Is That Legal?

Interesting. I'd have to say that something smells really bad about that. If he's merely speaking his personal opinion, one has to wonder if others would be allowed by the judge to offer "personal opinions" as well. If not, it doesn't appear to me that the prosecutor was acting in a personal role while doing so.

The prosecutor is wrong in either hypothetical. Deliberately ignoring the direction of an office in which you're essentially acting as a proxy for an elected official is fundamentally different from expressing a personal opinion. It's similar to the situation where pharmacists refuse to dispense prescibed drugs because they believe their use is immoral. Well, it's actually somewhat worse. It's more like a pharmacist lecturing the customer and then dispensing a placebo while claiming that it was the drug prescribed. (And the defendent needs a better lawyer if his isn't smart enough to contact the DA office immediately when a prosecutor admits that he's going against the office's policy and the difference hurts his client.)
Now, spring the surprise that I'm sure you're just waiting to throw at us.

An attorney's first loyalty must be to his client--in this case, the people, which is not the same as his boss. His responsibility to an organizational hierarchy must be secondary. If the prosecutor believed a wholehearted argument in favor of the motion to dismiss was not in the interests of the people, he cannot make such an argument.

On the other hand, a prosecutor is not only a lawyer, but a government officer. To disobey the instructions of a duly appointed superior is to usurp the power--legitimated by our democratic processes--of government, supplanting it with his own will. So the prosecutor cannot simply disobey and fail to bring the motion to dismiss.

But neither may he withdraw, at least withdraw without taking steps to the extent reasonably practicable to protect his client's interests. In this situation, it's pretty clear that if he withdraws his supervisor will simply file the motion--and back it with zealous support--that the prosecutor finds injurious to his client's interests.

So he's faced with a quandry. He thinks the motion is againts his client's interest but he can neither refuse to file it nor withdraw. Given the circumstances, his solution seems pretty close to optimal. In his role as government functionary obeys the letter, if not the spirit of his instructions (and since when do we expect bureaucrats to worry about the spirit rather than the letter of anything?) At the same time he manages to be a zealous advocate for his client.

Of course, in the real world his first call when he leaves the courthouse should be to his headhunter.

I'm a pretty strong believer in individual consciensce and the First amendment, but in the role of advocate a lawyer's "freedom" is subordinate to professional responsibility. This is true on either side of the aisle. A lawyer's only choice is to stand up or bow out: half measures are out.

I'd say that any lawyer with such a poor grasp of the First Ammendment should be sweeping floors instead of arguing cases in in court.

Hypothetical, my ass, haha. I know where you got this one.

We could simplify the hypothetical thus: Assume that the staff prosecutor, instead of going through this elaborate charade, simply disregards office policy and his supervisor's instructions and refuses to make the motion to dismiss. Does the defendant, assuming he finds out the whole story some time later, have any grounds to complain? My sense is that he does not.

I think the issue is between the prosecutor and his boss, period. If his boss feels he disobeyed instructions, then he has to suffer the consequences. And in theory, a new prosecutor could probably be assigned to the case to renew the motion, although who knows what would happen then.

I would be surprised if the prosecutor's "First Amendment rights" extend so far as to immunize him from punishment for statements made on government time, while carrying out a government role. The only reason he is in court in the first place is as an agent for the state. He can't be a government prosecutor one minute, then suddenly ask us all to engage a legal fiction where he is just an observer from the gallery, then return to being a government prosecutor. And I don't think the First Amendment grants one the right to call witnesses in one's capacity as a private citizen, either.

I don't know what basis the defendant would have for asserting a beef in this situation, that's all.

As a private citizen with First Amendment rights, you do not have a right to speak or call witnesses in an open court. The only way that this person had a right to speak to the judge & jury is as a representative of his agency. He cannot then claim 1st Amendment privilege for "private" statements and beliefs.

In both hypotheticals the staff prosecutor has behaved unprofessionally and inappropriately. It's not his call to make, and once the call is made he has to either carry it out or quit. I'm pretty sure he violated the rules of professional conduct as well by interjecting his personal feelings into the matter.

I agree with Mojo's comment above. An assistant district attorney cannot substitute her own judgment on matters of policy with that of her superior. Were this an ethical issue, the answer might be different, but here there is simply a disagreement on policy.

This prosecutor had a choice -- handle the case as directed or don't handle the case at all. But what the prosecutor actually did was inappropriate.

As for turning the hypothetical around, the analysis is exactly the same, IMHO.

Okay, lets bend the hypo a bit. Now we have a private lawyer--an associate at a big firm. The firm represents Mr. Jones, who has left general instructions with regard to the handling of his civil case prior to leaving on a three week safari (out of cell phone range). The firm's policy is to file a particular type of motion in every case it handles involving a given issue, but because of the unique circumstances of Mr. Jones' case, the associate thinks such a filing in this case isn't in Jones' interest. Nonetheless, the firm has filed the motion and our associate, notwithstanding his very clear objections, has been directed by his supervising partner to argue the motion at an upcoming hearing.

Not an ideal situation for anyone, but it's hard for me to see how the associate can zealously advocate for the motion while still remaining true to his client's interests.

In either case, the lawyer cannot directly disobey the superior. If he is the defendant's lawyer, he might ask for a continuance. If that fails, he could make a motion to withdraw and if that were granted its hard to imagine the judge not granting the client a continuance. He could however be fired for either action, the 1st Amendment doesn't protect the employee of a private firm who disobeys orders and takes actions that arguably jeopardize the firm. Although, the prosecutor has protection for speech from his superior under the 1st Amendment, but not in this case. His speech about the policy should take place in an appropriate public forum. For example, the O'Reilly show or some other right wing nut show. For that later speech he cannot be punished. But in court his speech is more than speech, it is a speech act. He is definitely acting unprofessionally, and is inexcusably insubordinate. He needs to contact a job placement service right away.