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Prosecuting attorneys play two extremely important social roles. On one hand, they are law enforcement officers, working closely with the police in the investigation, apprehension and interrogation of criminals. On the other hand, they are legal professionals, working in a system dependent upon due process and fair procedures. There is usually no dissonance between the two sets of expectations, but sometimes the conflict becomes acute. Public safety requires law enforcement to be relentless and resourceful in pursuit of criminals, but liberty and democracy require that the criminal courts operate fairly and honestly. Prosecutors have to function at the intersection of the two systems, striving to put felons in jail while protecting their rights. It isn’t always easy. Just ask Mark Pautler, a 26-year veteran of the Jefferson County, Colo., prosecutor’s office. In the summer of 1998 he used brazen trickery to help convince an admitted ax murderer to surrender to authorities. But what was admirable conduct for a police officer turned out to be questionable conduct for a lawyer, leading to serious trouble for Pautler and a perplexing ethical dilemma for the state of Colorado. On July 8, 1998, a man named William “Cody” Neal spoke on a cell phone to a sheriff’s department investigator, confessing that he had tortured and murdered three women, and had raped a fourth. After several hours of negotiations, Neal said that he would turn himself in, but only if he could speak first to a defense attorney or a public defender. Rather than locate a defense lawyer, the sheriff’s department contacted Pautler, the chief deputy district attorney, who agreed to impersonate a public defender. The ruse worked. Calling himself “Mark Palmer,” Pautler promised Neal access to a telephone and cigarettes, and succeeded in persuading him to surrender. Neal has since been convicted and sentenced to death. FROWN OF DISAPPROVAL Meanwhile, the Colorado attorney regulation counsel charged Pautler with a violation of lawyer disciplinary rules, which prohibit conduct involving “dishonesty, fraud, deceit, or misrepresentation.” A three-judge panel subsequently ruled (with one dissent) that Pautler had indeed committed professional misconduct, placing him on disciplinary probation for a year and requiring him to take a 20-hour course in legal ethics. If he fails to meet the conditions of probation, his license will be suspended for three months. Pautler has appealed to the Colorado Supreme Court. The prosecutor and his supporters still insist that he did nothing wrong. In fact, Pautler says he would do it all again. “I am quite comfortable with what I did that night. I did [it] to save lives and take a killer off the street,” he says. Jefferson County law enforcement officers are united in their praise of Pautler, saying that his actions “quite possibly averted a massive manhunt that may have driven Neal to flee, harm other victims, or take hostages.” But many attorneys take a different view, pointing out that the prosecutor, by posing as a public defender, undermined the very basis of the attorney-client relationship. “The ends justify the means only if the legal system is a living fraud,” said one defense lawyer. Another decried “the notion that if the crime is bad enough, government lawyers are entitled to lie.” So was Mark Pautler right or wrong when he lied to Cody Neal? The answer is that he was wrong … but not wrong enough to face formal punishment. The judicial system absolutely depends upon lawyers telling the truth. We cannot have reliable determinations of guilt and innocence unless attorneys are bound to refrain from “deceit and misrepresentation.” That principle cannot be limited only to the courtroom. It must apply to negotiation, investigation and everything else leading up to trial, or else the process itself may be hopelessly corrupted. Thus, it is always wrong for prosecutors to lie to defendants or other witnesses. But Mark Pautler’s lie was told in a unique circumstance. It was not done in the course of the formal legal process, but rather in an attempt to apprehend a dangerous criminal. The law often recognizes that exceptional circumstances may call for exceptional measures. Police officers in “hot pursuit” may be excused from obtaining search warrants. And every state recognizes the so-called “necessity defense,” which excuses otherwise criminal conduct if undertaken to prevent a greater harm. When Cody Neal bragged about killing three women, he placed himself outside the law. There was no categorical imperative that required law officers to be honest with him before he was safely in custody. It was only at his arrest, when Neal was transformed from a fugitive to a defendant, that his right to due process came into play. A FINE LINE The distinction is a fine but important one. Lying to obtain a conviction must be absolutely prohibited. Lying to obtain an arrest — well, that has to be judged case by case. In this instance, Mark Pautler made a decision under enormous pressure, temporarily placing public safety ahead of truthfulness. Pautler’s own counsel put it well, though incompletely, when he explained, “We’re not advocating a system that allows lawyers to engage in deceit and misrepresentation. What we’re saying is, that there are some times when engaging in deceit is justified when loss of life and limb are at stake.” He should not have stopped there. He should have added that simply gathering evidence or extracting a confession can never be one of the situations that justifies lying. To be viable, the “Pautler principle” must draw an unambiguous line between the functions of apprehending criminals and prosecuting them. As a former criminal defense lawyer and a lifelong civil libertarian, I believe that Mark Pautler made the right choice. If he was wrong, he was wrong for a good reason. Let’s call it civil disobedience and hope that he wins his appeal. Steven Lubet, professor of law at Northwestern University, is the author of “Nothing But the Truth: Why Trial Lawyers Don’t, Can’t, and Shouldn’t Have to Tell the Whole Truth” (NYU Press 2001).

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