at a specific aspect of criminal law, white collar crime is something for them to think about. Some students in the concentration may also apply for the concentration in business law.
Speaker 2 (29:26.604)
So there may be some overlap between the business law and the criminal law concentration when it comes to white collar crime.
Mm-hmm.
White collar crime usually is involving students who are going to go into the federal system or into major law firms. There are a few boutique type law firms that do do white collar crime, but a lot of the firms are major firms. And a lot of it also involves corporate compliance. So white collar crime can be something where
Hmm.
Speaker 2 (30:02.198)
You are teaching a corporation what not to do so that you are not charged with a white collar crime.
Mm-hmm. Mm-hmm.
Right. And then on top of that, we had mentioned earlier that there are appellate courses that students can take as well to really increase their writing skills. And in addition to that, we have experiential and skill oriented courses, right? So that students can be placed in the public defender's office or the prosecutor's office while they're still law students to get real life experience representing clients. And that's also part of our curriculum.
as well, right? Yes, we want you to learn the procedure to really.
develop your skills in advocacy. So our trial advocacy advanced courses are also part of the criminal law and litigation concentration program. But we also want you to have experiential practice as well, right? So those experiential opportunities that are offered by our clinic office are encouraged and required for each one of the students who will be in the criminal law and litigation concentration program.
Speaker 2 (31:17.804)
And those clinic opportunities include things such as the prosecutor's office, two different ones that we have an arrangement with as part of our clinic, public defender offices locally. We also have the U.S. attorney's office. So some students may do their internship with the U.S. attorney's office as part of this program.
And then in addition to that, you realize that you're not just representing clients when you are a criminal litigator. You also have to do cross examinations and direct examinations of expert witnesses. So we have advanced courses in expert witness practice as well that will help add to a student's understanding of what it means to be a criminal lawyer as well.
wow, interesting. Yeah, I imagine there must be a lot of overlap with the trial advocacy program.
Yes, absolutely. Like when we say it's law and litigation, we are encouraging our students to get as much trial practice as possible, both from the practice experience in the trial advocacy classes, but also in real life experience in our clinics as well.
One of the courses I teach is white collar advocacy. And white collar advocacy combines both the criminal white collar side and the advocacy where students have to get up and give an opening statement, closing argument, a cross examination or direct examination, but in the context of a white collar problem.
Speaker 5 (32:54.454)
Mm-hmm. Yeah, let's talk a little bit about white collar crime, because I think that's a fascinating topic, and I think one that a lot of people might really be drawn to thinking more about. Could you talk a little bit about what drew you to focus on white collar crime as a specialty?
So in my last few years of legal practice in Indiana, I represented several attorneys and judges. And often they were charged with ethics violations. They were also charged with criminal violations. And it got me very interested in the side about how can we correct what might be happening amongst criminal lawyers. It also got me interested in the side of white collar crime.
where somebody might be charged with something that they shouldn't have been charged with. So I became interested in white collar crime for that reason, went back and got an MBA, a master's in business administration from Chicago to sort of build up my academic portfolio of what white collar crime was and learn the corporate sphere of it also. But.
That was basically what interested me initially in it and got me also into law teaching.
Mm-hmm. Do you think that many aspects of white-collar crime are somewhat opaque to public understanding?
Speaker 2 (34:31.542)
Very much so. As with many other aspects of criminal law too.
you
Speaker 4 (34:38.144)
Any type of law for that matter.
Yes.
Yeah. But it seems like white collar crime in particular, and specifically within the aspect of criminal law, in the same way we were talking about how most people sort of have their cartoon version of criminal law in their head. They feel like at least when it comes to what to do in order to not be a criminal in the most obvious senses, they understand how to act. But I feel like within the white collar context, seems like you were saying before that
one of the directions that someone could go in if they're focusing on white collar criminal law is just educating people working at companies on how to make sure that they're not violating the law as part of just their general operating procedure. So I think that it's something that even for people who are pretty intimately involved with it, it could still be very opaque.
Very much so. I mean, you talk about statutes like insider trading or something like the Racketeer Influence Corrupt Organization Act or mail fraud or wire fraud, and you say it to a person standing on the street, they're not going to understand what you're talking about in many cases. If you say, Martha Stewart was charged with a crime, they're probably going to say, she was charged with insider trading.
Speaker 2 (36:07.948)
The answer is no, she was never charged with insider trading. And so learning the nuances of these statutes and these federal statutes can be very difficult to understand. Like the mail fraud statute was written in 1872. So you're dealing, it's been revised a few times, but it's still, it could be cumbersome to try to figure out exactly what
what is intended and what is needed here. So yes, as a white collar attorney, you serve in many different roles. Even if you're on defense side, you still are kind of like a prosecutor because you're doing internal investigations in companies and trying to figure out if they were violating the law and trying to help them correct the problems within it. So there's a sort of an extended prosecutorial role.
in the white collar area that you don't see necessarily in the state criminal law aspects.
Professor Flowers, could you talk a little bit about your work on public corruption as a federal prosecutor?
Well, in Miami, had what was called the Public Corruption Unit. And so the Public Corruption Unit really looked at all public officials that were involved with crimes or allegedly involved with crimes, everywhere from a police officer who's planting evidence to a congressman that's stealing campaign funds. And it's an interesting area of law.
Speaker 1 (37:46.476)
because a lot of times, especially in the Miami area, there were people who really didn't understand, especially if they weren't born in the United States, that you can't bribe a council member to give you a zoning variance. So that's just not the way we do it here.
And so as a prosecutor, one of the things I would have to do is, especially if, which you do a lot, you had that person plead guilty so that you could get the public official, but you had to convince them that they had to stay on the witness stand. Yes, I did wrong, but it was just almost.
unbelievable to them that you couldn't just pay off your council member. That just didn't make sense. And so that was an interesting kind of a cultural issue with regard to the witnesses. What was interesting for me was I moved from Miami, U.S. Attorney's Office to the Fort Lauderdale one, which was the same jurisdiction, but just a different location. The political corruption up there was very different.
It was very much about good old boys helping good old boys, right? And political things happening more as kind of a, all in the same club, we're gonna help each other out, right? So a very different public corruption, just, you know, what, less than an hour away from each other. So public corruption is obviously a really interesting.
area, always tell people that I loved being in public corruption because I knew what everybody was doing, right? Like I was kind of a voyeur. And I knew what politician was doing what, right? Or at least what we were able to uncover. But public corruption, and even white collar to some extent, is also difficult. So for example, the last statistic I saw was out of 10 public corruption cases that are investigated,
Speaker 1 (39:52.51)
only one will actually go to indictment. In other words, only one will get charged. So there's lots of, we think there's something happening, but we really can't figure out enough evidence to make that happen. And so that's really so important with regard to the secrecy of the grand jury, right? Because
If I'm looking at a congressman and I end up not having enough evidence on them, but my investigation has gotten out there in the press. Now that congressman is completely tainted for his last, the rest of his, his career, even though I wasn't able to actually charge the crime. So on the one hand, we have to make sure that our investigations are handled in a way that doesn't impact negatively on people that will never charge.
And we also have to have prosecutors who are ethical. coming to the other side of it, Prosecutors and lawyers in general, I believe, have gotten a bad rap. We've got a bad rap because there's been a lot of bad apples. And there continues to be bad apples.
on both the prosecution side and the criminal side and in all areas of law lawyering. So one of the things we have to really emphasize, I believe, is that this is such an honor to be a lawyer. But because we self govern each other, we have to be willing to make those ethical decisions, regardless of whether we'd rather to do something else because it
because it'll help my client, right? So ethics are such an important part of the law. And I think we do a really good job here of really emphasizing professionalism and ethics and doing it right and always doing it right and not letting the pressures of the job skew you from doing it right because our job involves
Speaker 1 (42:05.58)
people's lives. We have to keep considering what we're doing. One of the things we talk about is that if I'm a civil lawyer or I'm a state planner and I do a will for somebody,
and I do a really bad job, I'm unethical, that person is never gonna know that I did a crappy job because they'll be dead by the time the will comes to fruition. And because of that, we as lawyers have got to make sure that we're abiding by the rules because our clients can't tell if we are or not. They don't have the kind of intimate knowledge of how the work out works.
And so if we are going to continue to have the trust of our clients, we have to continue to talk about what professionalism and ethics is. you know, I'm proud to be at Stetson College of Law because I believe we believe in that. I will tell you as a coach of our trial team competitions and our ADR competitions and our moot court competitions, we're known throughout the country for doing it right. We are known for
We're going to beat the socks off of you, but we're going to beat it cleanly. And that's such a wonderful reputation to have that when a student sees that they're going up against Stetson, they know they may have a trouble winning, but they're not going to get cheated on. And that's so important to us and has been for the decades that I've been involved with our competition teams.
Professor Rozelle, you studied the topic of death qualification. Could you talk a little bit about what that is and what drew you to research it?
Speaker 4 (43:51.554)
jurisdictions that have the death penalty.
one of
The concerns.
is whether the jurors who sit on trial are going to consider imposing a
the jurors on that trial are to be willing to kill who death sentence or whether they are philosophically opposed to the death penalty such that concerns about putting someone to death would actually lead them to not follow their instructions or their oaths as jurors to follow the law.
Speaker 2 (44:28.718)
So I guess.
Let me give you some background.
when.
When it's a capital case, defendant is convicted. And typically the question is going to be does the defendant deserve life or death?
If addicted, then.
Speaker 2 (44:45.253)
And wow.
How the.
Genticum.
fact question, did the person do the thing and the government has to prove that the person did the thing beyond a reasonable doubt. And if the jury is convinced beyond reasonable doubt that the person did the thing, then the that they are being asked is, know, did the government do its job? And then the answer is yes. The answer is yes. They're going to get convicted. Question for the jury in the sentencing phase of a capital case.
The question.
Speaker 2 (45:12.856)
did.
Speaker 4 (45:20.288)
Is different because it's not a fact question. Did this happen? The government proved to be unreasonable doubt that this person did this thing.
It's a it's a it's a what is
Good question. Is the right thing for society question? This person be put or should they spend the rest of their life behind bars instead? question. Part. At the jury that the juror and say, well, you're not doing your job when you came with an answer that was either yes or no. For a death sentence.
Should the to death.
Speaker 2 (45:43.596)
And the short is harder to point.
Speaker 2 (45:55.735)
So if you vote.
You know, are you following your oath? Are you following your instructions? And yes, this person should die. Are you following your oath? Are you following your instructions and saying, yes, this person should get a life sentence instead. Both of those are permissible answers in the sentencing phase. Some people feel so strongly about capital punishment one way or the other. They are actually not willing to answer facts.
in saying.
Speaker 2 (46:22.189)
that.
to the.
question at the conviction stage, honestly.
I don't.
think there's anybody who feels so strongly in favor of the death penalty that they say, yes, this person did this thing when they don't think the government improved. There are some people who feel so strongly against the death penalty, that rather than run the risk, that this person whom they helped convince, isn't going to be sentenced to death. Some people would just vote, the government hasn't met its burden, even when they think it has. So they're actually going to lie at
Speaker 2 (46:37.804)
would say.
Speaker 2 (46:53.451)
is them.
Speaker 4 (47:03.928)
conviction state. Those people wouldn't be qualified to sit on the jury because they would be violating their oaths and not following the instructions that they were given. So those people are called nullifiers. They are properly excluded from the jury. There's another kind of death penalty opponent who can also be excluded from the jury. And this one's a little bit more nuanced. You'll feel so strongly about the death penalty.
people who
Speaker 2 (47:33.388)
that there aren't any evidence in
They are willing to listen to events in aggravation. What the aggravators are, I don't care how heinous the crime, I don't care how many victims. I'm always going to vote for life, regardless of what the evidence says. I'm just gonna put my fingers in my ears and sing. la la. Mary had a little lamb, right? I'm not paying attention. I'm just going to go for life all the time. Those people are also not going to follow their instructions or their oaths as jurors.
I don't care what.
Speaker 4 (48:03.734)
because they're not listening to the evidence, they're not weighing the evidence, they're not considering it the way they are sworn to do.
both the
defense and the government have an interest in jurors who will listen and weigh and consider carefully the evidence both in aggravation and in mitigation. So it is, it's also true that there are some jurors who believe that anybody who kills someone deserves the death sentence and they're not willing to listen to the evidence and mitigation because anyone who could do that sort of thing.
deserves death and I'm just gonna put my fingers in my ears and sing la la la, Mary had a little lamb, I'm not interested in listening to all of your mitigating circumstances. You did that thing, you deserve to die. That juror is also not going to follow their instructions or their oath as a juror to consider the evidence carefully and weigh it. And so there's a lot of law on what that means and I'm interested in it. Really interesting empirical data that shows jurors who have been death
There's some.
Speaker 2 (49:04.222)
who have been
qualified and that is the process during one year where the lawyer asks the prospective jurors typically the judge actually asked these questions but sometimes the jurors do it or sometimes the lawyers do it. Where the potential jurors are asked the questions.
Could you be?
on in answering the guilt not guilt question to consider all of the evidence at the sentencing phase. Give consideration to both possible verdicts, death and life. Really good evidence that shows jurors that have gone through that process of answering those questions are more likely to vote to and are more likely to vote for that. Who have not gone through the death qualification process?
Would you?
Speaker 2 (49:32.621)
and give
Speaker 2 (49:37.304)
There's no.
Speaker 2 (49:44.75)
perfect.
Speaker 2 (49:48.397)
than hers.
Speaker 4 (49:52.248)
And there's some interesting psychology on why that would be, which we can go into or not as you have patience and time.
Yeah, I mean, Susan, you raised the issue that I've always thought is that the kind of person, I'm being stereotypical, but the kind of person usually that is going to be death penalty qualified.
Is usually going to be a prosecutor's jury right a prosecutor juror right it because of their law enforcement and accountability and all of the things that kind of go with being okay with the death penalty and so it's always felt to me like and I didn't do definitely work but that that we don't allow the people that would way usually way against the death penalty on the jury we only.
death penalty qualify you, which is kind of an interesting one side and not the other side. So I've always thought it was kind of interesting. I haven't done any death penalty research or anything.
No. Like I said.
Speaker 4 (50:55.416)
You're absolutely right. And it does, the data bears that out. When you exclude people for scruples against the death penalty, and now technically speaking, we don't exclude people merely for scruples against the death penalty. We only, in theory, exclude people who are so opposed to death penalty that they wouldn't listen to and can say, I think as a practical matter, we actually do exclude some people who aren't technically supposed to be excluded. The bottom line is,
to the way it is.
Speaker 2 (51:24.686)
is when we end up that is significantly.
We do death qualification with a jury.
Speaker 4 (51:32.434)
not representative in a lot of other ways. When we death qualify jurors, we actually end up excluding a lot more minority jurors. We end up excluding a lot more women. We end up excluding a lot more people of one political persuasion than the other. We end up excluding people of certain religious persuasions. There are lots of people who get excluded from the jury, from the actual jury that sits on the case as a result of death qualification.
first.
Speaker 2 (52:01.208)
that means.
I think that the jury that sits is not actually an impartial jury that's representative of a fair cross section of our community.
Professor Scully, could you talk a little bit about the topic of holistic lawyering?
We often talk about criminal law from a defense perspective as just representing the client and just representing them in a case. And I think, again, what we were saying about being caring and compassionate comes into play here. You're not representing a case. You're representing a person. And so in the social justice advocacy concentration program, we talk about holistic lawyering.
where lawyers are looking at their client, not just in terms of like the criminal case that was brought against them, but they're asking bigger questions like, well, what made this person do what they did? What caused this person to be in this situation? And so what other problems might they have that might bring them back into the system? And so when we talk about holistic lawyering, we're talking about a criminal defense lawyer perhaps working with an immigration.
Speaker 4 (53:13.804)
lawyer because perhaps your client isn't or hasn't attained citizenship yet and you need to understand how does immigration and criminal law work together. It may be that the individual stole food and needs assistance. So can we get a social worker on the team? Right. There are many public defender offices now. The Bronx defenders being the perfect example of this where the
The way in which they teach young lawyers how to represent clients is holistic. It's looking at the whole client. It's looking at the community that the client comes from. And that lawyer doesn't just represent the client by themselves. They represent that client in conjunction with several other professionals and several other lawyers, depending upon what the circumstances are. Like perhaps the client needs housing as well, right? So what do we do to assist this client?
and actually
becoming a holistically well individual, not just a person who beats their case, but a person who will not return to the system, into the criminal legal system. so part of what we try to do is instill in our students who are interested in social justice advocacy a perspective of practicing law in a more non-traditional office or a more non-traditional way. We generally think traditionally, you represent your client,
have a case, once the case is done, you're done, right? And you just focus on that one little issue. But holistic lawyering really asks us to function as part of a professional team that helps this individual not just beat their case, but live a healthy, holistic life as well.
Speaker 2 (55:04.992)
It's not easy for criminal defense attorneys and prosecutors today. Prosecutors are dealing with things they've never dealt with before, where they may be asked by a supervisor to do something that is problematic, unethical, and they have to make decisions that are decisions that will stay with them for life. So I think one of our roles is
professors is to assist them in giving them the education so that they can make these decisions and recognize the importance of the rule of law. I think it's important also to realize that prosecutorial independence has been under attack recently, mostly on the state level. And that's something that we need to look at and I want students to understand.
what that means, how they deal with it, and what can be done about
Speaker 5 (56:10.375)
Could you say a little bit more about that, about how prosecutorial independence has been under attack?
Sure. There have been several prosecutors across many different jurisdictions that have been fired, that have been removed from office, because they have taken a position of either a progressive prosecutor, and I use that in quotes, or have taken a position that is against a political position that is of a higher up.
The question becomes, should prosecutors be placed in that role? Should prosecutors have any political obligation whatsoever? Many of these state prosecutors do run for political office. But on the other hand, once they get into that position, politics should be left aside. The ethics rules are pretty clear that you should not be making decisions based upon politics.
And so I think one of the things we try very hard to teach is what is decision making? How do you make these decisions? What do you do when you get placed in a situation that is a difficult situation that you have to make a decision?
And we've seen several prosecutors leave the prosecutor's office because they felt that they were in untenable positions, that the higher-ups were making decisions that were in some way compromising their professional integrity. And so making sure that our students understand the difficult ethical and moral dilemmas that they may be facing is also part of our journey and part of our mission.
Speaker 4 (58:00.3)
in making sure that our students are well prepared to practice criminal law.
Well, everyone, thank you all so much for being here today. This has been Real Cases. Thank you for listening. Check back for more episodes about an array of legal topics presented by the Stetson University College of Law. Learn more at stetson.edu.