Confessions of An Ex-Prosecutor: Post Up Over At Reason

Today I've got a post up at Reason Magazine reflecting on how three different cultures shape prosecutors.

Last 5 posts by Ken White

Comments

  1. Castaigne says

    It is a very good article. I immediately shared it to everyone I know, because it is important for people to know what you know.

    It also made me sad, because I know nothing will change.

  2. Matt Norwood says

    Great piece. Regarding the cultural effects of Law & Order, an anecdote from my time at Columbia Law: we had a couple of the producers come to campus for a panel on the representation of law and lawyers in the media. At the Q&A, after a few fawning comments from the crowd, I stood up and asked them how they dealt with the issue of balancing the need for drama and "grittiness" in their show against the very real effects these media portrayals have on people's understanding of legal rights and legal ethics. By way of example, I told them that a significant portion of my incoming class had been surprised to learn in our Civil Procedure course that, no, you can't encourage your clients to lie in depositions (I guess they'd all taken the "sleazy criminal defence lawyer" stereotype to heart and assumed this was standard operating procedure). I also told them that I didn't think it was their job to give out civic lessons every week, or to return us to the age of squeaky-clean Perry Mason portrayals of the legal profession. But, I prodded, isn't it something they ever worry about? And what do they think about it?

    You would think I had called them Nazis. One of them stood up and angrily yelled at me: "If these people can't tell the difference between a TV show and reality" yadda yadda yadda. Never mind that I'd just told him about a specific example of future lawyers at a prestigious law school having failed to make that distinction. Never mind that I'd attached all the caveats about this not being a criticism of their show.

    I think I may have touched a nerve.

  3. staghounds says

    I'm lucky.

    I work in an office where the mission has always been "do what is right." I've been through three electeds now, and I have never been asked about winning or losing cases. We don't win or lose cases anyway, the facts do that. If I present all the truth to the Court and a jury or judge thinks it's not enough, I won. A loss is failing to present information.

    We follow the Parable of Twister.

    My bosses don't keep stats. We have an open file discovery policy. If I were to lie, to anyone, I'd be fired immediately.

    I wonder how much of what you talk about is a result of the bureaucratisation of USA and big offices?

  4. says

    This was a fanatic piece, Ken. My sole (minor) quibble is the venue you chose. I loves me some Reason.com, but yours is a powerfully persuasive narrative that seems wasted there. I wish you had published it with a publication whose readers aren't already part of the choir.

    But, as I said, that's just a quibble. The piece was fantastic.

  5. CP Garrett says

    Great article. The concepts can be applied to the many different life experiences which can shape our perspectives, depending on which side we sit. It reminds me of the old saying about walking in someone else's shoes.

  6. Argentina Orange says

    @RTod

    Who else do you think would be willing to publish that? The Stranger?

  7. Your humble reader says

    An interesting take — but one that's (perhaps intentionally) blind to the similarities between how you arrive at your current world view and how prosecutors arrive at theirs.

    You think that prosecutors' views are formed by "cultural" influences — the internal camaraderie of the prosecutors' office; the pro-law-enforcement cultural norms of American culture writ large, as formed by tv shows and movies; and legal rules that, by encouraging prosecutors to argue for immateriality in the case of a constitutional violation, make those same prosecutors believe that the underlying rights are unimportant.

    Yet when it comes to your current perspective, you seem to believe that your (doubtlessly enlightened) views are the product just of well-earned experience and observation.

    Might I suggest that a more honest account would acknowledge that both sides are affected by both kinds of influences?

    For instance, your current defense views, and those of your colleagues, are partly the product of camaraderie within the defense bar, where defense counsel take pride in each others' victories, commiserate about the judges and prosecutors they dislike, and react angrily when those on their side receive even well-justified criticism. (When some CJA lawyers in a certain district were found to be misserving their clients while running up the tab and perhaps billing fraudulently, I seem to recall that the public reaction of the criminal defense bar was to band together — not to criticize their colleagues for cheating the system and their clients.) You and your colleagues also are formed by the cultural influences which valorize defense counsel ("To Kill a Mockingbird"; "Perry Mason"), demonize the police ("Training Day"; "Serpico"), or portray defendants as innocent or sympathetic ("Shawshank Redemption"). And, of course, legal culture encourages you frequently to focus on matters that have nothing to do with guilt or innocence, in a way that ultimately says that very important things (like whether someone killed someone else) don't in effect, matter. (Instead, those legal norms allow the outcome of a case to turn on the ability to exclude damning evidence; the ability to seat a nullifying holdout juror; the ability to make the jury doubt the veracity of prosecution evidence that you in fact know is true; etc.).

    On the flip side, I don't think you give enough consideration to the possibility that many prosecutors' views are also formed by hard experience. They've experienced witnesses being killed by defendants and by those acting for the defendants. They've experienced the defense putting on false evidence–using defense-tilted discovery rules (which impose far greater duties on the prosecution than on the defense) to try to launch an utterly false defense with no warning, on the expectation that the prosecution, learning about the defense mid-trial, would not have the time to gather the evidence to defeat it. They've experienced particular defense lawyers who — yes — are unethical and even criminal. And they've seen particular defendants take advantage of a sweet deal and then cause tremendous harm to actual victims. You talk about a couple of personal experiences of being wrongly accused of misconduct while a prosecutor — but you miss these other experiences that prosecutors do in fact have. Perhaps that's because your prosecutorial career was, as I think you acknowledge, pretty short.

    None of this means that one side is right and the other is wrong. But your one-sided explanation of the way different teams works either shows a kind of blindness, or (if you in fact realize the points I'm making, but chose not to discuss them) reveals an advocate's inclination to try to make your point by not acknowledging the other side.

  8. SJE says

    OT: re editing the firm blog.
    For Ken's associates who are not jumping at the chance to edit the firm blog: don't pass up the chance! Its probably a PITA, but well worth it to get your name out there. Speaking from experience.

    At the same time, I know associates can be reticent if they fear that they will get in trouble for not following the "approved" firm line. Also speaking from experience.

  9. Sinij says

    Interesting read, thank you.

    Re: "Legal Culture Can Change" I don't think so. Legal culture is rotten to the core, and if not for rare people like Ken I would be certain that every practitioner on ether side are corrupt and/or morally bankrupt.

  10. Salem Al-Damluji says

    As ever, the problem isn't the rights, it's the remedies.

    Exclusion of evidence is a terrible remedy for an illegal search. The law is crazy if, in the Dirty Harry reductio you give, an obvious murderer goes scot free because a policeman didn't follow the correct procedures. If Callahan is violating people's rights, then punish Callahan – it defies logic and justice to give Scorpio a do-over. If the only way to uphold our rights is to exclude legitimate evidence, then of course our all-too-human judges and prosecutors will come up with doctrines of "harmless error," and "lack of prejudice," and "qualified immunity," and the associated culture you complain of.

    Remedies need to be commensurate with the breach. If a policeman made an immaterial lie on a warrant application, the policeman should be fired, but the evidence should still be admissible. To give this teeth, courts should be able to exclude the evidence unless and until the wrongdoer is punished. This rule protects the public better from law enforcement overreach, and because it is forward-looking, is more acceptable to judges' sensibilities, and thus more incentive-compatible. Instead of saying that legitimate evidence can never be looked at because of a past search no-one can change, it would be saying that the evidence isn't being looked at because the county refuses to fire a rogue policeman. Now the pressure is in the other direction, and the prosecutors' culture will change too.

    Similar analysis applies to the other examples you give; the absurd remedies demanded are undermining our legitimate rights.

    Yet the exclusionary rule is, of course, the best possible remedy from the perspective of the defence bar – of course people who spend their time looking for ways for their client to go free would like it. Your article makes a lot of good points about prosecutorial overreach, but I think you do not come to grips with the reasons why we went from Andy Griffith to Dirty Harry, or why the "law and order rhetoric" you dislike struck such a powerful chord. I agree with "Your humble reader" above that you are still a product of the somewhat unhealthy culture you are currently in, and I hope you continue to improve and learn.

  11. En Passant says

    The Reason Article is excellent.

    I never practiced as a prosecutor. I only practiced criminal defense, and only for a short time. After reading your article, I'm damned glad I had the moral gumption never to practice as a prosecutor. It's a license to do as much harm to innocents as possible, with almost no consequences for crimes committed while doing so.

    Even the notorious Michael Nifong, who was conclusively proved (and confessed) to have brought an entirely bogus case against three factually innocent defendants, only spent a day in jail. If there were any justice, he would still be in jail, for the maximum term of the crime (times three) for which he tried to frame three innocents for a crime that never happened.

  12. says

    @your humble reader

    Might I suggest that a more honest account would acknowledge that both sides are affected by both kinds of influences?

    you might. However, it's a point that needs a far better argument than the one you have given it.

    By way of example: it certainly is true that there are media that skew portrayals on both sides of the issue. However, you're going to be on the thin ice if you want to argue that they weigh equally. We could debate the number of media on each side or their influence, but I'm not sure there's a point. Federal prosecutors secure convictions at absurdly high rates. We jail people at a rate that only Stalin wouldn't be envious of. Convictions are secured on the most specious of evidence (e.g. cops in cruisers "smelling" booze in a car that passes near). Do you have any earthy idea how many innocent people we have put to death? If we could search through actual cases quickly, we would find far more instances of what I'm talking about than "witnesses being killed by defendants and by those acting for the defendants.". By orders of magnitude. I could go on and on but there's really no need. The information is out there.

    It's not that Ken is somehow immune to the biases of being on the side of the defense. It's that the system is so slanted in favor of the state that the argument that there is actually some sort of balance here Ken is ignoring cannot be taken seriously.

  13. J says

    Ken hits another home run.

    The article provides valuable insight into how and why our legal system (I am loathe to call it a "justice system" because as a whole it's largely unconcerned with justice) is as broken as it is.

    I'm another 'not-a-lawyer', but I've been saying for over a decade that our criminal legal system is geared toward doing everything it can to operate as an assembly-line for convictions.

    From the LEOs to the DAs to far too many judges – the immunities they are all granted, the different rulebooks to follow vs. the accused, the different expectations of conduct (lying/concealing facts/evidence, etc.), the different standards to which they're held, and the greater level of "presumed credibility" they're given — they have long worked together to oil the machine and stack the deck against the accused in every way they possibly can.

  14. says

    Castaigne is sad because he knows nothing will change.

    I'm say because I know that if good people don't work to make things better, the system will evolve (as it has been) toward worse. As Edmund Burke said, "The only thing necessary for the triumph of evil is for good men to do nothing."

    Ken has made a start, just by calling attention to the problem. You (any of you) can help. Try suggesting a way for the System to be different. Even if (ultimately), it's a bad idea, it will stimulate thought on the issue. But do not just accept evil.

  15. says

    Excellent article. As a former federal law enforcement analyst, I saw many similarities to your experiences in mine. The Esprit de Corps, the GroupThink, the horrible incentives away from upholding the constitution, and having too often to convince oneself to become a cheerleader for bad laws lest one goes insane from having to throw people way for a terrible reason. It needs to change. Thanks for pointing that out in a sane, nuanced and experienced manner.

  16. John W. says

    You repeatedly allege prosecutors are obligated to argue a position contrary to the law:

    Prosecutors Are Duty-Bound to Argue That Rights Don't Matter

    Nearly every type of law enforcement misconduct presents a prosecutorial opportunity—an obligation—to argue that the misconduct doesn't matter

    In other words, they're duty-bound to argue that the violation of rights, if it occurred, didn't matter.

    You know such an obligation does not exist, so why would you make such a claim? In fact, in California all lawyers–except criminal defense attorneys–are obligated to maintain actions that are legal and just. (See California Business and Professions Code 6068, subsection c.)

    Before making broad sweeping claims about a profession, shouldn't you use evidence instead of anecdotes to support your claim? Especially when your anecdotal evidence is confined to one prosecutor's office, for a period of 7 years, and is at least 15 years stale?

    If you value intellectual honesty, you should seriously consider amending your sweeping generalizations.

  17. Faradn says

    Am I the only one for whom Popehat doesn't update for weeks, and then suddenly there will be half a dozen articles at once, complete with comments from much earlier dates? I've tried different computers, doesn't seem to matter.

  18. bst says

    @Faradn, Popehat updates regularly but there is a bug in the web site that causes the browser not to recognize that the page has changed unless you force a refresh by holding the shift or the control key while either clicking on the browser's refresh button or pressing the F5 key.

  19. ysth says

    I'm happy when jurists like Judge Kozinski names and shames

    should be "name and shame", jurists being plural.

  20. M B says

    @Salem Al-Damluji

    In theory, yes, but in practice, either the LEOs would band together more and it'd be impossible to get anything called an improper search because people wouldn't want to punish their own for taking down a "bad guy," or the rules would be implemented too harshly and no one would be a cop. Exclusionary evidence rules are far better for avoiding both the above situations.

    Also,

    "A famous Kennedy assassination conspiracy theorist accused me of being part of a shadowy conspiracy with an airline to persecute his client, who was charged with interfering with a flight crew." Heh, I would have framed that complaint.

  21. GuestPoster says

    The bit about flashing a badge for special treatment reminds me of a website I saw some time ago. It was cops, outing other cops. Not for being dirty, of course, but for… *gasp* doing their jobs. It was to shame cops who did not extend 'professional courtesy' to other cops, and dared to write speeding tickets even after seeing that the person breaking the speed limit was a cop! And had a badge!

    It amazed me that there were enough cops who weren't at all ashamed of their conduct, who were happy to shame others for actually doing their job, and treating all people equally, that they could maintain the website.