There is an unspoken commonality between the two big domestic news items of the past week. The first, of course, involves the shooting death of Michael Brown by a Ferguson police officer. The second is the (farcical) indictment of Governor Rick Perry. The former has sparked outrage and continued discussions over items ranging from racism to police brutality. There has been a much needed discussion of whether the police have become more confrontational, and whether they have become overly militarized. Though the wizards of smart at such venerable institutions as Vox may not realize it, this has actually been an ongoing conversation for some time in conservative and libertarian circles. Even some on the right have attacked armies of strawmen in claiming that conservatives in general are reflexively defensive of the police. While we certainly are less quick to call for prosecutions before all the evidence is in (unlike certain governors), that doesn’t mean we automatically awesome that the police are in the right whenever a civilian is shot and killed.
As for the Perry indictment – well, when even the editorial pages of the New York Times and Austin American Statesmen, as well as lefty pundits like Jonathan Chait, acknowledge (through gritted teeth) there is no there there, you might just have yourselves a completely partisan and unmerited prosecution. But the conversation surrounding the Perry indictment has centered around its frivolousness and the potential impact on Perry’s political future. What it has not sparked is a similar conversation about prosecutorial misbehavior that we are hearing regarding police misbehavior. And that is a mistake.
Before continuing, I want to make clear that the two cases are not of the same gravity. Michael Brown is dead, whereas at worst Rick Perry’s possible presidential ambitions have been hampered (though there is a possibility that in fact this has been incredibly beneficial to his presidential aspirations). In the grand scheme of things, I would gladly take wrongful prosecution over being shot and killed by a police officer. Yet, when we talk more generally about law enforcement and criminal prosecution, we should be just as concerned about bad DAs as we are about rotten police officers.
The Perry case has drawn notice, but it’s certainly not the first case of a political prosecution. Indeed, it’s not even the first case of a purely partisan, political prosecution of a Republican coming from a Travis County District Attorney (see Delay, Tom). In Alaska, prosecutors withheld exculpatory evidence that would have exonerated the late Ted Stevens. Now these are political prosecutions, so it might be somewhat more difficult to empathize with the wrongfully prosecuted. But there have been other noteworthy examples of prosecutors either disregarding evidence, or simply engaging in prosecutions due to political pressure, or to advance their own careers. The most notorious example in recent years is perhaps Michael Nifong, the Durham county DA who pressed forward with rape charge against Duke lacrosse players even after it became manifestly obvious that no crime had been committed. This past year we witnessed the George Zimmerman trial, an event which occurred it seems largely because the DA was fearful of the political fallout (and I acknowledge that I might be somewhat generous about her motivations) if there was no prosecution. Even the Michael Brown shooting could become a political prosecution if it is felt that the police officer has to be tried merely to appease the mob.*
*Again, let me emphasize that I am not saying that a trial would merely be a political witch-hunt. We do not have all the evidence in, and it is quite possible that Darren Wilson ought to be indicted once all the evidence is in. I am merely saying here that there is a potential for an unjustified prosecution based solely on political pressure.
These are but the most notorious examples that come to mind, but undoubtedly there are others that are just heinous, if not worse. The point is that some prosecutors – much like some police officers – are motivated by less than honest intentions, and their behavior can be just as destructive to a person’s life. Now, I’m not saying that every incorrect prosecution is a wrongful prosecution. Prosecuting attorneys are mortal and can honestly but incorrectly come to the conclusion that the suspect is guilty. We can only hope in those cases that the jury can realize the error. Prosecutors should not be maligned for honest errors in judgment. But what is dangerous and what does tear at the social fabric is a DA who marches on in spite of contradictory evidence, who intentionally stifles exculpatory evidence, and who refuses to relent all because they just so desperately need a conviction, and any conviction will do.
We don’t fear District Attorneys as we do police officers because District Attorneys don’t carry guns (as part of their jobs), and so they aren’t going to wrongfully kill anyone. But we need to demand the same level of integrity from them as we do the police precisely because they are guardians of law and order. When they use their office as a political weapon, they are making a mockery of the rule of law.
1. William Dyer (“Beldar”) has suggested that adopting a British system wherein barristers work both as prosecutors and as defense counsel is not the solution.
2. Glenn Reynolds has suggested that it be required to disclose plea offers at trial. (That’s only going to effect the small portion of cases which are actually tried).
3. A third suggestion has been offered: that the public prosecutor’s office have a fund from which it must compensate defense counsel for failed charges. Each charge is assigned a metric and that for the full bill is computed. The charges which survive negotiations or trial are the numerator. The defense counsel is compensated for the full amount less the proportion accounted for by the surviving charges. (I think you’d essentially have to have fixed hourly rates for defense counsel adjusted annually per the year to year change in nominal personal income per capita). Might discourage over-charging. Has the drawback that it would establish a monopsony in the market for criminal defense work.
4. Scarify the federal criminal code. A great many of the horrors you read about seem to emanate from opaque charges leveled by U.S. Attorneys (Conrad Black). There’s supposedly a class of assistant us attorney who, like Perry Mason, work on only one case at a time.
5. Remove unqualified immunity from prosecutors and judges, and allow defendants to bring charges in front of mixed disciplinary panels.
6. Replace competitive election to prosecutors’ offices with appointment conjoined to periodic retention referenda; hold such referenda for U.S. Attorney’s as well; have term limits for DA’s: two terms and change and you’re out.
7. Allow judicial panels to subject prosecutors to peer review and removal.
8. Consolidate superior court jurisdictions; Fewer mini-jurisdictions with local prosecutors with idiosyncratic defects and fewer single-judge multi-hat courts.
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I suspect your real problem, though, is the decay of the intramural culture of the legal profession, which is an aspect of the ruin of our times generally.
“5. Remove unqualified immunity from prosecutors and judges, and allow defendants to bring charges in front of mixed disciplinary panels.”
Allow civil suits against prosecutors if a Judge finds at the conclusion of a case that a prosecution was without merit.
“Prosecuting attorneys are mortal and can honestly but incorrectly come to the conclusion that the suspect is guilty”
Should a prosecutor really ask himself whether the suspect is guilty? A prosecutor is presented with a bundle of precognitions and, possibly, the suspect’s Declaration. He knows little or nothing of the defence case. He has no opportunity to observe the demeanour of the witnesses when giving their evidence or to see it tested by cross-examination. Still less is he able to judge between conflicting testimony.
The question he should ask himself, surely, is this, “If the jury find these witnesses to be credible and reliable, is there sufficient evidence on which they could properly convict? Is there legally sufficient (i.e. corroborated) evidence (if believed to be credible and reliable) to identify the accused and to establish the essential ingredients of the offence?”
The question he should ask himself, surely, is this, “If the jury find these witnesses to be credible and reliable, is there sufficient evidence on which they could properly convict?
What jury? In this country, over 90% of criminal cases are disposed of through negotiation between prosecutors and defense counsel.
Said suits to brought in a court presided over by a physician and heard by a jury of more physicians. Such a court should hear all cases of lawyer malpractice.
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No. Mixed panels: an economist, a merchant or artisan, an engineer, an accountant, a physician or allied professional, and a statistician or actuary. Beat them over the head with the math.
Art Deco
Guilty pleas diminish sharply with the gravity of the offence.
In summary cases (maximum 3 months imprisonment) 95% are concluded by plea. On indictment in the Sheriff Court (maximum 5 years imprisonment), this drops to 81%. In the High Court, which deals with the most serious cases (maximum life imprisonment), it drops to 63%, despite the fact that pleading guilty at the earliest opportunity attracts a discount of about one-third of the sentence.
Also, bear in mind that defence solicitors do not usually instruct counsel until after the indictment has been served, so an advocate depute takes his decision to prosecute in almost complete ignorance of the defence case. The list of witnesses and productions must accompany the indictment, so he must be prepared, at that point, to lead a proof.
Conviction rates vary dramatically with the type of crime. In homicide cases, 77% are convicted, 12% Not Guilty, 7% Not Proven and 4% deserted. Importing drugs has an 86% conviction rate, with 2% acquitted and 12% deserted. Rape has one of the lowest, 56% convicted, 28% Not Guilty, 15% Not Proven and 1% deserted. Crimes of dishonesty all have conviction rates around 80%.
In New York, prosecutions for murder are resolved in jury trials about half the time. It’s lower for other crimes. All felony indictments are issued by grand juries who almost never no-bill anyone.
Don, I have a question for you.
My understanding is that judges form groups called ‘judicial conferences’ that seek to promote professional behavior within the judiciary. It would seem to me that these conferences could be more active in promoting professional behavior among the other players in the justice system, for example:
1) Disallowing all traffic tickets during a ticket blitz by police
2) Banning testimony in court by any police officer with a demonstrated history of probable false statements (“Officer, I am not happy with your performance in this case, and I am putting you on the conference watch list. Don’t let it happen again, or we will make sure you can never sign your name to another police report! Now, get out of my chambers!”)
3) and proactive disciplinary action against prosecutorial misconduct – meaning why wait for the victim to complain?
It seems to me that the justice system is much too passive with regards to policing itself, and that judges are in the best position to pressure the other players to behave. Of course in the Perry case the judge probably colluded with the prosecutor, so the conference politics would then come into play, but the idea still stands. Your opinion?
“Disallowing all traffic tickets during a ticket blitz by police”
I shouldn’t have written ‘all’. The big three – DWI, leaving the scene of an accident, and passing a school bus – should stick even during a blitz.
“Your opinion?”
Most judges are doing a good job just keeping up with the cases that flow through their court rooms, let alone starting to exercise a supervisory capacity of the prosecutors and the police. Judges usually do not have much to say about anything unless a party in litigation files a motion or an objection. Some judges are proactive, but most are not. Additionally, in most jurisdictions either party can file a motion that has to be granted to substitute one judge without cause on each case, and judges that either defense counsel or prosecutors do not get along with are routinely substituted. Finally, the largest category of judges come from the ranks of prosecutors.
No, the only thing that will make a change in the system is prosecutors fearful of bankrupting lawsuits if they are found to be bringing a meritless prosecution, if a judge at the end of the case, on motion of the defendant, is required to make a finding as to the merit of the prosecution. Just the possibility of a court finding that a prosecution was without merit could have a major impact on what is prosecuted.