The three cultures that shape prosecutors

[Balog]

http://reason.com/archives/2016/06/23/confessions-of-an-ex-prosecutor

I've often thought that the rampant prosecutorial abuse is an equal or worse problem to the rampant police misconduct.

Take search warrants, for example. Under most circumstances, the Fourth Amendment requires police to get a warrant before they make forcible entry to your home search it. May police officers lie to a magistrate to get that warrant, or deliberately omit information that contradicts the evidence they offer? No, says the Supreme Court—that would violate your rights. But the violation only has a remedy if the lie is material—that is, if the warrant application, stripped of the lie or supplemented with the deceitfully omitted information, would no longer be enough to support probable cause. If you identify a lie that's immaterial, you're not even entitled to a hearing on whether it's a lie in the first place.

So when a defendant discovers that law enforcement agents have lied to get a warrant, a prosecutor has every incentive to argue that the lie didn't matter, that the evidence was strong enough without it to get the warrant. The prosecutor will be making this argument in the context of a search that did turn up incriminating evidence (the defendant wouldn't be making the argument if it didn't), which tends to bias judges towards upholding searches. After all, the judge thinks—wasn't the cop's suspicion proved right? Moreover, probable cause—the proof necessary to support a warrant—is a very relaxed and inherently subjective standard, requiring only a "fair probability" that evidence will be found. The practical effect is that law enforcement can lie in warrant applications with relative impunity, and it's a prosecutorial duty to think of ways to explain how those lies are irrelevant.

Lawyers shape arguments, and arguments inevitably shape lawyers. A persistent professional obligation to argue that violations of constitutional rights don't matter can't help but influence how prosecutors look at rights, and treat them.

[MechAg94]

So courts/lawmakers allowed a loophole and lawyers are exploiting it to win cases.  Does this surprise anyone?

I think it goes along with something I notice:  the average person seems very reluctant to make a unilateral decision that draws a hard line on anything.  They always want to allow exceptions even when it is a bad thing to do.  They often have trouble seeing through the BS arguments and getting to the core issues.  On the other side of the coin, they seem to love to delve into the gray area of endless exceptions. 

[AJ Dual]

Interesting article, thanks.

And a perfect example of "institutional evil" as an emergent property. Where bad things come out of institutions even though the vast majority of people aren't going to work every day with an evil chuckle of "Who can I screw today?" etc. but the abuse happens anyway. From "good" people "just doing their jobs".

[roo_ster]

Interesting article, thanks.

And a perfect example of "institutional evil" as an emergent property. Where bad things come out of institutions even though the vast majority of people aren't going to work every day with an evil chuckle of "Who can I screw today?" etc. but the abuse happens anyway. From "good" people "just doing their jobs".

"Paging Hannah Arendt...Hannah Arendt to the white courtesy phone..."

[Ned Hamford]

In law school I had a law enforcement investigation group speak. They openly and directly asserted it as a moral and professional duty to 'push' the boundary of law and pragmatic oversight (its enforcement). Cause hey, they are the good guys trying to protect everyone and we should show some gratitude for it.

[Perd Hapley]

I don't understand why he didn't want to prosecute the bank robber as a bank robber. The guy robbed a bank. So...?

[AJ Dual]

I don't understand why he didn't want to prosecute the bank robber as a bank robber. The guy robbed a bank. So...?

Because premeditation and intent (usually) matter in criminal justice.

[T.O.M.]

Prosecutors aren't evaluated on doing the right thing.  They are evaluated on their conviction percentage.  How many cases ended in conviction seems to be all that matters.  And, when your salary, your future promotions, and even your continuing in the job depends on winning, some choose to do what they need to do to win.  This goes from the new assistant prosecutors handling traffic court through the guy elected as the head of the office.  You don't see adds talking about how the prosecutor protected the rights of a criminal.  You only see adds talking about wins.  Sad truth. 

Another root of this evil is the rampant plea bargaining that goes on throughout the system.  Prosecutors over charge cases.  Defense lawyers refuse guilty pleas in an ongoing effort to get an even better deal.  This makes the problems worse by not exposing all of the wrongdoing.  Instead of the story coming out, the case gets plead out, and the problem just fades away.  If prosecutors had to go forward on what they charged, they would be much more picky about filing charges.  Cases with evidence issues/Constitutional problems would get no billed because the prosecutor would be facing a situation with no plea bargain to use as an escape from the problem.  I know I hear all too often prosecutors file a charge with no real hope of prevailing at trial, but rather to use as a starting point in negotiations.

I know.  I sound like one of the old guys.  It was better back in my day.  But it was.  There was a no plea bargaining policy when I was a prosecutor.  Adopted by the elected prosecutor and enforced by the judges.  There was also an open file discovery policy.  Elected prosecutor didn't want his people wasting time fighting about what should and should not be turned over.  You just turned everything over.  Made life a lot easier.  And honest.

[Perd Hapley]

Because premeditation and intent (usually) matter in criminal justice.

Fine, but he didn't unintentionally threaten to bomb the place, and he did rob the bank. Didn't he break the same law as any other bank robber?

[BlueStarLizzard]

So, say they lied to get a warrant and didn't find anything (because you didn't do anything) Is there legal recourse for that? I assume a civil suit but does it work?

Because I'd be pretty ticked off if my house got searched because someone lied about me doing something.

[T.O.M.]

So, say they lied to get a warrant and didn't find anything (because you didn't do anything) Is there legal recourse for that? I assume a civil suit but does it work?

Because I'd be pretty ticked off if my house got searched because someone lied about me doing something.

I'm not 100% sure, but I think there would be a problem for you unless you actually suffered some type of loss.  Now, I'm sure a creative lawyer would be able to argue about the embarrassment of having all of the cops at your home, and the damages to your reputation.  But it's going to cost you a fair chunk to pay for a lawyer to win anything back.

[BlueStarLizzard]

I'm not 100% sure, but I think there would be a problem for you unless you actually suffered some type of loss.  Now, I'm sure a creative lawyer would be able to argue about the embarrassment of having all of the cops at your home, and the damages to your reputation.  But it's going to cost you a fair chunk to pay for a lawyer to win anything back.

So basically, unless you have oodles of cash, you're screwed over despite they fact that they've infringed on your rights?

Nice. Real nice.

[RoadKingLarry]

Again. I am constantly amazed at the fact that these types of abuses aren't appropriately "rectified" in the wee hours of the morning, by torchlight.

[T.O.M.]

So basically, unless you have oodles of cash, you're screwed over despite they fact that they've infringed on your rights?

Nice. Real nice.

Now, if I was your attorney, we'd make a big deal with the press.  These days, a story like this would play really well.  Then we'd file a suit for violating your civil rights, intentional inflection of emotional distress, and a few other tort claims thrown in for good measure.  We'd set damages in the amount of $10 million.  Send a nice letter seeking a meeting to discuss case.  Offer to settle for $7.5.  They offer $2.5 of that, if we agree to a gag order.  We dicker back and forth to $5 million.  You walk away with $2.5 million tax free, and I retire with around $1.5 million in the bank after taxes.

[T.O.M.]

Again. I am constantly amazed at the fact that these types of abuses aren't appropriately "rectified" in the wee hours of the morning, by torchlight.

Honestly, I think it's in large part due to the fact that the majority of these situations never see the light of day.  Defense raises the issue.  The case gets plead out to a lesser charge.  Done.  No one sees the wrongdoing.

[Jocassee]

Honestly, I think it's in large part due to the fact that the majority of these situations never see the light of day.  Defense raises the issue.  The case gets plead out to a lesser charge.  Done.  No one sees the wrongdoing.

\

In my case if they'd offer me a plea bargain I'd have told them to go to hell. Fortunately the Solicitor had a clue (and the ass't solicitor).

The reality is that most people who go to court, guilty as charged or not, are guilty of *some* infraction that could put them in jail, keep them from paying child support, or keep them from their day job selling drugs. The problem IMO is not just plea bargains substituting as actual law enforcement, but too many laws. This in turn contributes to really bad guys being on the street after pleading (or at least sooner, possibly, than they otherwise would be) because the system is used to settling for those pleas.

[Perd Hapley]

Now, if I was your attorney, we'd make a big deal with the press.  These days, a story like this would play really well.  Then we'd file a suit for violating your civil rights, intentional inflection of emotional distress, and a few other tort claims thrown in for good measure.  We'd set damages in the amount of $10 million.  Send a nice letter seeking a meeting to discuss case.  Offer to settle for $7.5.  They offer $2.5 of that, if we agree to a gag order.  We dicker back and forth to $5 million.  You walk away with $2.5 million tax free, and I retire with around $1.5 million in the bank after taxes.

For 2.5 million, I'll move to Ohio, and go through some legal proceedings. Just tell me which jurisdiction I need to move to, where you have your connections.

[T.O.M.]

\

In my case if they'd offer me a plea bargain I'd have told them to go to hell. Fortunately the Solicitor had a clue (and the ass't solicitor).

The reality is that most people who go to court, guilty as charged or not, are guilty of *some* infraction that could put them in jail, keep them from paying child support, or keep them from their day job selling drugs. The problem IMO is not just plea bargains substituting as actual law enforcement, but too many laws. This in turn contributes to really bad guys being on the street after pleading (or at least sooner, possibly, than they otherwise would be) because the system is used to settling for those pleas.

Early in my career,  I was taught this saying by a prominent defense attorney...  They are all guilty of something,  just maybe not what they are charged with this time.

[AJ Dual]

Seems similar to what happens with the police. Besides minor traffic infractions, they tend to interact with "regular law-abiding people" infrequently other than as victims or the reporting party.