Can DA’s Flip Coins? The Ethics of Harvey Dent

Harvey Dent. The District Attorney who will one day be the villain Two-Face. This lawyer and future super-villain is a case study of prosecutorial responsibilities and attorney ethics on Gotham.

Coin-CourthouseHere are the relevant facts: Jim Gordon took Selina Kyle into protective custody as a witness in the Wayne murder. Gordon attempted to keep Kyle off the grid and away from dirty cops, who would leak her whereabouts, thus sequestered her in “stately” Wayne Manor.

Jim Gordon met Harvey Dent outside the courthouse where Dent elected not to prosecute a minor based on a coin toss and a promise to stay out of trouble. During the closed-door meeting, Dent shared his theory on a possible suspect in the Wayne murder, an extremely wealthy (and corrupt) businessman named Dick Lovecraft with an army of lawyers.

Dent’s plan was to leak there was a witness linking Lovecraft to the “secret witness” with no evidence. No charges were to be filed and no names were to be made public, but using the threat of a witness to force confessions or shake out the real party involved in the Wayne murder.

Duties of a Prosecutor

In New York state, since Gotham City looks a lot like New York City in a pre-Rudy Giuliani nightmare, a prosecutor “shall not institute, cause to be instituted or maintain a criminal charge” when they know there is no probable cause to support a charge against someone. NY CLS Jud Appx R 3.8.

The ABA Model Rules of Professional Conduct Rule 3.6 also provide limitations on what lawyers can say to the press (provided the state incorporated the model rules). Lawyers shall NOT “make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” ABA Model Rules of Professional Conduct Rule 3.6(a).

Lawyers can disclose to the press information that is public record, or the matter is in progress, plus information such as whether the accused was arrested, the time of arrest, investigating officers, and length of the investigation. ABA Model Rules of Professional Conduct Rule 3.6(b).

District Attorneys also have “prosecutorial discretion” in “determining when and in what manner to prosecute a suspected offender” People v. Harper, 186 Misc. 2d 750, 755 (N.Y. City Ct.2000), citing People v Di Falco, 44 NY2d 482, 486. Moreover, “almost invariably it is the prosecutor who decides whether a case is to be pressed or dropped and what the nature of the specific offense or offenses to be lodged against a defendant is to be” Harper, at *755, citing People v Zimmer, 51 NY2d 390, 394; see also, Matter of Bytner v Greenberg, 214 AD2d 931).

Did Harvey Dent Violate His Duties as a Prosecutor?

Some lawyers will have to flip a coin on whether Dent violated his duty as a prosecutor. Others see the issues with moral clarity.

It was within Dent’s prosecutorial discretion to not press charges against the youth outside the courthouse. While the Mayor did bring back the 19th century practice of arresting children for being orphans or vagrants to be interned in “orphan asylum,” there is nothing that said such prosecutions were required to put children in protective custody. (See People ex rel. Horton v Fuller, 41 AD 404, 404 [2nd Dept 1899] and People ex rel. Van Heck v. New York Catholic Protectory, 101 N.Y. 195, 200(N.Y.1886)).

Harvey Dent’s coin toss was merely an act to encourage the youth to go back on the straight and narrow path. Moreover, given the fact the coin had two heads, the odds were in Dent’s favor the youth would act as Dent predicted. Non-conventional, but it does not seem to violate Dent’s duties as a prosecutor.

The same cannot be said for threatening Dick Lovecraft with criminal prosecution. Harvey Dent did not have any probable cause to bring Lovecraft in for questioning, let alone attempting to get him to sign a confession. Furthermore, Dent snapping in rage would have been assault, followed by battery when Dent placed his hands on Lovecraft.

Dent would be pushing his luck with publishing anything beyond there was a witness in the Wayne murder and the investigation was ongoing. Other than that, Dent’s ability to use the press would be limited, without committing defamation on those without any probable cause to suspect them of a crime.

Hit Me With a Bagel and You Can Kiss Me

There are 12-year-old males who would practice throwing bagels (and other Danishes) at targets for a kiss from a girl. While Selina Kyle made an oral contractual offer requiring the condition precedent of Bruce Wayne successfully throwing a bagel at her for a kiss, such a performance contract would be unenforceable and against public policy. Yes, consideration for a contract can be a bagel just as much as it could be a peppercorn, but we just cannot have food fights for kisses that go to court seeking specific performance as a remedy for assault with a bagel.

Sorry guys.

Now, anyone want to place bets whether Sean Pertwee will throw someone over his shoulder like his father used to on Doctor Who?

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Josh Gilliland

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, the ABA Web 100 for Best Legal Blog and Podcast categories, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.