kanBARoo Court. 28th Installment. The Ethics and Pragmatics of Provoking the Prosecutrix
The entrapment defense provides by analogy the appropriate legal standard in assessing the ethics of provocation, despite the surface absurdity of the police-agency/accused role reversal. If my provocation of the prosecutrix were unethical, it would be for the same reasons that entrapping police conduct is improper: gaining advantage from my opponent’s improper conduct that I caused. No case law in any jurisdiction considers provocative litigation tactics as such, an omission ordinarily implying only that no lawyer would consider zealous but lawful conduct designed to unhinge an opponent anything but proper. The unprecedented nature of such an allegation would ordinarily suffice to rebut it, except in a State Bar case where an aggravation is assigned. Aggravations include numerous supposed ethical infractions never discussed in those terms.
The U.S. Supreme Court continues to be divided on procedural aspects of the entrapment defense, with the California courts carrying over aspects of both the majority and minority opinions, but on the matter of entrapment's definition, the majority, minority, and California positions do not substantially differ. Under federal law, the "controlling question [is] whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials." (Sorrells v. United States (1932) 287 U.S. 435, 451.) The Supreme Court minority defined entrapment similarly as “the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.” (Id. at p. 454 (dis. opn.)) From these definitions follows the test: "the likelihood that [police conduct] would entrap only those ready and willing to commit crime." (Sherman v. United States (1958) 356 U.S. 369, 384 (dis. opn.))
Three facts, their relevance grounded in the definitions and test, speak dispositively against my committing any wrongdoing when I deliberately and successfully provoked the prosecutrix into a state of vicious but self-defeating respondent-directed hatred:
- My conduct involved no inherent wrongdoing;
- The concept governing prosecutrix’s misconduct did not originate in my imagination; and
- The provocation would not have elicited the wrongful conduct from the prosecutrix, were she not predisposed to obstructing justice.
Fact 2. Had I suggested the wrongdoing, or tried to convince the prosecutrix she could get away with it, my acts would be ethically tainted, even though violating no Rule of Professional Conduct. How can I complain of the prosecutrix's violation of due process, if her plot originated with me? Entrapment involves planting an idea in someone’s mind, not instigating an emotional reaction. Knowing that the prosecutrix would commit some rash act of oppression, I still had no idea of its nature, which indeed surprised me, because it required the clerk’s collusion.
Fact 3. Inquiry into whether the allegedly entrapping conduct would cause a reasonable person to commit the misdeed reaches the heart of the matter. When the prosecutrix tampered with the court's records, did my provocation make conduct latent within the prosecutrix's soul more probable, or did it place her in state unlike any she might otherwise suffer? Situations that anger persons with prosecutory power are legion, giving prosecutors' faces their perpetual Giuliani-like angry snarl and demonstrating that a deputy trial counsel who rushes to crime in rage will be often enraged and commonly rushed.
Provoking the prosecutrix was a sound litigation tactic, designed to elicit conduct that raises valid questions about the objectivity and legality of State Bar investigations.
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