Thursday, December 24, 2009


So one day we're having this major multi-blawgversation about what it means to be a criminal defense lawyer and just what it is that we do (see here and follow the links if you're determined to wade into that bog - or to review it). And then I'm reading the powerful words of Judge Cormac Carney dismissing major prosecutions because the government "intimidated and improperly influenced each" of the key defense witnesses (discussed here and here and here and here and lots of other places).

And then I was reading Arbitrary Justice: The Power of the American Prosecutor by Angela J. Davis which makes a powerful case for the claim that prosecutors need to be reined in to control both their formal misconduct and their technically proper but deeply problematic arbitrary decisions which often (and often subconsciously, she says) reveal racial and class bias. A significant part of what she discusses is why it is that all this arbitrariness and misconduct goes unchecked.

The courts don't act (Judge Carney aside) she tells us, because the Supreme Court told them that defendant's must prove not just egregious misconduct but also harm which often translates into proving actual innocence. And the Supreme Court has also foreclosed the possibility of suing prosecutors. (We can hope that the Court will at least loosen that rule when it decides Pottawattamie County v. McGhee in 2010.)

She suggests that we could hold prosecutorial miscreants accountable by voting the bastards out of office (though she acknowledges that won't work for federal prosecutors since they aren't elected). But she recognizes that people don't have enough information to realize just how seriously undeserving many of the prosecutors they elect are. More transparency would help, she says, which is surely true, though I think not much of a solution to anything.

[Frankly, I think she shows surprising naivete here for someone who spent 12 years as a public defender. My sense is that a comfortable majority of the electorate would be perfectly content (if not outright pleased) if they learned how frequently prosecutors violate ethical standards in the effort to convict the bad guys. And I suspect the electorate in general would mostly be comfortable with the ways their local prosecutors exercise their largely unreviewable discretion. But Davis was a PD in D.C., and maybe folks there are less inclined to think that locking up bad guys is the right thing to do, even if you have to cheat to do it and even if a few good guys get locked up along the way than in the places I've lived.]

Finally, she comes to the question of ethics complaints. She notes that they tend to be ineffective. She observes, rightly, that ethics charges are not often brought against prosecutors. Perhaps more tellingly (and relevantly, though she doesn't pursue the connection), prosecutors simply don't get sanctioned for misconduct even when it is charged.

Davis seems to think this is largely because the ethics rules lawyers are to obey aren't specific enough in targeting what prosecutors do wrong. Again, this strikes me as, if not entirely wrong, oddly naive. At least in the jurisdictions where I've practiced, prosecutorial misconduct - even serious prosecutorial misconduct - is at most winked at by the disciplinary bodies. They deny it or they provide gentle admonitions. Go now, and sin no more. There's no interest in punishing prosecutors.

But my real point, and where the subjects of prosecutorial misconduct and what criminal defense lawyers do come together, is somewhat different.

Here's one of the stories she tells, an example of a prosecutor abusing his power to bring charges.

One of her client's was arrested, charged with rape, and jailed to await indictment. Investigation revealed that the prosecutor would never be able to make a case against the client. The prosecutor stalled and stalled, keeping the client in jail for nine months (the maximum time allowed) before acknowledging that he wouldn't present the case to the grand jury and allowing the client to be released.
When I received notice that the case would not be indicted, I called the prosecutor. In a rare moment of candor, he said, "I know your client is guilty. At least he did nine months in jail." I was stunned. When this prosecutor was unable to prove my client's guilt legally, he took it upon himself to act as jury and judge -- single-handedly finding him guilty and "sentencing" him to nine months in jail.
Put aside questions of her shock that a prosecutor would do such a thing. In the trenches where I operate, that wouldn't be much of a surprise. The more interesting issue is what she did - or more precisely didn't do. She recognized that there was no redress through the courts.
The only apparent alternative appeared to be a referral to the local bar counsel of a claim of unethical behavior--an option that probably would have been futile and definitely would have caused difficutly for future clients that I represented. Davis [the client] had his freedom and was not interested in supporting any action against the prosecutor. I decided to take no action.
She elaborates slightly in an endnote.
If I had referred the prosecutor to bar counsel, I would have become persona non grata to all of the prosecutors in that office, making it difficult for me to effectively negotiate with them in my representation of other clients.
Probably so.

And here's the question: So what?

There is, in Ohio, a statute addressing what are known as "allied offenses."
Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
The idea is that a single criminal act may be prosecuted in different ways, but if it's one crime it shouldn't get more than one punishment. I convinced an appellate court that Giano Rance should benefit from the allied offenses statute, that the two first degree felonies he'd been convicted of (and for each of which he'd received maximum consecutive sentences of from 10-25 years in prison) were allied offenses under Ohio law. It was the rare case where a the court followed its own, frankly obscure, precedent to a place it had never intended and that, frankly, made little sense. A great win for a lawyer, a major break for the client, a silly and frankly wrongheaded decision.

The state asked the Ohio Supreme Court to hear the case, which it did. The court reversed the court of appeals - no surprise there, though tough on Giano and not happy for me as his lawyer and as the guy who'd made some good law only to watch it go away. The court could easily have stopped with that. It could easily have said
The court of appeals was stupid to buy Gamso's argument. Of course those aren't allied offenses.
Instead, having decided to address the allied offenses statute, it took the opportunity to eviscerate it, overruling several of its own prior decisions. From doing good work, I made bad law.

Every lawyer who spends much time in the appellate courts has one of those cases. You fight for the client, lose, and make bad law. We live with those albatrosses. And sometimes we know it's going to happen.

Sometimes you know it's likely to happen. You can see the train wreck coming. You don't want to go there because of the risk. But you're representing the client. And it might help and the client wants you to go there. Do you do it? Do you risk making bad law for future clients - and for the entire system - just because it's the right thing for this client? It's not even a close call. You do.

Because as it's not about us, so it's not about next week or next year or the next client who walks through the door. In this business, it's always and ever about this client.

Angela Davis didn't have quite that crisis. Her client wouldn't have benefited from an ethics complaint against the prosecutor - not even if the complaint succeeded. She wasn't forced to look down the path and see that working for current client A might screw things up for future clients R, S, T, U, and V. Not that time. But the chance is always there.

General Rule: It's better not to piss of judges and prosecutors. It can be bad for this case and is likely to be bad for lots of other people down the road.

Exception: Sometimes, not always but sometimes, regardless of the long-term consequences for other cases, you have to piss of the judge or the prosecutor.

The exception is one key to the work of a criminal defense lawyer.

NOTE: I wonder if Davis' naivete is a function of having left the trenches for the Academy? Her's is a valuable book, but a shade more real-world recognition would help, would leave those of us who are in the trenches shaking our heads at her a bit less.

There's a paperback edition of Davis' book with an Afterword covering "the Duke Lacrosse case, the Jena Six cases, the Genarlow Wilson case, and Alberto Gonzales U. S. attorney scandal." The Duke Lacrosse case (and its aftermath) and the entire Alberto Gonzales fiasco are exactly the sorts of things she suggests in her book simply do not happen. Certainly, they were newsworthy because unusual. In any event, I have the hardcover (note to FCC, I bought it) and so haven't read the Afterword and can't comment on whether those discussions balance out some of the naivete that I saw elsewhere in the book.

No comments:

Post a Comment