Monday, April 16, 2012

Praise and Blame

I have occasionally on this blog taken the opportunity to praise a prosecutor for exemplifying the role eloquently described by Justice Sutherland in Berger v. United States.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Or, as David Prater put it (see below), 
Prosecutors must be different than any other type of attorney.  We are not simply advocates, but are charged with a ministerial duty within the criminal justice system.  We are duty-bound to seek justice, period. That duty includes protecting the constitutional and substantive rights of criminal suspects and criminal defendants.  We must never abrogate that duty to the justice system we are privileged to serve.
So I've had nice things to say about Nicole Habersang and about Sheila Polk (to whom I hereby apologize for calling her Sharon a couple of times; I promise to go back and fix those entries one day soon).  And if I haven't yet gotten around to saying nice things about Dallas D.A. Craig Watkins for setting up and then actually providing resources and supporting his Conviction Integrity Unit (I just did a quick search of the archives; it seems I haven't), that's an oversight I'll be correcting soon.
Anyway, it's fitting that I should join a number of other blawggers in paying homage to David Prater of Oklahoma County, Oklahoma who not only talked the talk but walked the walk.  Fine words are easy. When he learned of a Brady violation by members of his staff, well, he did more than just say, "Gee, it won't happen again."  Here's the whole press release laying out the actions (yes, plural) he took to undo the harm and actually . . . . Aw hell.  Just read the thing.  It's not that long.
But if we're going to say nice things about Prater, and I just did (as have others, see, for instance, Balko and Bennett (who rightly notes that while what Prater did is "huge and unprecedented," he could have done even more) and Greenfield (who makes essentially the same point).
Equivalence demands that where there is praise for the men and women in the black hats who act with uncommon (at least in their profession) decency and integrity, so there should blame for the folks in the white hats who betray their clients.
I'm not talking about those who are incompetent, who act out of hubris and stupidity.  I'm talking about outright betrayal.  I'm talking about the Fish and David Martin and the Jefferson Parish Indigent Defender Board.  And now, I'm talking about the attorneys for Harry Bostick.
Bostick, a retired IRS investigator, is one of the guys pardoned by outgoing Mississippi Governor Haley Barbour.  His offense?  A DUI.
Rich Phillips at CNN gives some of the back story.
Barbour granted Bostick a full pardon in January for a felony drunken driving offense in March 2009. It was Bostick's third drunken driving arrest in a little more than year. The full pardon gave Bostick back the rights that were taken away as a felon, such as voting, but his two other DUI convictions remain on his record, according to the state attorney's office in Lafayette County.
Bostick was still going through a court-mandated drug rehab program when he applied for a pardon last summer. On September 30, the Mississippi Parole Board sent its review of Bostick's application to Barbour, recommending a full pardon in a 3-2 vote.
Except, see, on October 7 (which is just a week after September 30 but several months before the  January pardon, if you're trying to keep this straight)
Bostick was driving under the influence again, according to the Mississippi Highway Patrol. Charity Smith attempted to pull out onto a highway just outside Tupelo when Bostick's truck slammed into the side of her car.
Charity Smith was killed, and her older sister suffered serious injuries. Bostick was jailed for violating his probation from his previous DUI cases.
When he received the pardon in January, the convicted DUI felon still sat in an Oxford, Mississippi, jail cell, awaiting formal charges for his fourth drunken driving arrest.
Yeah, the cops say he wasn't responsible for the accident, which may or may not be true, but which certainly doesn't make Charity Smith's mom, Linda, feel any better.  Anyhow, it's not clear whether Barbour knew of Bostick's fourth DUI (or Charity's death) before issuing the pardon.  It is clear, though, that members of his staff knew.  One way they knew (and now I'm getting to the point of this tale), is that Bob Whitwell passed the word on.  Don't cut him loose, Whitwell said.  Which in itself wouldn't be interesting, except that Whitwell's law firm represented Bostick.
Phillips again.
Bostick is a friend. He was a very good agent and worked a lot of drug cases and money laundering cases for me," Whitwell told CNN. "He was an outstanding officer. I knew him as a friend."
Whitwell, an attorney in the firm that has represented Bostick in his DUI cases, said he called Hosemann, his old law school friend, to help with the pardon, even though the secretary of state's office has no official authority to issue pardons. After the October crash that killed Charity Smith, Whitwell reached out to Hosemann in an October 11 e-mail, asking him to back off on the pardon.
"You asked me if he was straight and I gave you my word yes. For this I give you my sincere apology. I had no idea he had messed up. Therefore. Hold up on helping him. All of us are in shock. Sorry," Whitwell wrote.
He signed the letter, "Your friend bob."
In the legal ethics biz (yes, Virginia, there are legal ethics), this is a no no.  A major conflict of interest.  You cannot (unless you're the Fish or David Martin or the Jefferson Parish Indigent Defender Board) turn on your client (your firm's client is yours for purposes of the ethics rules).  You can't, that is, fuck your clients.  That's the job of the cops and prosecutors and the courts.
Bostick may not have been acting as a member of the firm.  Doesn't matter.  He may have been sincere in trying to correct an error.  Doesn't matter.  He may have been genuinely distressed that he felt the need to betray his old friend.  Doesn't matter.
There's what you do in this business and what you don't.
What you don't is betray your client (or your firm's client).
It's the duty of loyalty, and it's basic.
Except to all those folks who don't get it. 

h/t Kindley

1 comment:

  1. yes, Virginia, there are legal ethics

    I think the ethics are enumerated in the fine print at the bottom of page 1021 - the footnote section, I believe that's called. It's in the chapter entitled "General Guidelines and Suggested Practices".

    Charity Smith attempted to pull out onto a highway...

    Not so. Charity Smith successfully pulled out onto a highway, right in front of Bostick. It's very likely Charity was tired of waiting for her turn to go-go-go and decided that Bostick would stop or slow down for her. He didn't, and as a result of Charity's suicidal driving style, Charity is now on the wrong side of the lawn and her passenger did some time in the hospital. The fault here lies with Charity and no other.

    What, you never had some silly bitch pull out in front of you? No harm, no foul - right? Wrong. Charity learned from her bad behavior and the lesson was that behaving badly paid off with a desired outcome - you got to go to the head of the line without waiting, and as a secret side bonus you got to screw someone over who probably deserved it. Charity isn't alone in this.

    I'll tell you one thing you nailed with all six shots in the bull - Bob Whitwell. Whitwell could kick himself all over the place about what happened, and if the governor confronted Whitwell, he could do some explaining. Whitwell could also fire Bostick as a client, denounce him as a friend and privately castigate him as a public menace to society who ought to be in prison for the next 25 years.

    Good job on the post, Jeff. Keep up the good work!