Tuesday, May 1, 2007


I'm still sick as a dog. You know what else is sick? Our justice system. (See, isn't that oh so clever of me?)

I've been wanting for some time to write about Prosecutors. In general. Not that I've ever been one or had to deal with one across the aisle directly. I have lots of links I want to put on this too, but right now I'm coughing enough that this will be short.

My main pet peeve with prosecutors is that they often seem to put the whole adversarial process and trying to nail someone ahead of this thing called justice, something which they are supposed to zealously pursue. It is not like when you have a civil suit, where you expect the hired gun for each side to be relentless in representation. Prosecutors are supposed to represent justice, not just getting convictions. They are supposed to only file charges where appropriate - not overcharge or charge where the evidence is thin, hoping a jury will sort it out. They are not supposed to argue legally suspect positions just to sustain a conviction. Again, the interests of justice require them to advocate for the correct rule of law, not just for whatever rule is convenient for them to win a motion or an appeal.

I've seen far too many do all sorts of shitty things, legally suspect things, at trial, and then make shady arguments on appeal. Arguments that they, as ministers of justice, have no business making. If there is an error in the law, they are sworn to recognize it. Sure, on appeal, they could argue the error was harmless, but they should never argue there was no error at all if the law is clear. That is not looking out for the interests of justice. Oh, and those shitty things done at trial - in my experience, they don't ever result in reversal on appeal. It is not like on TV where you see defendants getting off left and right on technicalities. If anything, it is the prosecutors who get off on technicalities, doing ethically suspect things at trial and then winning on appeal because they argue the errors were "harmless" to the result. One has to wonder if such errors really are "harmless" why prosecutors persist in using them against defendants.

I know this may sound vague. It is. I can't be specific for confidentiality reasons. But I will have more to say about this later. With links and everything.

(Boy, I hate being sick).


chickpea said...

Seems like everyone on the interwebs/blogosphere is getting sick. I have been getting my ass kicked this allergy season.

Drink some tea/have a hot toddy. Hopefully that'll help you relax and get some rest.

DBB said...

Thanks - I wonder if this sickness can be spread through blogs... there's a scary computer virus....

armagh444 said...

I am sorry to hear that you're ill. It seems to have been a bad season for just about everyone this year.

On the subject of the post, I think it's hard for people who have never worked in a District Attorney's office to understand the perspectives prosecutors bring to their jobs and the unique set of challenges entailed in the work.

Are there some who are unethical, who make questionable charging decisions and try to twist the law to suit their own desire to rack up a good conviction rate? Yes, but there are assholes in every field, and in my experience, the vast majority of prosecutors are good and honorable people who are careful in their charging decisions, respectful of the law, and devoted to serving their communities.

For the record, I think Public Defenders are unfairly maligned as well.

DBB said...

I don't doubt that there are lots of good prosecutors. There are just too many bad ones for my taste - but then it IS a pet peeve of mine, so I'm probably overly sensitive.

Then there are those like Nifong.

armagh444 said...

The same could be said, though, for any area of the law.

As far as Nifong goes, well, don't even get me started on him.

DBB said...

Oh yes, I've seen plenty of horrible defense attorneys - briefs that make you want to cry for the client. I guess when they pay only 10% market rate for court appointed attorneys, what can you really expect?

I do alot of appeals work so I have read a lot of trial transcripts and I've seen prosecutors get away with a lot of what I consider pretty serious violations that are then upheld as "harmless error" (which often they are) - it seems like this is seen as a license to just push it over the line because there is no penalty to a prosecutor for doing so and some judges seem reluctant to reign it in.

I guess in the grand scheme of things it doesn't matter much - I mean, alot of those defendants were clealry guilty as hell and so conviction was a foregone conclusion. Which makes it even more annoying to me that thse prosecutors went over the line because what was the point?

armagh444 said...

Would you be able to give an example (in hypothetical form of course, being as vague as you need to be to protect confidences) of the sort of abuse you have in mind? Just to make sure that, conceptually, we're on the same page.

Michael Bryan said...

As a defense attorney, I, too, have seen many cases of prosecutorial abuse. In fact, there are even some that I can talk about because they are public record. Here in Arizona, for instance we had a prosecutor named Ken Peasley in the Pima County Attorney's office (google for details) who was eventually disbarred due to some particularly egregious instances of misconduct that are really quite standard practice in less obvious degrees: withholding exculpatory evidence, manufacturing false evidence, improper influence of grand jurors and trial jurors, coaching testimony, unethical courtroom antics. Not at all the sort of 'harmless errors' that fail to get reversed (though many, many serious errors are shoved under the 'harmless error' rug).

I find generally that prosecutors are only as good as their leadership. Prosecutors have a tremendous amount of power in our legal system due to their broad charging discretion. If the appointed or elected state's attorney in a jurisdiction is bad, the office will be a nightmare to work with. If however, the buck stops on the desk of someone who takes their responsibility to do justice seriously, the whole office will generally be satisfying to work with. In other words, it is not the institution of prosecutor that is flawed, it only the officeholder that is to blame when prosecutors go bad.

DBB said...

I'll try and come up with a general list. The conduct I'm talking about also is only that which is apparent from the record - if there is any nefarious dealings as suggested by Michael, I wouldn't be able to tell from the record about that. But then egregious conduct at trial is bad enough as it is.