A recent article in the New Yorker presents some very disturbing insights into the sense and sensibilities of the most junior (still) Senator from Illinois, Roland Burris.

In "The Replacement," Jeffrey Toobin relates several stories about Burris, one of which was about an appeal of a death penalty case while Burris was serving as the Attorney General for Illinois.  Briefly, the appeal to the Illinois Supreme Court in 1991 came from a rape/murder of a ten-year-old girl in 1983.  Two defendants had been tried and convicted, but their convictions had been overturned on appeal in 1988, and they were retried separately.  One was retried and eventually convicted and sentenced to 80 years in prison, while the other was retried, convicted, and sentenced to death.  As Attorney General, Burris was responsible for the appeal of the death sentence, and the preparation of the appellate brief was assigned to a young lawyer named Mary Brigid Kenney (now Mary Brigid Hayes).

Hayes read the briefs of the defendant, went through the record, and reached two conclusions.  One conclusion was that the man on death row was innocent.  Before the defendant had been retried, another man (not the other original co-defendant) had confessed to the rape/murder, and DNA testing showed that it was the other man's semen on the victim, and not the defendant's.  The other conclusion was that the defendant had not received a fair trial, because the DNA evidence was excluded and the jury was not allowed to hear about it.

Hayes reported her conclusions to Burris, the Attorney General continued to oppose the appeal and push for execution, and Hayes resigned.

That is all background, because what is significant is not that Burris and Hayes reached different conclusions about the facts and the law, but Burris's explanation of why he acted as he did, and his assessment of what Hayes did.

Hayes's resignation became public knowledge and, in a press conference held to explain his actions, Burris said that "A jury has found this individual guilty and given him the death penalty.  It is my role to see that it is upheld. That's my job."  In his more recent interviews with Burris, Toobin reports that Burris "faulted Mary Brigid Hayes for her behavior."  Burris understood that Hayes concluded that the defendant was innocent but said, "Well, that's not for a lawyer to decide."

Burris was wrong (and is wrong) about "my job" and wrong about what is "for a lawyer to decide."  Rule 3.8(a) of the Illinois Rules of Professional Conduct states that "The duty of a public prosecutor or other government lawyer is to seek justice, not merely to convict."

The Model Rules of Professional Conduct of the American Bar Association are more convoluted, but would reach the same result.  Rule 3.8(h) states that "When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction."

As a lawyer serving as Attorney General, it was not the job of Roland Burris to uphold the conviction of an innocent man, but it was his duty to seek justice.

And if Hayes believed that the defendant was innocent, then the rules of professional ethics required her to make that innocence known.  Whether she should have complied with the decision to proceed to oppose the appeal, or should have resigned, is something on which reasonable minds might differ.  (She might have been absolved if she had decided to defer to the judgment of her superiors.)  But any lawyer with any understanding of legal ethics would agree that Hayes should be commended for her decision to sacrifice her job for her commitment to justice, and should not be criticized for that decision.

So Burris, who served as the Attorney General of Illinois (and so the top prosecutor), did not understand his job and did not understand the ethical obligations of the lawyers who worked for him, and would flunk Legal Ethics 101.

What is more disturbing is the future.  If the John Yoo "torture memos" become an issue before the Senate (and if Burris continues to serve in the Senate), then Burris might have an opportunity to opine on the "job" of John Yoo.  Was the job of John Yoo to uphold the decision of the Bush adminstration to obtain information from detainees by whatever means necessary?  Or did Yoo have a legal, professional, or human obligation to "seek justice"?  Can Yoo be absolved of any responsibility for his opinions if he was "following orders"?

In God Bless You, Mr. Rosewater, Kurt Vonnegut wrote that, in any large financial transaction, there is a moment when the money doesn't belong to anybody, and that's when the lawyers take their cut.

What we are seeing in the AIG bonuses, and in investment banking in general, is that we have created a system in which there are long periods of time when the money doesn't seem to belong to anybody, and Wall Street executives have learned that they can take a lot, and they have been taking as much as they think they can get away with.

What we have lost is the concept of the fiduciary relationship.  Directors of corporations are not the owners of the corporations, but represent the owners, who are the stockholders.  And so the directors have a duty to the shareholders to protect the interests of the shareholders.  In an investment or commercial banking firm, there are also duties to the depositors and other creditors of the firm.

If the fiduciaries of an estate or trust (i.e., executors or trustees) take too much compensation, the beneficiaries can go to court and the court can reduce the compensation to what is reasonable and order the fiduciaries to return the money.  The shareholders of a corporation might have the right to file a shareholder's derivative suit, but that remedy is tangled and relatively uncertain.

As Robert Reich points out, the United States now seems to have gotten itself into a position where it is financially responsible for AIG and other firms, but has no authority to enforce any rules of behavior against those firms.

But the problem is not limited to the United States government, because we have created a financial system in which we have trusted the people holding the money not to take too much, and we have believed (or assumed or hoped) that the amounts they have taken in the past were reasonable compensation, and that they were worth it.  They weren't worth it, and we need to set up a new system in which the compensation of the people managing the money is set by the people who own the money, and not the managers themselves.

The "bonus" payments at AIG now make it clear that the problem is not "toxic assets" but "toxic executives."

The mortgage-backed securities, credit-default-swaps, and other nonsense now described as "toxic" aren't really "toxic" in the usual sense of the word.  One bad security doesn't poison another security.  But the executives who caused this mess, who so far show no signs of fixing it, and who are getting paid bonuses for their failures are poisoning public opinion, as well as whatever corporate culture might be left and the chances for a rational political solution.

It is the managers that are toxic, and not the assets.  And we need to get rid of them.

Sidenote:  I can't help but wonder what kind of contract requires the payment of a "bonus" even though your decisions lost so much money that you have bankrupted the firm.  It is clearly not performance-based, so what is it based on?  It looks as though a "bonus" must be required as long as you (a) have a pulse and (b) have not gone on a shooting spree within the corporate offices.