How many recusals are necessary in this scenario?

When he’s arrested for corruption and abuse of power, OCPD Major Jude Ellis finds himself prosecuted by District Attorney Madison Harper. She has a well-earned reputation for being incorruptible and impossible to intimidate, a rarity in this futuristic setting. For the first time in his career, Major Ellis can’t easily bribe or bully his way out of trouble.

Ellis decides his best chance at avoiding prison is to eliminate Madi and hope her death scares off other prosecutors who might try to hold him accountable, so he hires a superhuman hitman to murder her. Madi only survives three separate attacks from this assassin thanks to the intervention of her vigilante ex.

Here’s where my problem arises: Madi has indisputable evidence Ellis placed the contract on her life, and prosecuting someone who tried to kill you is an obvious conflict of interest. By all rights, she should recuse herself from the case. But what about the rest of her office? Does this case need to be passed to another DA or the Attorney General?

There’s some dramatic potential in those possibilities, since the AG is rotten and the neighboring DAs are a mixed bag, but I don’t want to explore them unless the entire office recusing itself is realistic.

My research hasn’t turned up anything helpful so far. Assassination attempts against prosecutors are vanishingly rare in the United States, and most instances of entire offices recusing themselves from a case seem to be rooted in past relationships with the defendant. Nothing that would apply here.

The answer to this question may have major plot implications, so any insight you guys can provide is much appreciated.

 

If it is a future setting, maybe you could have alternate laws or ways of doing things that fit whitin your narrative, that would be more interesting for the story? Just be sure to explain it as well. My thoughts only. Know little about laws or court systems.

 

Usually departments and agencies investigate themselves and find themselves completely free of any foul play.

 

Perhaps, though I’d consider it a last resort. The setting isn’t very far into the future, so any changes in the law can’t be too drastic. Probably nothing more than requiring a case to be passed up to the AG if there’s an office-wide conflict of interest…which still requires me to figure out if this is big enough to call an office-wide conflict of interest.

In fact, that’s the dramatic potential I referenced. Ellis has connections with the AG and some of the local DAs, mostly through local police unions and the FOP. He could lean on them to drop the charges or purposely botch the case. Since some of the evidence against him was gathered under the private search doctrine, there is a flimsy pretext they could hide behind.

Madi would obviously want to avoid this, but her options are limited. She’s ethically bound to recuse herself if there’s a conflict of interest. Even if she sat on the evidence, it’s guaranteed to come out eventually and overturn any conviction against Ellis. So I’m looking at:

1) She hires a new ADA—who doesn’t have an existing relationship with her, and thus no conflict of interest—to fill an existing vacancy and prosecute the case. But I suppose you could argue the opportunity to curry favor with the new boss presents a conflict of interest.

or

2) She accepts the state case may be a bust but passes the evidence proving Ellis ordered the hit against her to an acquaintance preparing the federal case against him. This is more than enough to guarantee a conviction on murder-for-hire and related charges.

But I want to make sure such measures are actually necessary.

 

Appoint a Special Prosecutor.

 

If attempting to kill is enough to create a conflict of interest (in this jurisdiction, modelled on the real-world US), and the prosecutors in the only non-corrupt office must all recuse themselves, would that let the antagonist stop at one attempt? And perhaps more of a gesture, using the superhuman for show? Then if he's caught he's defending a lesser charge and he might be able to argue he was just trying to scare the prosecutor.

If the triple repetition of the assassinations being foiled is virtuous (for reasons the OP hasn't had time to explain), there might be a slight motive problem with actual assassination being overkill for what the antagonist needs to achieve. But if (as sometimes happens) the repetition is a structural headache in the work, the legal technicality about recusal might be a way to fold several similar scenes into one stronger one.

In a fictional world based on the US, surely there would be poetic license around this: the fact the writer is having to look it up shows it isn't general knowledge.
Explaining and establishing the conflict-of-interest mechanic seems like something that should to be pushed toward the front of the story to avoid it interrupting the pace, and possibly re-mentioned if it's complicated. So the differences between this fictional US and the real world could be covered in the process.

Or could it be fudged slightly by making one of the attempts a bomb or something to target all the other prosecutors at the same time?

Of the two options in the second post, (1) necessitates creating an extra character and is possibly still questionable, whereas (2) seems more like how a legal system should approach it. It seems a criminal who is able to put this much pressure on the state prosecutors ought to be referred up to the federal ones. And I wonder if whole-office recusals are hard to find examples of because there is already a protocol somewhere in the apparatus or ordinances (or whatever the word is) that connect the two levels: to say that states have to escalate cases like this?

 

For Ellis, forcing the Oklahoma County DA’s office off the case by creating a conflict of interest is a very distant Plan B. He’d really prefer this woman who had the audacity to charge him dead, for personal and practical reasons.

When a DA dies in office or resigns, the governor appoints a replacement to fill out the rest of the term. Ellis hopes this will be a crony of the governor. Someone more open to bribery or intimidation, especially given their predecessor’s fate. Plata o plomo, you know?

Relying on the conflict of interest also exposes him to a great deal of risk. To force her off the case, him ordering a hit on her has to become known to the court. An assassination that may never be linked to him is a safer bet.

I feel like it will come up around the start of Act 2, after the dust from the first assassination attempt has settled and Madi is still trying to work while in hiding. This may actually the best way to keep her an active part of the suspense plot, which I’ve been having some trouble with.

This assassin really prefers killing up close and personal, so a bomb is probably out of character. It would make sure everyone has the same conflict of interest, though.

Yeah, I’ve been gravitating toward Option #2. It’s a fairly elegant solution, and there’s some dramatic potential in Ellis trying to leverage this conflict of interest only to be completely outmaneuvered by Madi turning to the feds. An ongoing case at the federal level may make it harder for other state prosecutors to sweep everything under the rug.

At this point, I’m leaning towards the entire office recusing themselves out of an abundance of caution. Nobody wants to risk a conviction being overturned because his lawyers are able to convince a court there was prosecutorial bias.

 

I don't believe murder is actually a federal offense. The federal government can't prosecute for something that isn't a violation of a federal law.

 

Murder isn’t a federal offense outside of the territories, tribal lands, national parks, etc. but murder-for-hire does fall under federal jurisdiction thanks to the Comprehensive Crime Control Act of 1984.

 

I do believe that in Texas, any attempted assassination of an elected official automatically falls under the jurisdiction of the Rangers. Perhaps something along that line would work for you.

 

I don't see why the entire office would have to recuse, so long as she keeps herself totally away from the case. In the old days this was called "building a Chinese Wall" (e.g. like the Great Wall of China) being sure that no one in the office shares evidence with her and she doesn't ask. I suppose if it were logistically workable, it might be best to turn over to another office or, if the law allows it, bring in a special prosecutor, but I don't think it would be necessarily required.

 

This might be tricky, given how closely the case against Ellis is tied to the cases against the other dirty cops who form the “Bricktown Boys”. A lot of the evidence overlaps.

 

Then she would have to recuse herself from all those cases-- but her office could still handle the case, I think.

 

In that case, given the specter this would cast over the effort to clean out their entire syndicate, Madi will probably use a provision of state law to ask the AG to pick another office to prosecute Ellis and rely on the federal case to prevent the state one from being quietly dropped.