Comments on: DA Traits: Arrogance and Viciousness or Humility and Compassion http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html the tao of criminal defense trial lawyering Sun, 21 Mar 2010 02:16:46 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: jigmeister http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html/comment-page-1#comment-1559 jigmeister Mon, 17 Mar 2008 17:37:56 +0000 http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html#comment-1559 I'll go with you. I’ll go with you.

]]> By: SHERIFF http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html/comment-page-1#comment-1557 SHERIFF Mon, 17 Mar 2008 17:24:47 +0000 http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html#comment-1557 Mark I think this is your best blog yet. As someone who has handled cases all over the state, Harris County is the most unpleasant venue I have experienced. There are places where you may find 1 or 2 prosecutors who have lost touch with the concept of seeking justice but in that instance you can usually find someone else to work with or simply set it for trial. However in Harris County the hubris that exists among prosecutors is without comparison. I think in part it is because of the adverserial system. It is not the fault of the individual prosecutor. In fact I have long said that the prosecutors in Harris County are well trained and effective when it comes to trying cases. There are many people who work there that are very competent, kind, and wise. But they are outnumbered. The prosecutors I write of are the prosecutors are not well trained in using their discretion. They are not well trained in being a human being first and a prosecutor second. Many are fresh out of law school with no life experience and truly do not know what it means when people say "There but for the grace of God go I". I know I didn't at 26-27. Many of the others have known nothing other than the Office. That is a huge problem. These prosecutors feed off of the vibe and energy that surrounds them and flows down and around them. It is an attitude of black and white. A vibe of good vs evil. A pervasive feeling that we are God's anointed, doing God's will and damn it if the accused was in the wrong place at the wrong time- then he must be guilty. He must be guilty if the cops said he is guilty bc cops dont lie. Cops don't manufacture evidence. So if something out of the ordinary is pointed out to SOME of these prosecutors by the defense lawyer, then instead of talking to the officer and dismissing the case, the zealouts instead opt to fix it before trial. It is an attitude of "I dont need to hear bc I already heard" (AHCL), not interviewing winesses until the day b4 trial, trying SJF's, seeking felony convictions on 1st time offenders, insisting on felony convictions for trace amounts of narcotics not bc they should, but bc they can, a mindset that that a guilty verdict is the goal, a 90 plus% conviction rate, not that justice is served. It is a dangerous thing, this attitude. It is for ALL the wrong reasons. It is creating a whole class of 2nd class citizens by the hundreds on a daily basis. These newfound 2nd class citizens have family and friends who are appalled at what is happening. I saw a study on PBS that by 2050 half of the population would be in prison, on probation, or on parole. People are scratching their heads, wondering, and finally, acting so that our children will grow up in the greatest country in the history of the world the United States of America, and not Prison Planet, USA. I agree times - they are a'changing. It can't happen soon enough. Mark I think this is your best blog yet. As someone who has handled cases all over the state, Harris County is the most unpleasant venue I have experienced. There are places where you may find 1 or 2 prosecutors who have lost touch with the concept of seeking justice but in that instance you can usually find someone else to work with or simply set it for trial.
However in Harris County the hubris that exists among prosecutors is without comparison. I think in part it is because of the adverserial system.
It is not the fault of the individual prosecutor. In fact I have long said that the prosecutors in Harris County are well trained and effective when it comes to trying cases. There are many people who work there that are very competent, kind, and wise. But they are outnumbered. The prosecutors I write of are the prosecutors are not well trained in using their discretion. They are not well trained in being a human being first and a prosecutor second. Many are fresh out of law school with no life experience and truly do not know what it means when people say “There but for the grace of God go I”. I know I didn’t at 26-27. Many of the others have known nothing other than the Office. That is a huge problem. These prosecutors feed off of the vibe and energy that surrounds them and flows down and around them. It is an attitude of black and white. A vibe of good vs evil. A pervasive feeling that we are God’s anointed, doing God’s will and damn it if the accused was in the wrong place at the wrong time- then he must be guilty. He must be guilty if the cops said he is guilty bc cops dont lie. Cops don’t manufacture evidence. So if something out of the ordinary is pointed out to SOME of these prosecutors by the defense lawyer, then instead of talking to the officer and dismissing the case, the zealouts instead opt to fix it before trial. It is an attitude of “I dont need to hear bc I already heard” (AHCL), not interviewing winesses until the day b4 trial, trying SJF’s, seeking felony convictions on 1st time offenders, insisting on felony convictions for trace amounts of narcotics not bc they should, but bc they can, a mindset that that a guilty verdict is the goal, a 90 plus% conviction rate, not that justice is served. It is a dangerous thing, this attitude. It is for ALL the wrong reasons. It is creating a whole class of 2nd class citizens by the hundreds on a daily basis. These newfound 2nd class citizens have family and friends who are appalled at what is happening. I saw a study on PBS that by 2050 half of the population would be in prison, on probation, or on parole. People are scratching their heads, wondering, and finally, acting so that our children will grow up in the greatest country in the history of the world the United States of America, and not Prison Planet, USA. I agree times – they are a’changing. It can’t happen soon enough.

]]> By: AHCL http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html/comment-page-1#comment-1539 AHCL Sun, 16 Mar 2008 14:34:42 +0000 http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html#comment-1539 Grits, I'm not trying to absolve myself from anything. The whole thing just sucks to high heavens, and I agree with you that saying "it's not my fault" doesn't help the blameless. Maybe I'm too dense to come up with a solution to it. When Jigmeister said you were calling for the abolition of adversarial system, you disagreed strongly. But other than not punishing defendants with incarceration (and thus taking them away from their families), what are some real and meaningful suggestions? I'm not being facetious, I'd really like to know. Hell, I'd come up to Austin and go to Capital Hill with you, Grits, if we could find some meaningful way to protect kids of incarcerated parents. But as it stands right now, I don't see those options. Grits,
I’m not trying to absolve myself from anything. The whole thing just sucks to high heavens, and I agree with you that saying “it’s not my fault” doesn’t help the blameless.
Maybe I’m too dense to come up with a solution to it. When Jigmeister said you were calling for the abolition of adversarial system, you disagreed strongly. But other than not punishing defendants with incarceration (and thus taking them away from their families), what are some real and meaningful suggestions?
I’m not being facetious, I’d really like to know. Hell, I’d come up to Austin and go to Capital Hill with you, Grits, if we could find some meaningful way to protect kids of incarcerated parents.
But as it stands right now, I don’t see those options.

]]> By: Gritsforbreakfast http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html/comment-page-1#comment-1538 Gritsforbreakfast Sun, 16 Mar 2008 13:25:03 +0000 http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html#comment-1538 And yet, AHCL, having concluded you are not to blame, does this system (personified by you and yours) still "owe nothing" to the children of incarcerated parents? You've explained how you sleep at night, but assigning blame isn't the really the point. Sure, defendants may use their kids as an "excuse," but that just doesn't reduce one iota the harm caused to the kids, who are blameless in the crime but whom your actions punish probably worse than the offender (many adults don't mind sitting out a jail sentence, but you can't get back childhood years spent without a father or mother). The system is causing what economists call "externalities," i.e., harms to third parties who don't deserve it and are uncompensated for their loss. Saying "it's not my fault" does remarkably little to help the blameless who are nonetheless harmed. It's more of a defensive reaction than a public policy argument, and sadly conversations on this topic rarely get much farther than that. And yet, AHCL, having concluded you are not to blame, does this system (personified by you and yours) still “owe nothing” to the children of incarcerated parents? You’ve explained how you sleep at night, but assigning blame isn’t the really the point.

Sure, defendants may use their kids as an “excuse,” but that just doesn’t reduce one iota the harm caused to the kids, who are blameless in the crime but whom your actions punish probably worse than the offender (many adults don’t mind sitting out a jail sentence, but you can’t get back childhood years spent without a father or mother).

The system is causing what economists call “externalities,” i.e., harms to third parties who don’t deserve it and are uncompensated for their loss. Saying “it’s not my fault” does remarkably little to help the blameless who are nonetheless harmed. It’s more of a defensive reaction than a public policy argument, and sadly conversations on this topic rarely get much farther than that.

]]> By: AHCL http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html/comment-page-1#comment-1530 AHCL Sun, 16 Mar 2008 00:28:13 +0000 http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html#comment-1530 I think there is a lot of ambiguity in prosecution, and none of it makes anyone happy. The thought of putting someone in jail for a long period of time for a "victimless" charge when they have small children is horribly sad. The flip side to that is that many defendants use their children as an excuse for less time, when they have no intention of spending additional time with their children upon release. Attorneys who deal with criminals are a cynical lot who have heard almost every excuse known to mankind. Here are some regulars: 1. "I've been to the pen seven times, but not one of y'all ever tried to give me probation. I want probation now." 2. "I can't do six months state jail, because my girlfriend is having our baby in five and a half months. However, I can take 12.44(a)." 3. "I shot that guy in the aggravated robbery because of my drug problem. I'll take some treatment and a dismissal." I know I'm over simplifying, but sometimes statements like that will choke the compassion out of a prosecutor and replace it with even greater cynicism. Sadly, the Defendant's families (AKA voters) are singing the chorus to the defendants' songs. That being said, some of the most heartbreaking moments I've had in the aftermath of a trial (on violent crimes) is to see a parent going to prison for a lengthy time (let's say for the sake of the argument that a lengthy sentence was appropriate in light of crime & criminal history), leaving small children, sometimes infants crying in the audience. There were plenty of moments that I hated my job as a prosecutor because of that. I had no doubt that the sentence was appropriate, but the effects on the small children of Defendants broke my heart. I'm all for compassion where a prosecutor can exercise it, but there are many occasions where that just can't stop a severe sentence. Ultimately, that blame lies with the Defendant for committing the crime (assuming it was proved BRD), not the prosecution. I think there is a lot of ambiguity in prosecution, and none of it makes anyone happy. The thought of putting someone in jail for a long period of time for a “victimless” charge when they have small children is horribly sad. The flip side to that is that many defendants use their children as an excuse for less time, when they have no intention of spending additional time with their children upon release.
Attorneys who deal with criminals are a cynical lot who have heard almost every excuse known to mankind. Here are some regulars:
1. “I’ve been to the pen seven times, but not one of y’all ever tried to give me probation. I want probation now.”
2. “I can’t do six months state jail, because my girlfriend is having our baby in five and a half months. However, I can take 12.44(a).”
3. “I shot that guy in the aggravated robbery because of my drug problem. I’ll take some treatment and a dismissal.”

I know I’m over simplifying, but sometimes statements like that will choke the compassion out of a prosecutor and replace it with even greater cynicism. Sadly, the Defendant’s families (AKA voters) are singing the chorus to the defendants’ songs.

That being said, some of the most heartbreaking moments I’ve had in the aftermath of a trial (on violent crimes) is to see a parent going to prison for a lengthy time (let’s say for the sake of the argument that a lengthy sentence was appropriate in light of crime & criminal history), leaving small children, sometimes infants crying in the audience.

There were plenty of moments that I hated my job as a prosecutor because of that. I had no doubt that the sentence was appropriate, but the effects on the small children of Defendants broke my heart.

I’m all for compassion where a prosecutor can exercise it, but there are many occasions where that just can’t stop a severe sentence. Ultimately, that blame lies with the Defendant for committing the crime (assuming it was proved BRD), not the prosecution.

]]> By: Mark's Dad's Brother http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html/comment-page-1#comment-1529 Mark's Dad's Brother Sat, 15 Mar 2008 22:33:43 +0000 http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html#comment-1529 I'm in my usual state of confusion. If we have an adversarial system, and Mark and his brethren are advocates for one side, but jigmeister and his ilk are charged to ‚Äúseek justice,‚Äù not advocate, where's the adversity? I’m in my usual state of confusion. If we have an adversarial system, and Mark and his brethren are advocates for one side, but jigmeister and his ilk are charged to ‚Äúseek justice,‚Äù not advocate, where’s the adversity?

]]> By: Gritsforbreakfast http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html/comment-page-1#comment-1525 Gritsforbreakfast Sat, 15 Mar 2008 14:07:23 +0000 http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html#comment-1525 Of course you don't need absolving, jigmeister. After all, as Mark's correspondent said, prosecutors don't "owe anything to a defendant‚Äôs family," so if you accept that premise, why would they need absolution? I don't think I'm "lawyer bashing," but neither do I find comfort in what Doug Berman calls the "legal fictions" that allow the criminal justice system to inflict harm without accepting responsibility or acting to mitigate it. Put a father or mother in prison, and their kid is 6-8 times more likely than their peers to go to prison themselves, not just because of a bad parent (who is in prison) but for a host of well-understood psychological and socioeconomic reasons that are utterly predictable. But that's not the system's problem, says you and this ADA, even though ignoring it INCREASES crime in the long run. That amounts to the justice system chasing its tail generation after generation, and if you think acknowledging that reality is lawyer bashing, so be it. That said, it's hard not to notice that instead of addressing my specific points, you've accused me of "lawyer bashing" and wanting to do away with the adversarial system - in other words, dismissing criticisms by attacking the messenger with red herrings and questioning my motives. Color me unimpressed. One more thing. Many recent court innovations including in Harris County - drug courts, mental health courts, etc. - function precisely be reducing the adversarial aspects of prosecution to seek best outcomes instead of maximum punishment. Have you similarly accused those judges or the ADAs working those cases of wanting to throw out the adversarial system, or is that cheap shot reserved for non-lawyers? Of course you don’t need absolving, jigmeister. After all, as Mark’s correspondent said, prosecutors don’t “owe anything to a defendant‚Äôs family,” so if you accept that premise, why would they need absolution?

I don’t think I’m “lawyer bashing,” but neither do I find comfort in what Doug Berman calls the “legal fictions” that allow the criminal justice system to inflict harm without accepting responsibility or acting to mitigate it.

Put a father or mother in prison, and their kid is 6-8 times more likely than their peers to go to prison themselves, not just because of a bad parent (who is in prison) but for a host of well-understood psychological and socioeconomic reasons that are utterly predictable. But that’s not the system’s problem, says you and this ADA, even though ignoring it INCREASES crime in the long run.

That amounts to the justice system chasing its tail generation after generation, and if you think acknowledging that reality is lawyer bashing, so be it. That said, it’s hard not to notice that instead of addressing my specific points, you’ve accused me of “lawyer bashing” and wanting to do away with the adversarial system – in other words, dismissing criticisms by attacking the messenger with red herrings and questioning my motives. Color me unimpressed.

One more thing. Many recent court innovations including in Harris County – drug courts, mental health courts, etc. – function precisely be reducing the adversarial aspects of prosecution to seek best outcomes instead of maximum punishment. Have you similarly accused those judges or the ADAs working those cases of wanting to throw out the adversarial system, or is that cheap shot reserved for non-lawyers?

]]> By: Mark Bennett http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html/comment-page-1#comment-1524 Mark Bennett Sat, 15 Mar 2008 14:01:08 +0000 http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html#comment-1524 Observer, Enemies? I don't have any of those. Observer,

Enemies? I don’t have any of those.

]]> By: jigmeister http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html/comment-page-1#comment-1522 jigmeister Sat, 15 Mar 2008 13:29:22 +0000 http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html#comment-1522 Grits: You spell better than I can, but you are lawyer bashing, or maybe just prosecutor bashing, I am not looking for absolution of all my sins. But there is a basis distinction between the role of the prosecutor and defense attorney. That doesn't mean that we aren't cordial. I know that I, and that goes for ACHL too, have many friends that are defense attorneys. We go fishing together and occasionally socialize after work together. In trial against each other, we are normally friendly but aggressively putting forward the evidence. I'm sure that Mark will tell you that jurors come up to the trial lawyers after trials and tell us that after watching us in trial, they can't believe how friendly we are towards each other in the hall. It is only natural for the family members to see the opposing lawyer as the bad guy. Not sure there is a solution to that. Certainly there are those on both sides that view each other as the enemy. I am not one of them, nor are most trial attorneys. I won't name names, but perhaps you found one in Talula. I do think that enemy personality fosters the need to "win at all all costs". It would be a grave injustice to assume that one size fits all. Grits: You spell better than I can, but you are lawyer bashing, or maybe just prosecutor bashing, I am not looking for absolution of all my sins.

But there is a basis distinction between the role of the prosecutor and defense attorney. That doesn’t mean that we aren’t cordial. I know that I, and that goes for ACHL too, have many friends that are defense attorneys. We go fishing together and occasionally socialize after work together. In trial against each other, we are normally friendly but aggressively putting forward the evidence. I’m sure that Mark will tell you that jurors come up to the trial lawyers after trials and tell us that after watching us in trial, they can’t believe how friendly we are towards each other in the hall.

It is only natural for the family members to see the opposing lawyer as the bad guy. Not sure there is a solution to that.

Certainly there are those on both sides that view each other as the enemy. I am not one of them, nor are most trial attorneys. I won’t name names, but perhaps you found one in Talula. I do think that enemy personality fosters the need to “win at all all costs”.

It would be a grave injustice to assume that one size fits all.

]]> By: observer http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html/comment-page-1#comment-1519 observer Sat, 15 Mar 2008 11:11:39 +0000 http://bennettandbennett.com/blog/2008/03/da-traits-arrogance-and-viciousness-or-humility-and-compassion.html#comment-1519 You have friends who are prosecutors? Gosh, Mark, how do you talk about your enemies? You have friends who are prosecutors? Gosh, Mark, how do you talk about your enemies?

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