Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences. In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.
That's from then Chief Justice Tom Moyer's dissent in State v. Fears (1999). Fears was appealing his conviction and death sentence. It was another in a string of cases in which the Ohio Supremes recognized that prosecutors repeatedly engaged in misconduct and warned that one of these days they might do something about it. Moyer quoted a passage from Judge Jerome Frank's dissent in United States v. Antonelli Fireworks Co., Inc., though he deleted a bit including the choice reference to "The Walrus and the Carpenter." Here's the whole passage (except for a footnote I'm deleting).
This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, "Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of `disapproved' remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial." Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court — recalling the bitter tear shed by the Walrus as he ate the oysters — breeds a deplorably cynical attitude towards the judiciary.
Cathy Cook, arguing another death penalty case in the Ohio Supreme Court a week after Fears came out, quoted Moyer's words (though not Frank's, I don't think), and told the Justices,
You've got to make them lose to make them learn.
The court didn't make them lose. Cases since then demonstrate clearly that the prosecutors didn't learn.
It's a recurring problem: Prosecutors cheat. Court's say they're being bad boys and girls. Prosecutors cheat some more. Mostly it's not to convict people they think are innocent. Indeed, it's beyond the comprehension of most prosecutors that an innocent person can be charged with a crime.
As former Attorney-General Ed Meese said,
If a person is innocent of a crime, then he is not a suspect.
Prosecutors believe that. And with exceptions, they don't want to learn they're wrong. They particularly don't want to learn it after someone's been convicted. That's why they resist the DNA testing that might prove they made a mistake. That's why the continue to lie and stonewall and make up new theories to explain away the evidence they hid or the exonerating DNA tests.
As I say, there are exceptions. But that's the norm. There's bad guys and good guys and they're the good guys. Our clients, well, they wouldn't be our clients if they weren't bad guys.
But they're our clients, innocent unless and until proved guilty. And even after that they're our clients and we fight for them because that's what we do. We defend. We defend the ones who did it and the ones who didn't.
It's supposed to be different for the prosecutors. Their client isn't the victim of a criminal act (though many think it is). Their client is the body politic: The township or the city or the county or the state or the whole damn US of A. And that means that their client is the system of criminal justice and it means, more precisely, that their client is Justice (note the uppercase J) whatever the hell Justice is.
Back in 1935, writing in Berger v. United States, Justice Southerland explained the idea.
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.
Daniel S. Medwed, lawprof at the University of Utah and author of an important but flawed new book, Prosecution Complex: America's Race to Convict and Its Impact on the Innocent, says they're supposed to be "ministers of justice," and that's about right. But of course it's fantasy to imagine that they are.*
Medwed's basic idea is that it's the rare prosecutor who cheats voluntarily. Instead, they cheat and fabulate and stonewall because they don't really know what they're doing and they can't help themselves and because it's how things are. It's not because they can't make mistakes but because the prosecutorial culture prevents them from imagining that a mistake actually got made. It's difficult to admit you were wrong. It's especially hard when rewards are all for convictions and upholding them. And it's harder still when nobody but sleazebag criminal defense lawyers and their shithole clients says they might be wrong.
And yet, of course, they sometimes are. Despite Ed Meese's proclamation, even the most adamantine prosecutor knows that mistakes can happen. Factually innocent people can be charged with crimes. Factually innocent people can be convicted of crimes. And factually innocent people can find themselves needing to undo their convictions. Medwed, who sits on the Board of Directors of the Innocence Network and the Rocky Mountain Innocence Center, sees that as not just a problem, but as the problem. And much of the cause, he says, is that prosecutors simply fail in their efforts to be those ministers of justice. Which would rather beg the question, except that Medwed doesn't let it.
There are, after all, prosecutors who show a real interest in prevention and correction of error. There are (despite the impression I probably give too often here) individual prosecutors who strive to act with integrity and decency. And many who achieve it.
And yet.
Look, the system gets it wrong more often than it should. There are all sorts of reasons and no shortage of villains. But key is the prosecutor.
Why is that? Why is it that prosecutors charged with doing justice
instead do convictions? And what can be done to change that? The last
of those questions is at the heart of Medwed's book, but it can't be
answered without examining the first questions. So Medwed goes at prosecutor failures before trial, during trial, and after conviction. Three parts, each with three chapters.
The pre-trial problems he finds involve bringing charges against people who maybe didn't do it; not turning over evidence that throws doubt on the guilt of those they charge, and plea bargaining with those who might actually be innocent. The trial problems come from coaching witnesses and using snitches, relying on faux forensics, and various sorts of improper comments during closing arguments. The post-trial problems are resistance to pursuing claims of factual innocence, obstructionist responses to requests for DNA testing, and an unwillingness to believe and acknowledge actual proof of innocence.
So what else is new?
Actually, it's good stuff. It's not that you didn't know. At least, you knew if you were in the trenches as a criminal defense lawyer. And you knew if you were in the trenches as a victim of the prosecutorial mindsets that drive these things. And you knew, frankly, if you'd just been paying attention.
But too many don't know. And among those who don't are, far too often, the prosecutors themselves.
Here's the short version.
- Prosecutors fail to pursue innocence with vigor and twist and cheat to convict and bend and obstruct to uphold convictions because of institutional factors. They're prosecutors, for godssake. Their job is to lock up the bad guys. That's what they get rewarded for. That's where the high fives come from. That's what they're supposed to do. Besides, the accused are, all of them, bad guys.
- Prosecutors do what they do for political reasons. They run for office. They want big budgets. They hope for preferment. None of that comes from dismissing charges or the repeated public mea culpa.
- Prosecutors act, as do we all, for psychological reasons. There's tunnel vision. There's cognitive bias. There's the competitive drive of the litigator. There's the difficulty in admitting a mistake that sent someone to prison for years or to death.
Medwed's analysis of this is generally spot on. But that's just part of the set up. Because, again, he wants to stop it, to help prosecutors become the "ministers of justice" he thinks they want to be.
What seems safe to say is that most prosecutors aim to do justice, but only some hit that target consistently.
To that end he offers a series of suggestions, repeated regularly with slight variation in chapter after chapter.
- Prosecutors shouldn't charge people with crimes if they can offer an explanation of how it is that they're innocent.
- Prosecutors should provide full open discovery.
- Prosecutors shouldn't offer plea bargains except to the unquestionably guilty because they encourage innocent people to plead guilty and avoid the risk of greater punishment if they lose at trial.
- Prosecutors should stop rewarding convictions and affirmances and should begin rewarding efforts to find the innocent.
- Prosecutors should have committees make decisions rather than individuals who get too close to cases.
- Prosecutors should rigorously examine all their evidence and witnesses with an eye to assuring that they're reliable and accurate.
- The rules of legal ethics should be clearer and should require higher standards for prosecutors than they do now.
- Prosecutors should actually be sanctioned if they don't obey the new rules.
Change the culture, change the politics, avoid the psychological blocks. It's not that those aren't worthy ideas. It's that they haven't much real world resonance. He calls, he says, for incremental change.
The bulk of my proposed reforms embrace a "gradualist" or evolutionary approach to the prosecutorial function. I do not favor razing the institution of the American prosecutor and installing an entirely new structure in its stead; I prefer renovation to demolition. Lift the legal bar that prosecutors must meet in order to justify major decisions. Hone the rules of ethics and motivate disciplinary agencies to enforce them. Design internal review committees to improve decision making and counter cognitive bias.
Because they're all men and women of good will who just get sidetracked from their efforts to pursue justice.
Except they're not. Prosecutorial culture is the way it is because, for the most part, they want it that way. They don't zealously search their cases to see if they might be going after someone innocent because they honestly believe what the cops tell them. They do what they can to convict, including using jailhouse snitches, getting one defendant to roll on another, presenting forensic evidence they know is bullshit, and then fight tooth and nail to hide evidence of innocence because they want to nail our clients. They don't care about innocence because they agree with Ed Meese that our clients are never innocent. Even if they didn't do it.
And it's a fucking moral quest.
Not all of them. And not all the time. But most of them. Most of the time. Which when you get right down to it is why they became prosecutors in the first place.
I said Medwed's book was important, and it is. He does a terrific job identifying a problem, showing how it develops and proceeds, and making clear some of the reasons why it's close to intractable. Those are no small things, and they deserve a whole lot more analysis and discussion and awareness than they get.
And his recommendations are mostly sensible steps. But they're built on the naive belief that prosecutors should be and want to be pursuing innocence with the same energy and drive they put into pursuing guilt. And that both American society generally and the legal profession specifically really want that sort of prosecutor behavior.
I think not.
I'm older than Medwed. I've represented some factually innocent people. Sometimes they go home when we're done. Sometimes they go to prison. I've also had clients who ended up strapped to a table and murdered. Maybe there's a reason I'm more cynical than he.
But I'm also right.
Because you know, ultimately, Cathy Cook was right.
You've got to make them lose to make them learn.
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*It's also fantasy to imagine that doing justice is an identifiable task. I'm not going to reenter the thicket of arguing about what justice means here. For Medwed, it seems to mean doing everything possible to avoid charging or convicting factually innocent people of crimes - and ensuring that they are unconvicted if it should happen that they do get convicted.
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