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3 Geo. J. Legal Ethics 657 (1989-1990)
Prosecutorial Misconduct: Alive and Well, and Living in Indiana

handle is hein.journals/geojlege3 and id is 667 raw text is: ARTICLES Prosecutorial Misconduct: Alive and Well, and Living in Indiana? ELLEN S. PODGOR* JEFFREY S. WEINER** I. INTRODUCTION Criminal defense attorneys have traditionally borne the brunt of public criticism for their representation of alleged criminals. Unlike the prosecu- tor, the defense attorney has been rebuked not only by the public, but often by their own clients who file incompetent counsel claims.' With the advent of federal undercover operations in the criminal justice system, the scrutiny of certain judges and defense attorneys has been extended to the level of criminal investigations.2 These actions, ostensibly aimed at patroling the eth- ics of the judiciary and criminal defense bar, included searches of law of- fices,3 subpoenas directed to attorneys4 in their capacity as attorneys, and * Associate Professor of Law, St. Thomas University School of Law. B.S., 1973 Syracuse Uni- versity; J.D., 1976, Indiana University School of Law at Indianapolis; M.B.A., 1987, University of Chicago; L.L.M., 1989, Temple University School of Law. The author wishes to thank research assistants Karen Harkness and Sharon Brown. ** Partner, Weiner, Robbins, Tunkey & Ross, P.A., Miami, Florida. J.D., 1974, Illinois Insti- tute of Technology, Chicago-Kent College of Law; past president of the Florida Criminal Defense Lawyers; presently First Vice-President of the National Association of Criminal Defense Lawyers. 1. See generally Strazzella, Ineffective Assistance of Counsel Claims: New Uses, New Problems, 19 ARIz. L. REV. 443 (1977) (describing the rise and the uses of ineffective assistance of counsel claims over the last thirty years). 2. See J. LAWLESS, PROSECUTORIAL MISCONDUCT 628-29 (1985); Tamarkin, The Judge Who Wore A Wire, 70 A.B.A. J. 76 (1984); E. Podgor, Criminal Misconduct: Ethical Rule Usage Leads to Regulation of the Legal Profession, 61 TEMPLE L. REV. 1323,1349 (1988). Mallowe, Still Crooked After All These Years, Philadelphia Magazine, Dec. 1987, at 151. See also M. Hirsch, Confidential Informants: When Crime Pays, 39 MIAMI L. REV. 131 (1984). See generally HOUSE COMM. ON THE JUDICIARY, FBI UNDERCOVER OPERATIONS-REPORT OF THE SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS, H.R. Doc. No. 267, 98th Cong., 2d Sess. 17-18 (1984) (report which describes the results of a four year investigation into the FBI's conduct in undercover investigations). See J. TUOHY & R. WARDEN, GREYLORD: JUSTICE CHICAGO STYLE (1989) (Greylord was the FBI undercover operation into the Chicago Court system). 3. See Mogill, Avoiding The Big Chill': Protecting the Attorney Client Relationship From the Effects of Zurcher, 21 CONN. L. REV. 293 (1989). 4. To curtail the prosecutorial practice of subpoenaing lawyers to testify in grand jury proceed- ings about clients, the ABA added a new section to Rule 3.8 of the Model Rules of Professional Conduct, Rule 3.8(f), plus restrictions on subpoenas of defense attorneys. See 58 LW 2476 (Febru- ary 20, 1990).

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