Professional-responsibility final exam question …

What should Eric Holder do about the Don Siegelman case? Confess error and dismiss in the interests of justice, or wait for the Eleventh Circuit to decide?

… coming soon to a law school near you.


Eric has been appointed chief prosecutor of the State of Ames by a newly-elected governor. Eric and the governor are both Whigs; the previous governor and chief prosecutor were both from the rival Know-Nothing party.

During the Know-Nothing administration, a subordinate of the previous chief prosecutor secured the conviction of Donald, a Whig, for actions allegedly taken while Donald was mayor of the City of Mahagonny in south central Ames. Donald was convicted, and the Know-Knothing judge who heard the case ordered him imprisoned pending appeal, without even the usual time to put his affairs in order. The Know-Nothing administration assigned Donald to a maximum security prison and kept him in solitary confinement, highly unusual steps in dealing with a first-time non-violent non-drug non-organized-crime offender.

Substantial evidence has emerged to indicate that the prosecution was politically motivated, and in the view of many the theory underlying the prosecution was legally unsound. Know-Nothing officials, at the behest of the former Know-Nothing governor, refused to testify as to their knowledge of events related to the prosecution. The conviction in a similar case brought against a Whig official of the city of Winsocki under the Know-Nothing regime was vacated by the Eighth Circus appeals court without the judges leaving the bench.

In Donald’s case, an all-Know-Nothing panel of the Eleventh Circus, reversing the Know-Nothing trial judge, ordered Donald freed on bail pending appeal even before hearing oral arguments, finding that the “appeal raises substantial questions of law or fact likely to result in reversal.” That case has now been argued and is under consideration.

What are Eric’s responsibilities in the case? Should he order his own investigation into the circumstances surrounding the prosecution? If he does so, and judges that Donald is innocent, should he instruct his appellate attorneys to confess error and ask that the case be dismissed in the interests of justice?

Note the complexities here: Donald is personally better off having his conviction vacated by a court rather than as the result of an administrative determination by a Whig. And such a judicial action, which a confession of error would foreclose, is very much in the interests of the Whig Party in its efforts to uncover Know-Nothing abuses of power. So Eric has strong reasons, as well as a ready-made excuse, for letting justice take its course.

On the other hand, a prosecutor violates his professional obligations when he continues to press a case against a defendant he believes to be not guilty, and the credibility of the government in sustaining criminal convictions on appeal is damaged each time the courts find prosecutorial misconduct, such as is alleged in this case, and the government continues to defend that misconduct.


I think this might indeed make an interesting exam question, but I’d really like to hear from the experts among our readers as to what they think Eric actually ought to do in Donald’s case.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: