Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship 2010 Prosecutorial Agnosticism Alafair Burke Maurice A. Deane School of Law at Hofstra University Follow this and additional works at:https://scholarlycommons.law.hofstra.edu/faculty_scholarship Recommended Citation Alafair Burke,Prosecutorial Agnosticism, 8Ohio St. J. Crim. L.79 (2010) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/97 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please [email protected]. Prosecutorial Agnosticism Alafair S. Burke* I. INTRODUCTION Most legal ethicists maintain that an ethical prosecutor should pursue criminal charges against a defendant only if the prosecutor personally believes that the defendant is guilty. The assumption is that the obligation to "do justice" encompasses a duty to act as supreme juror, scrutinizing the evidence against the defendant, not merely for sufficient proof to avoid a judgment of acquittal, but for proof that persuades the prosecutor of the defendant's guilt beyond a reasonable doubt in her own mind. As supreme jurors, prosecutors act not simply as advocates of conviction in an adversarial system but as a first and ever-present protector of the innocent, capable at any moment of declining or dismissing charges based on her own conclusions as a juror. Rather than resist this description, most prosecutors embrace it, priding themselves on their nearly unrivaled power to do justice through unreviewable compassion. This Article challenges the prevailing assumption and argues, both descriptively and normatively, that ethical prosecutors can be agnostic about a defendant's guilt. As a descriptive matter, ethical prosecutors routinely pursue charges when they are not convinced of the defendant's guilt beyond a reasonable doubt. For example, few question a prosecutor's ability to pursue inconsistent charges in the alternative, even though in such cases the prosecutor must necessarily doubt the defendant's legal guilt on at least one of the prosecuted charges. Similarly, prosecutors must carry doubts about the defendant's legal guilt when they seek to apply a criminal statute to a unique factual situation using a novel legal theory. This Article questions why an ethical prosecutor cannot also be agnostic about the defendant's factual guilt. As a normative matter, this Article argues that agnostic prosecutors might be better defenders of the innocent than those who pride themselves on their roles as supreme jurors. Commentators have only recently begun to explore the distorting effects of a prosecutor's personal belief in guilt on her subsequent decision making. Drawing on the cognitive science literature, this Article asks whether the protection provided to defendants by a supreme juror requirement might be * Professor of Law, Hofstra Law School. I am grateful to the Criminal Justice Section of the American Association of Law Schools for selecting this paper for presentation at its annual meeting. I am also thankful to the participants at the Northeast People of Color Conference, where an early draft of this paper was presented, for their helpful comments, and to David Harris, Susan Bandes, Deborah Denno, Andrew Taslitz, Nita Farahany, and John Darley for their work to create this symposium. 79 80 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 8:79 outweighed by the adverse affects on prosecutorial neutrality once the prosecutor's belief in guilt is formed. As an initial matter, the prosecutor's case screening for guilt may not be especially protective of the defendant. Because of confirmation bias, prosecutors "testing" a hypothesis of the defendant's guilt may be likely to search the case evidence for proof confirming that hypothesis to the detriment of exculpatory evidence. Once the prosecutor forms a personal belief in guilt, that belief becomes "sticky" as selective information processing, belief perseverance, and cognitive consistency will prevent the prosecutor from revisiting her conclusion. Tunnel vision also impairs the prosecutor's ability to identify material, exculpatory evidence to which the defense is entitled under Brady v. Maryland, as selective information processing will cause the prosecutor to overestimate the strength of her case without the evidence at issue and to underestimate the evidence's potential exculpatory value. Finally, the prosecutor's role as a first and constant case screener may lead to cascading effects on other prosecutors, judges, and jurors, who might be less scrutinizing for reasonable doubt because of an assumption that charges are pursued only against the guilty. By emphasizing the ways that personal beliefs can interfere with neutral decision making, this Article suggests that prosecutors might best serve justice, not as supreme jurors, but as vigilant agnostics. A call for vigilant agnosticism invites reflection on, and potentially a transformation of, the prosecutorial culture. With the exoneration through DNA evidence of more than 250 convicted criminal defendants,' commentators have declared the dawn of a wrongful convictions "movement"2 or perhaps even a "revolution."3 In a criminal justice system founded on the premise that "it is better that ten guilty persons escape than that one innocent suffer," exoneration cases force us to acknowledge that we do Know the Cases: Browse the Profiles, INNOCENCE PROJECT, http://www.innocenceproject.org/know/Browse-Profiles.php (last visited Sept. 15, 2010) (listing 258 exonerations since 1989); see also JIM DWYER, PETER NEUFELD & BARRY SCHECK, ACTUAL INNOCENCE: WHEN JUSTICE GOES WRONG AND How TO MAKE IT RIGHT, at xvii (2003); Jennifer Boemer, Student Article, In the Interest ofJustice: GrantingP ost-Conviction Deoxyribonucleic Acid (DNA) Testing to Inmates, 27 WM. MITCHELL L. REv. 1971, 1997-99 (2000) (discussing generally the Innocence Project). 2 Brandon L. Garrett, Judging Innocence, 108 CoLUM. L. REv. 55, 125 (2008) (labeling recent efforts to prevent wrongful convictions a "movement" that "represents one of the most significant efforts to reform our criminal procedure in decades"); Daniel S. Medwed, Anatomy of a Wrongful Conviction: Theoretical Implications and PracticalS olutions, 51 VILL. L. REv. 337, 376 (2006) (referring to a potential "New Civil Rights Movement" for the wrongfully convicted); David Feige, The Dark Side of Innocence, N.Y. TIMES, June 15, 2003, § 6 (Magazine), at 15 ("An entire innocence movement is afoot."). Mark A. Godsey & Thomas Pulley, The Innocence Revolution and Our "Evolving Standards of Decency" in Death Penalty Jurisprudence, 29 U. DAYTON L. REv. 265, 267 (2004); Lawrence C. Marshall, The Innocence Revolution and the Death Penalty, I OHIO ST. J. CRIM. L. 573, 573 (2004). 4 Coffin v. United States, 156 U.S. 432, 456 (1895) (quoting Blackstone as saying that "the law holds that it is better that ten guilty persons escape than that one innocent suffer"). 2010] PROSECUTORIAL AGNOSTICISM 8 1 convict innocent people.' As lawyers, researchers, and policy makers try to identify the factors that contribute to wrongful convictions, the discretionary decisions of prosecutors have increasingly come under fire. Many scholars have criticized a prosecutorial culture described as valuing conviction rates over truth and career advancement over justice. 6 To improve the prosecutorial culture and decrease the likelihood of wrongful convictions, commentators have looked to the prosecutor's unique ethical obligation to lawyer, not with zealous advocacy, but with an aim to do justice. Emphasizing the responsibility to do justice, scholars have called for more stringent rules, more frequent use of disciplinary proceedings against prosecutors, and increased sanctions for prosecutors who are found to have violated the rules. 8 They have also invoked the "do justice" ethical obligation to guide prosecutors' charging decisions. Whereas constitutional law requires only a showing of probable cause to justify charging a defendant, many have argued that as an ethical matter, prosecutors should be required to apply a higher bar and must be personally persuaded that the defendant is in fact guilty before filing charges. A prosecutor who operates under such an obligation would serve as an initial and ongoing supreme juror, satisfying herself as a fact finder of the defendant's guilt before subjecting the defendant to the whims of a jury. The underlying assumption is that a supreme juror requirement would prevent wrongful convictions because ethical prosecutors would be less likely to issue questionable cases at the outset and more likely to dismiss them pending trial.9 At the same time, commentators have also argued that the model prosecutor should evaluate her cases skeptically. Professor Uviller, for example, maintained that prosecutors should review their cases with "the mindset of the true skeptic, the 5 Samuel R. Gross et al., Exonerationsi n the United States 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 523 (2005); D. Michael Risinger, Innocents Convicted: An Empirically JustifiedF actual Wrongful Conviction Rate, 97 J. CRIM. L. & CRIMINOLOGY 761, 762 (2007); Richard A. Rosen, Reflections on Innocence, 2006 Wis. L. REv. 237, 237 (declaring that "we are at the beginning of an exciting new period of American criminal justice, one directly related to the acknowledgment that we convict innocent people"). 6 See Kenneth Bresler, "IN ever Lost a Trial": When ProsecutorsK eep Score of Criminal Convictions, 9 GEo. J. LEGAL ETHIcs 537, 541 (1996); Stanley Z. Fisher; In Search of the Virtuous Prosecutor:A Conceptual Framework, 15 AM. J. CRIM. L. 197, 204-15 (1988); Bennett L. Gershman, The New Prosecutors, 53 U. Prrr. L. REv. 393, 458 (1992); Daniel S. Medwed, The Zeal Deal: ProsecutorialR esistance to Post-Conviction Claims of Innocence, 84 B.U. L. REv. 125, 134-36 (2004); Fred C. Zacharias, Structuring the Ethics of ProsecutorialT rial Practice: Can Prosecutors Do Justice?,4 4 VAND. L. REv. 45, 58-59 (1991). See Berger v. United States, 295 U.S. 78, 88 (1935). See Bruce A. Green, ProsecutorialE thics as Usual, 2003 U. ILL. L. REv. 1573, 1587-88; Kenneth Rosenthal, ProsecutorM isconduct, Convictions, and Double Jeopardy: Case Studies in an Emerging Jurisprudence, 71 TEMP. L. REv. 887, 889 (1998); Fred C. Zacharias, The Professional Disciplineo fProsecutors, 79 N.C. L. REv. 721, 773-77 (2001). 9 See infra Part II. 82 OHIO STATE JOURNAL OF CRIMNAL LAW [Vol 8:79 inquisitive neutral."o Similarly, Professor Gershman has written that prosecutors "should approach the preparation of a case with a healthy skepticism."' From this perspective, the model prosecutor is one who tests the defendant's guilt the way a scientist might subject a hypothesis to the scientific method, supporting the hypothesis by continuously and rigorously attempting to disprove it. The assumption is that prosecutors can be neutral decision makers, rationally scrutinizing their cases for potentially exculpatory evidence. However, cognitive psychologists have established that human decision makers are neither rational nor neutral. Instead, their decision making is systematically and predictably distorted by cognitive biases and heuristics. Moreover, many of these cognitive shortcuts are triggered by people's personal beliefs. This Article examines the possibility that what I call a "supreme juror requirement" for prosecutors might undermine the kind of vigilantly skeptical decision making we should want to foster in prosecutors. Because a supreme juror requirement might trigger cognitive biases in the prosecutor's decision making, prosecutors who believe that they must be personally convinced of the defendant's guilt might be biased in their initial case screening, their handling of plea bargains, and their evaluation of potentially exculpatory evidence. Additionally, if jurors and judges believe that prosecutors have already prescreened their caseloads for innocence, they might defer to prosecutorial fact finding and perform their own functions less rigorously under a presumption of guilt. As a consequence, a supreme juror requirement for prosecutors may be more likely to contribute to wrongful convictions than prevent them. Part II sets forth the background of a supreme juror function for prosecutors. Although no single case or rule prohibits prosecutors from charging a defendant despite personal doubts about the defendant's guilt, most ethics scholars argue, and many practicing prosecutors agree, that the duty to do justice requires prosecutors to serve as a first and supreme juror who predetermines the defendant's guilt prior to charging. Part III demonstrates that, despite a prevailing belief in a prosecutor's supreme juror role, prosecutors routinely (and often without controversy) charge defendants even when they are not personally persuaded of the defendant's guilt. Part IV then explores the potential adverse consequences of a supreme juror requirement in light of cognitive biases that are triggered by personal beliefs. 1o H. Richard Uviller, The Neutral Prosecutor: The Obligation ofDispassioni n a Passionate Pursuit, 68 FoRDHAM L. REv. 1695, 1704 (2000). " Bennett L. Gershman, The Prosecutor'sD uty to Truth, 14 GEO. J. LEGAL ETHICS 309, 342 (2001). 2010]1 PROSECUTORIAL AGNOSTICISM 83 II. THE DUTY The prosecutor's well-known duty to seek justice, not simply to convict, sets prosecutors apart from other zealous advocates. According to the Supreme Court's oft-quoted decision in Berger v. United States, the prosecutor's responsibility [I]s not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.12 Nevertheless, there is no clear mandate either within the Constitution or ethical rules that requires prosecutors to refrain from prosecution when they carry personal doubts about the defendant's guilt. As a constitutional matter, only a showing of probable cause is required to warrant criminal charges.13 Probable cause is an objective standard separate from the prosecutor's personal beliefs about guilt and is not an especially demanding standard of evidence, requiring only a fair probability of guilt.14 The ethical rules that govern prosecutors add little to this minimal requirement. The rules that specifically govern a prosecutor's charging decisions employ the same relatively low probable cause standard as the Constitution." More expansive ethical rules 12 295 U.S. at 88; see also Donnelly v. DeChristoforo, 416 U.S. 637, 648-49 (1974) (Douglas, J., dissenting) ("The function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial."). 13 See Branzburg v. Hayes, 408 U.S. 665, 686 (1972) (observing that the grand jury has the "function of determining if there is probable cause to believe that a crime has been committed"). 14 Illinois v. Gates, 462 U.S. 213, 238 (1983) (describing probable cause as "a fair probability"); see also Maryland v. Pringle, 540 U.S. 366, 371 (2003) ("The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances."); Kenneth J. Melilli, ProsecutorialD iscretioni n an Adversary System, 1992 BYU L. REv. 669, 680-81 ("Probable cause is little more than heightened suspicion, and it is not even remotely sufficient to screen out individuals who are factually not guilty."). 15 See MODEL RULES OF PROF'L CONDUCT R. 3.8 (2009) ("The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause .... ); MODEL CODE OF PROF'L RESPONSIBILITY DR 7-103(A) (1986) ("A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause."); STANDARDS FOR CRIMINAL JUSTICE PROSECUTION FUNCTION AND DEFENSE FUNCTION 3-3.9(a) (3d ed. 1993) ("A prosecutor should not institute, or cause to be instituted, or permit the continued pendency of criminal charges when the prosecutor knows that the charges are not supported by probable cause."); see also Green, supra note 8, at 1588 (noting that Model.Rule 3.8(a) "adds nothing" to a prosecutor's charging responsibilities under law); Melanie D. Wilson, Finding a Happy and Ethical Medium Between a Prosecutor Who Believes the Defendant Didn't Do It and the Boss Who Says That He Did, 103 Nw. 84 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 8:79 that discuss the special function of prosecutors do so only obliquely and without specific examples to guide the implementation of the prosecutor's duty to do justice. For example, the comments to Rule 3.8 of the Model Rules of Professional Conduct provide that the prosecutor "has the responsibility of a minister of justice and not simply that of an advocate," including "specific obligations to see that the defendant is accorded procedural justice [and] that guilt is decided upon the basis of sufficient evidence."17 The Model Code of ProfessionalR esponsibility and ABA standards mandate that a prosecutor's duty "is to seek justice, not merely to convict."'8 Some legal ethicists maintain that prosecutors can "do justice" without personally forming an opinion about a suspect's guilt prior to pursuing charges. Richard Uviller is most commonly cited for this view: "[W]hen the issue stands in equipoise in his own mind, when he is honestly unable to judge where the truth of the matter lies, I see no flaw in the conduct of the prosecutor who fairly lays the matter before the judge or jury." 9 But Uviller's view is an outlier in both the scholarly and professional commentary. Despite the absence of a clear requirement that prosecutors personally believe in a defendant's guilt, most leading legal ethicists argue that a prosecutorial duty to prejudge the defendant's guilt arises from a combination of the applicable rules and the unique role of the prosecutor in our adversary system. They maintain that the duty to "do justice" encompasses a duty to act as supreme juror, scrutinizing the evidence against the defendant, not merely for sufficient proof to avoid a judgment of acquittal, but for proof that persuades the prosecutor of the defendant's guilt beyond a reasonable doubt in her own mind. Bennett Gershman, for example, maintains that "a responsible prosecutor should be morally certain that the defendant is guilty and that criminal punishment is appropriate."20 Monroe Freedman and Abbe Smith U. L. REv. COLLOQUY 65, 68 (2008), http://www.law.northwestern.edulawreview/colloquy/2008/30/ (discussing ethical rules that apply only if the prosecuting attorney knows that probable cause is lacking). 16 See Peter A. Joy & Kevin C. McMunigal, Are a Prosecutor'sR esponsibilities "Special"?, 20 CRIM. JUST., Spring 2005, at 58, 58; Myrna S. Raeder, See No Evil: Wrongful Convictions and the Prosecutorial Ethics of Offering Testimony by Jailhouse Informants and Dishonest Experts, 76 FORDHAM L. REV. 1413,1429 (2007). "7 MODEL RULES OF PROF'L CONDUCT R. 3.8 cmt. 1 (2009). 18 MODEL CODE OF PROF'L RESPONSIBILITY EC 7-13 (1986); STANDARDS FOR CRIMINAL JUSTICE PROSECUTION FUNCTION AND DEFENSE FUNCTION 3-1.2(c) (3d ed. 1993). 19 H. Richard Uviller, The Virtuous Prosecutori n Quest of an Ethical Standard: Guidance from the ABA, 71 MICH. L. REV. 1145, 1159 (1973); see also Fisher, supra note 6, at 230 n.144 ("The prevailing view, at least in the world of practice, surely permits prosecutors to [charge defendants when not personally convinced of their guilt]."); Zacharias, supra note 6, at 94 ("[P]rosecutors need not act as judges of their witness's testimony unless they are sure the witness is falsifying facts ... 20 Bennett L. Gershman, A Moral Standardf or the Prosecutor's Exercise of the Charging Discretion, 20 FoRDHAM URB. L.J. 513, 524 (1993); see also Gershman, supra note 11, at 337-38 2010] PROSECUTORIAL AGNOSTICISM 85 assert that "conscientious prosecutors do not put the destructive engine of the criminal process into motion unless they are satisfied beyond a reasonable doubt that the accused is guilty."21 Bruce Green concludes that a prosecutor's role as "'minister of justice' ...is generally thought to imply a 'gate-keeping' function."22 Kenneth Melilli reasons that prosecutors fail to "serve the interests of society by pursuing cases where the prosecutors themselves have reasonable doubts as to the factual guilt of the defendants."23 Even Professor Uviller's view of the permissibility of prosecutorial agnosticism has its limits. More recently, he explained, "[t]he prosecutor should be assured to a fairly high degree of certainty that he has the right person."24 Rather than resist their role as supreme jurors, most prosecutors embrace it, priding themselves on their nearly unrivaled power to do justice through unreviewable compassion. As supreme jurors, prosecutors act not simply as advocates of conviction in an adversarial system but as a first and ever-present protector of the innocent, capable at any moment of declining or dismissing charges based on her own conclusions.25 Like Professor Gershman, I can attest that when I was a prosecutor, I was told, and "never questioned," that my colleagues and I should pursue a case only when personally convinced of the defendant's guilt.26 This was also Professor John Kaplan's experience as an Assistant U.S. Attorney: "The great majority, if not all, of the assistants felt that it was morally wrong to prosecute a man unless one was personally convinced of his guilt."27 An early study of prosecutorial attitudes reported that many prosecutors (discussing a prosecutor's "duty to prejudge truth" and be "personally convinced of the defendant's guilt"). 21 MONROE H. FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYERS' ETHIcs 312 (3d ed. 2004). 22 Green, supra note 8, at 1588 (noting, however, "ample room for debate" about how certain a prosecutor's assessment of the defendant's guilt must be to warrant prosecution); see also Bruce A. Green, Why Should Prosecutors "Seek Justice"?, 26 FORDHAM URB. L.J. 607, 612-18 (1999). 23 Melilli, supra note 14, at 700. 24 Uviller, supra note 10, at 1703. 25 Indeed, because prosecutors have all but unreviewable power not to charge a suspect, even when sufficient evidence of guilt exists, Austin Sarat and Conor Clarke have compared the prosecutorial power not to prosecute to a sovereign power to exempt individuals from the valid reach of criminal law. Austin Sarat & Conor Clarke, Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits ofLaw, 33 LAw & Soc. INQUIRY 387, 390 (2008). 26 Professor Gershman recollects, Years ago, when I became a prosecutor, I was trained to believe that you never put a defendant to trial unless you were personally convinced of his guilt. This was, as I recall, the accepted ethos in our office and, I assumed, in prosecutors' offices generally. I never questioned that precept. Gershman, supra note 11, at 309 (footnote omitted). 27 John Kaplan, The ProsecutorialD iscretion-A Comment, 60 Nw. U. L. REv. 174, 178 (1965). 86 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 8:79 believed that "once an accused reaches the trial stage, his guilt has been determined by the screening processes of the police and prosecutor."28 More recently, Professor Mosteller deemed subjective prosecutorial determinations of guilt at least an "aspirational duty."29 In sum, whether prosecutors are legally, ethically, or morally obligated first to make a personal determination of the defendant's guilt may not be entirely clear, but substantial anecdotal evidence suggests that prosecutors at least widely believe they serve as first jurors, whether legally obligated or not. III. THE UNCERTAIN PROSECUTOR While prosecutors widely believe that they serve a supreme juror function and should charge only those defendants whom they subjectively believe to be guilty, even ethical prosecutors routinely pursue cases despite personal doubts about the defendant's guilt. Consider, for example, the permissible prosecutorial practice of charging lesser-included offenses. In an assault case in which the defendant struck the victim's head against a wall, the prosecutor might charge the defendant with two levels of assault: a more serious charge on the theory that the wall, as used, constituted a "weapon," and also a lesser-included offense that does not require use of a weapon.30 If the prosecutor is firmly convinced that the wall constituted a weapon, the charging decision would not appear to conflict with a prosecutor's supreme juror role. A defendant who is guilty of a more serious offense is, by definition, guilty of the lesser-included offense.31 However, suppose the prosecutor herself is uncertain whether the wall rose to the level of a "weapon." Because charging decisions require only probable cause, she could, without constitutional impediment, file both the felony and misdemeanor assault charges, leaving it to the jury to determine which offense was appropriate. Indeed, even if the prosecutor does not believe she can prove the higher charge to a jury beyond a 28 George T. Felkenes, The Prosecutor:A Look at Reality, 7 Sw. U. L. REv. 98, 112 (1975); see also Whitney North Seymour, Jr., Why Prosecutors Act Like Prosecutors, 11 REC. Ass'N B. Crry N.Y. 302, 312-13 (1956) (noting that the charging "decision is reached only after we have satisfied ourselves of the defendant's actual guilt"). 29 Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A FundamentalF ailure to "Do Justice," 76 FORDHAM L. REV. 1337, 1369 (2007). 30 See, e.g., MODEL PENAL CODE § 211.1 (1985) (distinguishing between simple and aggravated assault in part based on the defendant's use of a deadly weapon). Courts have held that walls and floors can constitute the required "weapon" for felony or aggravated assault charges depending on the circumstances of their use. See State v. Montano, 973 P.2d 861, 862 (N.M. Ct. App. 1998) (holding that a brick wall is within the definition of a "deadly weapon"); State v. Reed, 790 P.2d 551, 551 (Or. Ct. App. 1990) (holding that a concrete sidewalk can be a "dangerous weapon"). 31 See Schmuck v. United States, 489 U.S. 705, 716 (1989) (applying the "elements" test to determine whether an offense is a lesser-included offense of another, which requires that the lesser offense's elements be "a subset of the elements of the charged offense"). 2010] PROSECUTORIAL AGNOSTICISM 87 reasonable doubt, no legal or ethical standard prohibits the prosecutor from pursuing it.32 The prosecutor might file the higher charge to gain leverage over the defendant in plea negotiations,33 and Bordenkircher v. Hayes suggests that such charging practices are permissible so long as the charges are supported by probable cause.34 Prosecutors also routinely charge defendants despite uncertainties about guilt when they accuse a defendant of multiple, inconsistent charges. Consider, for example, a case in which police arrest the defendant as a seller in a hand-to-hand drug transaction. After a chemical test of the powder that he sold reveals that the substance was baking powder and not cocaine, the defendant claims that he knew the drugs were "bunk." His statement, if credible, would make him guilty of theft by deception. Police, however, have other evidence suggesting the defendant believed the substance was cocaine and was himself deceived by his distributor. Based on this evidence, the prosecutor personally believes that the defendant is guilty only of attempted drug distribution and is not guilty of theft. Nevertheless, following the common practice of submitting alternative theories to a jury, the prosecutor might charge the defendant both with attempted drug distribution and theft, submitting the charges to a jury in the alternative. Rather than frown upon such charging decisions, courts have encouraged them. For example, the New York Court of Appeals has held that depraved indifference murder is not a lesser-included offense of intentional murder. Rather, depraved indifference murder and intentional murder are inconsistent charges because an actor cannot simultaneously have the purpose to cause death and be indifferent to the risks of death.3' However, even though the charges are inconsistent, prosecutors generally are not required to elect a theory prior to trial. 32 See Tracey L. Meares, Rewards for Good Behavior: Influencing ProsecutorialD iscretion and Conduct with FinancialI ncentives, 64 FORDHAM L. REv. 851, 864 (1995). 3 Angela J. Davis, The Legal Profession's Failure to Discipline Unethical Prosecutors, 36 HOFSTRA L. REv. 275, 285-86 (2007) (noting that the Model Rules do not expressly prohibit overcharging, which may be used to gain an advantage during plea bargaining); Leslie C. Griffin, The Prudent Prosecutor, 14 GEO. J. LEGAL ETHICs 259, 271 (2001) (observing that the ethical standards in plea bargaining are "not very restrictive"); Meares, supra note 32, at 864-65 (discussing how plea bargaining may influence the practice of overcharging). 34 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); see also Rachel E. Barkow, InstitutionalD esign and the Policing of Prosecutors:L essons from Administrative Law, 61 STAN. L. REV. 869, 879 (2009) (observing that Bordenkircherg rants "prosecutors the ability to exact a heavy price on defendants who opt to take a case to trial in order to get them to plead guilty to the charge the prosecutor believes is the appropriate one"); Tung Yin, Not a Rotten Carrot: Using Charges Dismissed Pursuantt o a Plea Agreement in Sentencing Under the Federal Guidelines, 83 CALIF. L. REV. 419, 463-64 (1995) (noting that Bordenkircher appears to permit prosecutorial overcharging). 3 People v. Gallagher, 508 N.E.2d 909, 909-10 (N.Y. 1987); see also N.Y. CRIM. PROC. LAW § 300.30(5) (McKinney 2002) ("Two counts are 'inconsistent' when guilt of the offense charged in one necessarily negates guilt of the offense charged in the other.").