Issue 16.2

Spring 2019


The Politicization of Prosecutors: A Tribute to the Work of Bennett Gershman

by Laurie L. Levenson

He warned us. For decades, Professor Bennett Gershman has sent a strong and consistent message that politics and prosecutors do not mix. And, of course, he was right. Recent events have demonstrated the acute danger of prosecutors becoming immersed in the political world.
This article will focus on just three examples. There are many more that could be selected. In fact, the Trump administration’s call to a recused Attorney General to shut down the investigation of...


Disciplinary Regulation of Prosecutorial Discretion: What Would a Rule Look Like?

by Samuel J. Levine

This Essay is the third part of a larger project exploring the possibility that disciplinary review of prosecutors’ charging decisions—through both expansive judicial interpretation of current ethics rules and judicial enactment and enforcement of more extensive ethics rules—might serve as a viable and effective mechanism for meaningful regulation and supervision of prosecutorial discretion. The first part of this project, developed in an article co-authored with...


Undue Influence: A Prosecutor’s Role in Parole Proceedings

by R. Michael Cassidy

I am delighted to contribute to this symposium honoring the work of Bennett L. Gershman. Professor Gershman and I have toiled together in the field of prosecutorial ethics for several decades. I have greatly admired his work, and his scholarship over the past years has inspired and informed mine. While we occasionally have disagreed on implementation strategies, we share a core commitment to the prosecutor’s mission as a minister of justice to seek the truth and not...


The Challenge of Convincing Ethical Prosecutors That Their Profession Has a Brady Problem

by Adam M. Gershowitz

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense—so called Brady violations. Despite all of this documentation, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors—ethical lawyers who themselves have not been accused of misconduct—believe that the scope of the Brady problem is exaggerated.


Prosecutorial Disclosure and Negotiated Guilty Pleas

by Kevin C. McMunigal

The scope and enforcement of prosecutorial disclosure obligations have generated great controversy in the more than five decades since Justice Douglas wrote his seminal opinion in Brady vs. Maryland. These topics continue to generate controversy. Bennett Gershman is a prominent and articulate voice in a chorus of critics who complain both that the scope of required disclosure is unduly narrow and that there is inadequate adherence to and enforcement of the Brady...


Coaxing, Coaching and Coercing: Witness Preparation by Prosecutors Revisited

by Daniel S. Medwed

Witness preparation is a staple of good trial practice for prosecutors. A single ineffective or unprepared witness might imperil an otherwise airtight case. Interviewing witnesses before trial allows prosecutors to gauge the strength and factual basis of their case, determine the sequence of the presentation, and alert witnesses about evidentiary rules to prevent them from revealing prejudicial information. The failure to prepare witnesses could even violate...


Bennett Gershman on the Prosecutor’s Role as “Minister of Justice”

by Ellen S. Podgor

Courts and professional associations have described prosecutors as “ministers of justice.” That is what distinguishes prosecutors from other lawyers. For criminal justice to be administered fairly, it is essential for prosecutors to act in conformity with this role. But one might fairly ask, what does it mean to say that prosecutors are “ministers of justice”? Some scholars challenge the utility of the concept or criticize it as being vague
to the point of it being...


The Prosecutors I Like: A Very Short Essay

by Abbe Smith

Generally speaking, I don’t like prosecutors. The longer I practice law—more than three decades now—the more it is so. Maybe this is inevitable for a career indigent defense lawyer; a certain bitterness might come with the territory. Prosecutors have enormous power and the resources to back it up, while indigent defendants lack the most basic resources and have only beleaguered public defenders to back them up.2 It’s hardly a fair fight: prosecutors at the helm...


Knowledge and Belief as Criminal Law Mental States

by Kevin Cole

Given how often they appear in criminal statutes, the mental states of “knowledge” and “belief” are surprisingly undertheorized. Scholars have debated whether knowledge is invariably a more culpable mental state than recklessness.1 The drafters of the Model Penal Code (“MPC”) agonized over whether knowing facilitation of another’s crime should suffice for accomplice liability before ultimately requiring a true purpose. Scholars have debated whether willful blindness...


Speaking of Prosecutors: Deceptively Descriptive on the Surface with a Heavy Normative Undertow

by Carrie Leonetti

The American mass incarceration crisis and the collateral consequences that flow from it are long standing and well documented, but the United States has only lately begun grappling with its international leadership in political penal punitiveness. Going to back to William Stuntz’s groundbreaking discussion of the Pathological Politics of Criminal Law in the United States, both the scholarly literature and the popular dialogue surrounding mass incarceration have...


Prior volumes of the Ohio State Criminal Law Journal can be viewed here.