There's Always a Prosecutor

 Posted on September 28, 2010 in Uncategorized

Mike (Crime and Federalism) writes:

I blog about prosecutorial misconduct more than anyone else. People are too busy creating Twitter norms. Because criminal lawyers should be more worried about whether some moron is duping lawyers into signing marketing contracts. (!)

Fair criticism? Possibly. In the scheme of things, whether prosecutors are cheating and putting people in prison (or death row) who shouldn't be there is more important than whether lawyers are getting ripped off by marketers or saying stupid things on Twitter. Prosecutors are cheating and putting people who don't belong in prison and on death row. The public must be told.

To criminal-defense lawyers, though, this is not news. Of course prosecutors cheat.Not all (any prosecutorial reader is free to pretend that he and all of his friends are exceptions to the rule), but many-and maybe most-prosecutors cheat at least a little bit. They hide exculpatory evidence, they lie to judges, they lie to defense lawyers, they encourage witnesses not to talk to the defense. Where does their ethical compass come from? We've got 27-year-olds with no real-world experience supervising 25-year-olds with no life experience. They learn to cheat when they're baby lawyers, and never learn any better. In a case I tried recently, a senior Harris County prosecutor had told a cop he could interrogate someone in jail despite knowing that I represented him. In ways large and small, prosecutors treat what they do as a game, and they bend the rules of that game as far as they can get away with. Prosecutors cheat, and we have to watch them vigilantly to try to keep their cheating from hurting our clients.

But, you might say, there are some incidents of prosecutorial misconduct that rise above the everyday. No, we're just haggling over the price.

While I have some non-lawyer readers, I'm writing for other criminal-defense lawyers; to those readers, prosecutorial misconduct is news maybe when the prosecutors get caught and definitely when they get punished, because prosecutors getting caught cheating is rare, and prosecutors getting punished when they get caught cheating is rarer still. Otherwise? Dog bites man.

Besides, the difference between prosecutorial misconduct and perfectly acceptable (to society at large) prosecutorial conduct is not that clear. Often, the prosecutors just doing their jobs mess up people's lives worse than the cheaters do. Every innocent person ever imprisoned was imprisoned because of a prosecutor's work, and some of those prosecutors were acting in good faith.

Aside from relying on forms of evidence that anyone who doesn't furiously want to believe would recognize as suspect (eyewitness testimony, jailhouse snitches, dog smell-ups, and so on) and using rhetorical tricks skill (like making people afraid) to get juries to convict people based on something other than the evidence, prosecutors make it a habit of arguing for propositions of law that would necessarily take us a little closer to totalitarianism by curtailing our freedom a little more.

Every time a court docks human freedom in any way, it is because a cadre of prosecutors has asked that freedom be curtailed. And every time a court preserves for the people some wisp of freedom, there are prosecutors arguing against the preservation of that wisp of freedom.

Consider:

In this case we must decide whether the Legislature, by its wholesale incorporation of Penal Code offenses into the juvenile justice provisions of the Family Code, intended to permit prosecution of a thirteen-year-old child for prostitution considering its specific pronouncement that a child under fourteen is legally incapable of consenting to sex with an adult. We conclude that transforming a child victim of adult sexual exploitation into a juvenile offender was not the Legislature's intent, and reverse the court of appeals' judgment.

That's from the Texas Supreme Court case, In the Matter of B.W., decided in June.

A thirteen-year-old, legally unable to consent to sex, can't be prosecuted for offering to exchange sex for money. It shouldn't even bear mentioning, should it? It wouldn't, except that there were at least five lawyers from the Harris County District Attorney's Office arguing in Austin that a 13-year-old child should be prosecutable for prostitution.

I've described the philosophical difference between prosecutors and criminal-defense lawyers as between fighting for safety, and fighting for freedom. But that doesn't quite capture it. Sometimes what prosecutors seek will make us safer in at least some attenuated way. Often, though, prosecutors are fighting for order and for authority for its own sake.

When criminal-defense lawyer Anne Johnson won B.W.'s appeal, B.W. and other child victims of sexual exploitation became more free. Pat Lykos and her posse went to Austin to fight for their power to prosecute a child for offering oral sex to a cop; does that make you feel safe?