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> | One Big Snowball War | | | -- By CeciliaWang - 22 Feb 2010 | |
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> | The adversarial method of our criminal courts may have many benefits that make the system more efficient and fair than impartial investigators – possibly because we simply are not so naïve to believe that thousands upon thousands of investigators and judges can be trusted to remain impartial and uncorrupted. For one, by forcing lawyers to take sides, we eliminate the whole problem of the moral issue. | | | The Question that Sparked this Paper | |
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< | An interviewer posed to me this hypothetical: "How will you handle your work in a case you believe is wrongfully prosecuted? For example, a domestic violence victim who struck back at her abuser."
I cannot recall my answer as well as the question, though I remember declaring my faith in the integrity of my assistant district attorneys, in the high standard of evidence and persuasion held by the criminal justice system, and the right of all to representation, knowing that the interviewer herself as good as admitted that sometimes they try to make felons and prisoners of people who do not deserve to be treated so harshly. | >
> | The Original Question (Paraphrased)
"If your supervisor needed you to work on a case against a defendant whose [moral?] guilt you doubt."
The obvious professional answer, now that I see how county prosecutors handle their cases, is: "Then I will do as I am told, which would be to call witnesses and investigate the case in hopes of finding evidence for the prosecution, and then present the prosecutor with the exculpatory evidence I find and ask for the case to be dismissed for insufficiency."
I cannot see an answer beyond that. If lack of guilt is obvious, then I have to ask that the charges be dismissed, and offer to the assistant district attorney the exculpatory evidence which she must also turn over to the defense attorney under Brady v. Maryland. If I cannot prove with the evidence I uncover reasonable doubt as to a potential defendant's guilt, it seems only fair to the complainant that we present the evidence in either a plea agreement that accurately reflects our view of the case or in trial. Prosecutors are not judges and juries; the task of investigating and trying to prove an assigned case is as monotonous as any office job. It is what one does, and any strong daily awareness the moral and personal consequences of such routine actions eroded by their very routineness. This is the dangerous position of unappreciated power that a mere three years of law school allows. I really hope Professional Responsibility is a class powerful and persuasive enough to leave a mark.
Unintentional Cruelties Caused by Normal and Common Imperfections
Most people, and therefore most prosecutors, are not evil. Great harm can be caused though, when one, numbed by repetition and quantity of work, becomes lazy or thoughtless or stubborn, as everyone can easily be at times. They will search for crimes when perhaps none were intended for no better reason than a case file was already prepared. ADA Anna ignored my suggestion that a man's criminal trespass, into the apartment of a woman who possessed an order of protection against him, was an honest mistake. Defense counsel filed a motion stating he entered into the apartment to pick up their son. The son told me he had no idea why his father went to the apartment, but during a second conversation remembered that his father called him later to ask him where he was, said he expected the son to be at the apartment, and then picked him up from a park. If he is a perfectly rational man, he should have known to not risk being charged with a felony (elevated due to the OP) and not entered her apartment without permission. The poor defendant will be kept in legal limbo because the obvious antagonism between attorneys on both sides, underneath the veneer of congeniality during courtroom breaks, makes conceding a good point exceedingly hard.
They Don’t Think They’re Gods; They Just Don’t Want to Lose the Snowball Fight
“When defense counsel gets the Complainant to say she doesn’t want to go forward in the case, that she hit herself in the head with a phone three times, accidentally, he thinks he just made a big snowball that will knock down our cases,” my supervisor once said. “To overcome that big snowball, we must prepare twenty snowballs of our own.” Those snowballs of evidence include: 911 tapes that recorded a clearly terrified voice, photographs, the responding police officer’s impression of the situation, medical records, domestic incidence reports.
The county that refuses to dismiss cases even when the victim comes out in support of the defendant of course as the lowest dismissal rate in the state (13%). The county also boasts the lowest domestic violence homicide rate. While that serves as a viable reason for persisting with prosecution without a self-identified victim, the snowball analogy suggests cases are pursued for the sake winning a challenge.
“Gentle Pressure Relentlessly Applied”
“Kobayashi Maru: It’s Not Cheating If You Want to Win Against Evil” | | | | |
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< | Edit: My response was not a lie. Such an insignificant amounts of my time have been occupied with any substantial thoughts, because of the comfort of idleness, because it is so easy to forget, my default reaction was that if a person of authority decrees something must be done, there must be a morally justified, socially beneficial reason. A little bit of reflection would show that's not true. In the first two parts of this paper I tried to present the reasons for my instinctive trust in authority, and in the final part, I became distracted by the concept of how dangerous status seeking can be when pursued unscrupulously by young God-playing ADAs. | | | | |
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< | The Superhero Ideal | | | | |
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< | As a kid, I did not get to watch a much American superhero cartoons as I might have liked because of Chinese school on Saturday mornings, but I did love the superheroes enough for the idea that the world is made up of heroes and villains to stick. The world of superheroes the evidence is always convincing and heroes never have to struggle to convict against a high standard of proof or have to defend their evidence gathering methods and warn villains against self-crimination. The confessions they obtain are always admissible, and in the superhero world we in Southern California would not have been bewildered by the acquittal of O.J. Simpson.
The "villain escapes" mode of injustice, in comparison, is far more prevalent in real life. Newspapers probably publish as many stories about successful convictions as about bewildering acquittals or prosecutorial laziness.
Are you honestly
suggesting that every acquittal or successful appeal is an instance
of injustice? If that's not what you're suggesting, what did these
two sentences mean?
I believe that is because most citizens (the comfortable, middle class ones with political clout, I should specify) trust and rely on, because we want to and need to, our criminal justice system, so when a murderer is put away, a heinous criminal punished and victims vindicated we take the result for granted as the due course of nature.
I believe in justice,
but I don't think everyone convicted of murder is remotely guilty,
and I don't think any conviction "vindicates" a victim. So could we
go a little more closely over those steps?
Blame Politics?
Fear is justified.
I can understand why we give law enforcement officials, and prosecutors especially, so much discretion and power. Few are those who have not suffered an unpunished crime or fear of law enforcement's failure to capture neighborhood criminals. My family's car windows have been smashed while parked during daylight hours in downtown Santa Monica. I know of students who have been mugged and worse by standard-description teenagers who have never been charged for those particular crimes, and I know of a group of youths who were caught but released because the victim just did not want to deal with the process and the fear of retaliation. Minor crimes, sure. Even when objectively we are relatively safe it is easy to feel afraid; all it takes is one news account of a serial rapist or a brutal beating for voters in search of security to vote for the tough on crime politician who will enact some Three Strikes Law equivalent.
You are writing about
life in a city that is as safe as it has been in two generations, and
is beginning to approach the absolutely atypical period of public
order from 1935 to 1960, which was the most remarkably relatively
crimeless period in the city's entire history. Yet you are writing
with the sort of concentrated relentless about the idea of the
existence of crime that would have seemed familiar to beleaguered
Manhattanites in 1991. Crime rates have been falling for a
generation, and despite the current hard economic times, which should
be generating a great deal of additional public disorder given
historical models, we are living in great civic tranquility. Some
windows have been broken in Santa Monica, and some aggressive and
disturbed teenagers (whom we used to call juvenile delinquents) have
stolen someone's wallet? No, fear is not justified. A good subject
for an essay might be the exploration of the causes of your
fear.
The solution to fear.
Citizens can be protected by a strong, visible and alert police force; by a healthy social, educational and economic structure; or by locking away all the dangerous elements.
Surely you've some
awareness of the sound of this talk of locking away dangerous
elements? So we've got two million people in jail, which is a higher
proportion of our population than any civilized nation on earth, and
there are more young black men in prison in the United States than
there are in college, and you think we're just locking up "dangerous
elements"? Nor do either you or I see any sign that the size of the
dangerous element has been in any way reduced, even though we are
already imprisoning millions of people and are spending trillions
of dollars every generation on prison construction and operation. So
perhaps you can tell me just what evidence you have to support the
very dubious statement above?
The last is the easiest, so that is what has been done. Sentences increased for crimes that are easily proved and likely linked to other crimes (such as drug laws), and legislatures have broadened the reach of criminal statutes.
With what positive
result?
Law students becoming law enforcers, integrity and sense of justice
Many will face the same pressures of competition and prestige
Success as defined in the law school can be dangerous when carried past graduation. Law school encourages pursuit of status symbols. What drives law students towards the pursuit of the best law firms, what drives them towards the pursuit of the most prestigious U.S. and district attorney offices to practice in, will push lawyers towards the pursuit of whatever status symbols prosecutors have among themselves: highest conviction rates, the highest sentences; the most publicized and challenging cases. I was shocked to see how brief are the descriptions of crimes in the New York Penal Law. The vagueness of statutes allows for creative, expansive application. An ambitious lawyer can do so much injustice, by choosing to charge a felony instead of a misdemeanor, by plea bargaining a weak case, as the result of overzealous exercise of decent, law-abiding citizens' right to security.
How do we discuss
prosecutorial discretion until we clean up the harm done by implying
that every acquittal is an injustice?
"Those young ADAs, they think they are God"
An attorney at the Legal Aid Society made that accusation when he introduced interns to the organization's work.
It's not an accusation.
It's an observation. I know exactly what he
means.
The problem more likely lies in that most young ADAs know they are not God, not in their personal and professional lives, yet they still have tremendous power over a certain class of potential defendants, easily abused. Law school is a disempowering experience, or maybe just first year, with severely limited freedom of choice and anonymized individuals, set towards one competitive goal like racing dogs. At the same time, because of the impossibility of specialization at this level of learning, I find myself easily replaceable. Even work for voluntary pro bono projects showcase how useless a first year student is; the work usually involves helping someone fill out government forms and presenting an obvious case against an absent adversary. It must be exhilarating to be a first-year attorney with the power to charge and prosecute and to win. Simply win.
What to do?
"Prosecutors are already supervised; they are in many ways constrained."
Edit: That's what I believed must be; but then, if plagiarized and even fabricated news stories can slip through the five levels of editing at a major publication, how I seriously believe that there is sufficient oversight and sufficiently principled supervision of young lawyers who were initially attracted to such positions for the independence and power?
What to do about this freedom they in the exercise of their power over the indigent, over people who for various reasons walked into the criminal justice web? Unlike superheroes, the Harvey Dents of real life are prone to mistake, prone to malice, prone to ignorantly causing injustice while in the pursuit of apparent professional success. It is a power only they can control and refrain from abusing.
This "power to charge
and prosecute and to win" is the power to damage or destroy many
innocent lives in pursuit of the "guilty." Many of the young people
who decide that they want this power tend to conceal from themselves,
as one might expect them to do, what it really is. They tend to
behave as though at the moment of the crime the universe shrinks
until it contains only the state, the criminal and the victim. Then
they set themselves to making sure that the accounts balance out in
this absurdly misshapen little universe, often without the slightest
empathic awareness of all the others whom they injure in the process.
The offender's family, for example, are merely people he should
have taken better care of, no part of "the People" on behalf of whom
the prosecutor is doing her job. And so on.
It is this
self-righteous refusal to understand the presence of others who must
be cared for, and the obscene simplicity of the idiotic belief in the
value of punishment, that the Legal Aid lawyer was remarking. It's
the occupational hazard of young prosecutors. After a while, most of
them lose their lust for judgment. A few become judges. The rest
have a chance to become valuable public servants, or else they become
something far more dangerous to the public good.
But what about the
question that sparked the essay? You never do go back to give the
right answer; it seems to me that to address the question and give
the professionally appropriate answer is probably the most useful
thing you could have done in order to edit scrupulously this present
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