Let’s All Say This Together: Attorneys May Not Pretend to Be Someone Else on Facebook in an Effort to Obtain Evidence
An assistant Cuyahoga county prosecutor, I’ll call him AB so I don’t mess up his Google results, allegedly decided it would be a good idea to try to break a defendant’s alibi by chatting up the witnesses on Facebook. Unfortunately, not only did he fail to reveal who he was, he pretended to be the nonexistent girlfriend of the defendant and the mother of the defendant’s child. Next he followed up with the witnesses offline, failing to reveal that he had spoken with them online.
“Ruse to Obtain the Truth”?
AB believes that he was simply engaging in the appropriate level of behavior in his efforts. He is quoted as saying, “Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth…I think the public is better off for what I did.”
It is completely true that a certain amount of lying is allowed when trying to convince a defendant to give up the goods to the police. But it is the police who engage in this kind of deception and generally not prosecutors. Especially when it comes to actually gathering evidence. One of the reasons for this is that police can testify as witnesses in a case. Prosecutors cannot testify as witnesses because they are acting as attorneys. Attorneys cannot be witnesses in their own cases. Since AB placed himself in a position to be a witness in the trial he forced the county prosecutor to withdraw from the case. The trial, which incidentally involves a murder, is now with the Ohio Attorney General.
There are also numerous ethical guidance opinions and several disciplinary cases which make it clear that attorneys may not lie about who they are when speaking to witnesses online. There is no reason to believe that such rules do not exist for prosecutors. Quite the contrary.
Damage to the Case?
Defense attorneys will, rightfully, use any piece of information they can to attack evidence against their clients. Here, we have defense attorneys who will be able to point to to the alleged behavior of a prosecutor who wanted so badly to convict their client that he went on Facebook and lied to persuade witnesses to change their testimony. Those same witnesses even claimed they were being harassed on Facebook. AB claims he did what he did to make certain a murderer doesn’t walk free. The problem is, as a result of his alleged actions, he has most likely increased the chance of that very thing occurring.
Doubts in the Integrity of the Legal System
Not only does AB’s alleged behavior harm one case, it harms confidence of the public in the propriety of our legal system. Many people already have a lot of questions about the honesty and integrity of our legal system; AB did nothing to help those views, as can easily be seen by reading the comments on the articles about this situation. What it comes down to is this. There are lines, and by allegedly pretending to be someone else and engaging in such extreme deception, in my mind, AB crossed those lines.
The County Prosecutor, Timothy J. McGinty, is furious with his now ex-employee’s behavior. He stated, “This office does not condone and will not tolerate such unethical behavior…He disgraced this office and everyone who works here.” The County Prosecutor further stated, “By creating false evidence, lying to witnesses as well as another prosecutor, [AB] has damaged the prosecution’s chances in a murder case where a totally innocent man was killed at his work.” McGinty also stated that he gave AB a chance to explain himself. In his explanation, AB acknowledged his actions, but completely failed to grasp that he overstepped all reasonable conduct for a prosecutor. McGinty also stated that AB was inconsistent when questioned.
According to the articles, AB feels he has been unfairly treated. He explained that he simply wanted to help the mother of the victim and feels that McGinty and the prosecutor’s office have overreacted. The reality here is that there are a lot of victims, and each one of them deserve justice. But for the justice system to work there are ethical boundaries which prosecutors must not cross. In my mind, AB crossed them. Hopefully he will learn from what he has done and be more cautious in his use of social media in the future.