It shouldn’t be a difficult concept to grasp, but history tells us it is: idealism unmoored to human nature and reality lead to disaster with depressing consistency. Thus “ethical” plans and motives that rely on fantastic and contrived versions of how the world might works under ideal circumstances are in truth not ethical at all. They are incompetent. They are irresponsible.
And thus we have the current fiasco in San Francisco, where the progressive voters left their hearts while their brains AWOL. The Martian leader of the invasion in “Plan Nine From Outer Space” has it right. Meet Chesa Boudin, the City on the Bay’s visionary District Attorney, elected in 2019.
Boudin had, it is far to say, no qualifications for the job of the head prosecutor of a major U.S. city with a growing crime problem. He had never prosecuted a case. But then he didn’t think most cases should be prosecuted. He dreamed of something kinder, gentler, that didn’t require anything so crass and mean as “punishment.” His experience with America’s judicial system showed him that there had to be a better way, as Robert Redford’s clueless idealist in “The Candidate” kept saying. He is “the son of jailed Sixties radicals,” and his kind and caring parents are the inspiration for his campaign against what civilizations have known for eons, but America’s progressives have chosen to forget: bad people abound, and if society doesn’t stop them, they will stop society.
In my value system, and one I am proud to say has been consistent on this issue all my life, Chesa Boudin’s parents, his role models, were bad people. They were members of the Weather Underground, a domestic terrorist organization that bombed banks and government buildings, including the US Capitol. They wanted to bring “The Man” down, man. The Weathermen were too mild for Mom and Dad, so they formed the May 19th Communist Organization, more violent and anti-American still. In 1981, the Boudins took part in the armed robbery of a bank truck. A security guard and two policemen were killed, and Chesa’s parents were convicted of felony murder. At the trial, they explained that the stolen $1.5 million was needed to fund the creation of a black nation-state in the American south. Good plan!
Usually, when Ethics Alarms headlines California’s lawmakers, it is because they have done something irresponsible, like in this post, this one, and my personal favorite, this one, in which Governor Jerry Brown signed a minimum wage law that he admitted might not make economic sense, because it was consistent with partisan fantasies.
But a blind pig might find a truffle, every dog has its day, and even a stopped clock is right occasionally. California just passed a desperately needed law that no other state has had the courage to pass. Its purpose: take serious measures to stop prosecutorial misconduct that sends innocent people to jail, a problem that is rampant everywhere in the U.S., but particularly bad in the Golden State.
Brown just signed into law a new statute making it a felony for prosecutors to alter or intentionally withhold evidence that could be used to exonerate defendants. Violators could be sentenced to up to three years in prison. That’s not nearly enough punishment when the crime often robs innocent citizens of decades of their lives, but it sends an important, and one hopes an effective, warning…with teeth. Continue reading →
Casual Friday was always a blight on the professional workplace landscape,and, predictably, it has come to this.
There is a cultural battle going on in San Antonio, Texas, where in the 187th District Court, District Judge Steven Hilbig announced that he would not allow prosecutors in his courtroom if they were dressed like a local version of Joe Pesci’s Vinnie in “My Cousin Vinnie,” garbed in jeans and guayaberas rather than Vinnie’s leather jacket and leather pants. This wouldn’t be a problem for any sane DA’s office, since almost everywhere else no self-respecting (judge-respecting, court-respecting, law-respecting, respect-respecting…) lawyer would dream of appearing in the halls of justice dressed like an Acapulco tourist, or Cousin Vinnie, for that matter. It is a problem in Bexar County, however, because there District Attorney Nico LaHood thinks that local tradition trumps the legitimate needs of the justice system.
It is Fiesta time, you see, in Bexar county, a ten-day celebration that migrated legally from Mexico to parts of Texas, and previous judges foolishly allowed it to be recognized in their courthouses by permitting prosecutors to “dress down.” The rough, and equally stupid, equivalent farther from the border would be allowing prosecutors to dress like elves during the Christmas shopping season or Minnie Mouse on Halloween.
Judge Hilbig, an adult, finally decided to put a stop to this nonsense by declaring, as did Judge Fred Gwynne, old Herman Munster himself in “My Cousin Vinnie,” that no lawyer was going to make a mockery of justice in his courtroom by setting foot in it dressed unprofessionally.
The celebration here of Dallas DA Craig Watkins’ installment of an open file policy to ensure that crucial evidence that might exonerate a criminal defendant doesn’t get “inadvertently” left out of the material shared with defense counsel prompted this comment from one of the Ethics Alarms resident Marine vet, THE Bill:
“I’ve always wondered why the civilian courts haven’t adopted the military practice of having both the prosecutor and the defense council in the same office under the same command as they do in JAG. It would seem that this would eliminate the US versus THEM mindset.”
“It’s because of loyalty and trust, Bill. The adversarial relationship and the appearance of such assures the accused that the two lawyers aren’t colluding against the defendant, and attorney-client confidentiality is surely at risk if there is not physical distance. That’s why in law firms a lawyer with a client who might be adverse to another lawyer’s client in the same firm has to be screened from substantive contact with the other lawyer.”
(I will note here that the last section about screening is an over-simplification of a very complex and confusing issue, as when and if screening is permitted varies state to state, and in many cases still isn’t enough to deal with an unwaivable conflict of interest.)
texagg04 then added the following discussion of the cultural differences between the military and civilian America, and how this informs the differences between the ways the respective systems deal with criminal prosecutions.
This is an appropriate place to salute tex, who is among the most prolific, serious and vital Ethics Alarms commentators. As his comments are often in an advocacy or adversarial mode rather than an expository one, his percentage of officially recognize commentary excellence is less than it should be considering the consistent quality and frequency of his participation here. He has long made Ethics Alarms better and sharper, if perhaps scarier for first time swimmers in these waters, since thanks to tex (and others), the tide is swift and merciless.
I hope he realizes how much I value and appreciate his thoughtful and vigorous contributions.
There is a presumption given the weight of military Commissions combined with the added weight of the Oaths of Office, that barring any obvious corruption, the officers in charge are not corrupted. Whereas in the civilian world, the presumption that so much burden lies on the state and the accused’s innocence until proven guilty, that even a hint of amiability between defense and prosecution is enough to worry about corruption. Continue reading →
Craig Watkins, a D.A. who understands his ethical priorities.
In Law School, I had the honor of being instructed in the superb Georgetown Law Center Criminal Justice Clinic, by far the single best course of any kind I participated in at any level of my formal education. Our mentor in prosecutor ethics was Seymour Glanzer, the man who, as an Assistant U.S. Attorney, cut the deal with Nixon’s White House Counsel John Dean that cracked open the Watergate scandal.
Sy had one mantra he repeated to the clinic students often, trying the beat it into our heads forever: the prosecutor must be the center of justice and ethics for the criminal system. Defense attorneys have to defend the accused whether they are guilty or not, but prosecutors are charged with achieving justice, not convictions. “If you don’t have sufficient legal and reliable evidence to convict a defendant of a crime, or have any doubts about that client’s guilt, drop the case,” he told us.
His principles do not hold sway among many, perhaps even most prosecutors, to the shame of the criminal justice system. Too many see their duty as convicting as many accused as possible, putting the law-abiding public at ease by closing cases and filling prisons. Over-zealousness, sometimes to the extremes of withholding exculpatory evidence from defense attorneys while placing questionable eye-witnesses and unreliable experts on the stand under oath, is rampant in district attorney offices across the country.
The worst of the worst may have been Dallas. Vanessa Potkin, chief counsel of The Innocence Project at Cardozo Law School, argues that “no other county in the country beats Dallas. It’s a county that beats out most states in the country.”
It’s an indication of a system that needs reform, she says, with “staggering numbers of the innocent put in prison.” That is why the recent steps taken by new Dallas District Attorney Craig Watkins are so important, and so necessary. Continue reading →
And all this time I believed that TNT reality star Kelly Siegler was a real star prosecutor who had actually convicted guilty people while observing the law and professional ethics.
That was the sound of my brains exploding through the top of my skull, this time because they deserved to. I never learn.
Or is the state of prosecutorial ethics in the United States so wretched that Kelly Siegler is the best ex-prosecutor that TNT could find?
I’ll stick my neck out and say, “no.” I say that even though the state of prosecutorial ethics is pretty terrible. Kelly Siegler left her job as a Harris County, Texas district attorney in 2008 after successfully prosecuting 68 murder trials. In 2013, TNT signed her up to star in a reality show called“Cold Justice,” now in its third season on the cable network.
Good title! A state-court judge recommended a new trial for a Texas inmate named David Temple, prosecuted by Siegler in 2007 for allegedly killing his pregnant wife. He was convicted, but the court says the “legendary prosecutor” illegally withheld critical exculpatory evidence. Wrote Judge Larry Gist in his opinion calling for a re-trial: “Of enormous significance was Siegler’s testimony at the habeas hearing that apparently favorable evidence did not need to be disclosed if the state did not believe it was true.” Continue reading →
The DA explains why he’s glad the law was broken. Wait…WHAT?
Prosecutorial discretion is a critical aspect of the prosecutorial function. There are many good reasons for a prosecutor to charge an individual with a crime in a particular case, and among the factors a prosecutor may legitimately consider in making this decision are, according to the American Bar Association’s ethical guidelines:
whether there is evidence of the existence of criminal conduct;
the nature and seriousness of the problem or alleged offense, including the risk or degree of harm from ongoing criminal conduct;
a history of prior violations of the same or similar laws and whether those violations have previously been addressed through law enforcement or other means;
the motive, interest, bias or other improper factors that may influence those seeking to initiate or cause the initiation of a criminal investigation;
the need for, and expected impact of, criminal enforcement to punish blameworthy behavior; provide specific and/or general deterrence;
provide protection to the community; reinforce norms embodied in the criminal law; prevent unauthorized private action to enforce the law;
preserve the credibility of the criminal justice system; and other legitimate public interests.
whether the costs and benefits of the investigation and of particular investigative tools and techniques are justified in consideration of, among other things, the nature of the criminal activity as well as the impact of conducting the investigation on other enforcement priorities and resources
the collateral effects of the investigation on witnesses, subjects, targets and non-culpable third parties, including financial damage and harm to reputation
the probability of obtaining sufficient evidence for a successful prosecution of the matter in question, including, if there is a trial, the probability of obtaining a conviction and having the conviction upheld upon appellate review; and
whether society’s interest in the matter might be better or equally vindicated by available civil, regulatory, administrative, or private remedies.
None of these suggest that the prosecutor’s personal sympathy with the motives of the lawbreaker is a sufficient or ethical reason not to charge when a serious crime has been committed. That, however, appears to be how Bristol County (Massachusetts) District Attorney Sam Sutter sees his role: arbiter and enabler of righteous criminal activity. Continue reading →
“I don’t think training would have had anything to do with nothing really, to be honest with you, because you could have trained them and they would still do it. You need to punish them for doing it, then they won’t do it.”
—John Thompson, who was wrongly and illegally convicted of murder in Louisiana and spent 14 years on death row because prosecutors withheld exculpatory blood evidence from his lawyers and his trial. His civil suit against the prosecutor’s office, run by Harry Connick, Sr. (yes, the singer’s father) for millions in punitive damages, on the theory that the prosecutors who framed him were inadequately trained, was overturned last week by the U.S. Supreme Court.
This statement apparently was made by Thompson last October, when the Supreme Court took the case, and I missed it. It surfaced again this morning in a Washington Post editorial calling for harsher punishment for prosecutors who violate the rights of accused suspects and send innocent people to prison or execution. The Post has never been more right, and the $14 million originally awarded to Thompson by an appalled jury for his ordeal is still inadequate compensation for the 18 years he spent behind bars because of a prosecutor’s dishonesty.
But the theory used to get Thompson his money—that the tragedy would have been prevented if Connick’s office hadn’t been negligent in training its lawyers in prosecutorial ethics—was a sham, and deserved to be rejected by the Court, no matter how much Thompson deserved the money, or indeed, ten time the money. Continue reading →
The U.S. Supreme Court is deliberating on the issue of whether a District Attorney’s office can be held liable when individual prosecutors commit serious misconduct, on the grounds that the government breached its duty to train its prosecutors and ensure their competence. The case is Connick v. Thompson, and it began when it was discovered that a New Orleans man had been sent to Death Row for 18 years for a crime he hadn’t committed. John Thompson was innocent, and a lab report proving that the blood found at the crime scene belonged to someone else would have proven it. Prosecutors withheld the evidence from the defense attorneys.
When Thompson was freed he was understandably angry, but the options for redress when the criminal justice system ruins your life are severely and unjustly limited. In 1976, the Supreme Court decided in Imbler v. Pachtman that prosecutors have absolute immunity from lawsuits, even when there is genuine, malicious and illegal conduct. The Court acknowledged that its ruling “does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty,” but declared the alternative was worse: making prosecutors timid and fearful of making a mistake that could leave them penniless. The Court suggested that professional discipline would be enough to keep prosecutors honest, but that hasn’t been the case: a USA Today study found that even in egregious cases of prosecutorial misconduct, attorneys who put innocent people in jail almost never had to endure any punishment at all. Thompson sued the District Attorney’s Office on a theory of negligent training, and won 14 million dollars from a sympathetic jury. Now the Supreme Court is deciding whether such suit can stand in light of the ruling in Pachtman.
It should, but the theory behind the lawsuit is a myth, and I suspect that everyone knows it. Continue reading →