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"?