Monday, January 29, 2007

Bad Apples

Great catch by Doug Berman at Sentencing Law and Policy of exactly what we’re been criticizing here, the “power because I have it” approach of too many prosecutors, who delegitimize our system and the respect their conscientious colleagues need and deserve. And from a former prosecutor who has walked the path.

But there is someone in the system that is suppose to prevent these problems [the Wilson case in GA], not exploit them. That is the prosecutor. I became a prosecutor, for a few years, because I wished to crush the balls of sexual perverts and woman beaters. While I like to think my motives were noble, many lawyers find this kind of power intoxicating. Prosecutor offices are mostly staffed with young lawyers directly out of law school. The pay is not good, but the experience is unparalleled....

But most people do not do this type of work for long. Some, like me, just get sick of the whole thing. Most, after a few years, can make tons more money by moving to the private side. However, there are some who pretty much make a career out of it. Now some of these have the best of intentions. But all too many stay because, even though the dough is a lot better in a private firm, you do not have the opportunity to lop off heads on a regular basis. And that is what this is all about. In legal parlance it is called "prosecutorial discretion."

Nice to be confirmed. But then Doug hauls in another line drive, a new case of the “I’m incapable of ever being wrong” approach of too many “power because I have it” DAs, as if the cases in IL never happened, as if studies haven’t been done in other states without undermining attitudes on the death penalty.

Ohio's legal system hasn't sent anyone to Death Row who doesn't belong there, the head of the state prosecutors association says. He is urging Gov. Ted Strickland not to support a capital-punishment study. "There are no mysteries here. … The death penalty is in fact being applied to exactly those persons and to those crimes for which it was intended," John E. Murphy wrote in a Jan. 15 letter to the Democratic governor.

Murphy said a study, long advocated by capital-punishment opponents and Attorney General Marc Dann during his campaign last year, would "send the wrong message to the citizens of this state that there is something wrong with our death penalty." The only thing wrong, Murphy added, is that "it takes too long to get the penalty enforced."...

Of course, you can find other examples just by swinging a dead cat. Grits for Breakfast gives us another great example from DAs reacting to an Innocence Commission in TX, as if TX crim just hist is known throughout the world as just one unflawed tapestry free from error or incompetence.

Dave Mann at the Texas Observer explores the arguments in favor of a Texas Innocence Commission, as does Glenna Whitley at the Dallas Observer, and Sheron Patterson at the Dallas News.

I wanted to also link to a particularly hostile string on the prosecutors' user forum criticizing the proposal, but they appear to have taken it down.

However you can still read the DA's consoling one another that negative public perceptions of prosecutors don't matter because their critics are morons: "The understanding of our work and choices are not for the least common denominator," said an Amarillo prosecutor. "While the American society has generated great persons of deep understanding, we also came up with Susan Sarandon and Steve Urkel."

I hope that's exactly the attitude DAs take when the Innocence Commission comes up for debate at the Legislature. Such arrogance, indeed the utter failure to acknowledge reality, belies DAs' weak position in the debate. Too many exonerations have occurred over the last few years for anyone to believe their critics are all ignorant and ill-informed.

All you need to know about how any group of people can go wrong is to hear them say seriously, “We can’t be wrong.” Followed by “and if anyone says we are, they’re stupid or, worse, liberals.” And the hits just keep on coming.

Roy Brown was convicted of a brutal murder on the basis of dubious bite mark evidence. Fifteen years later, a DNA analysis proved that the state's bite mark expert was wrong.

What happened to Mr. Brown is hardly an aberration. Prosecutors have invoked bite-mark matches to secure convictions in numerous cases, only to see these convictions overturned when DNA or other evidence has become available.

In spite of the evolution of other forensic sciences, bite-mark analysis remains an inexact tool. A 1999 study by a member of the American Board of Forensic Odontology, a professional trade organization, found a 63 percent rate of false identifications.

Why do prosecutors consistently rely upon such consistently unreliable evidence?

There is, experts say, a mix of ignorance on the part of jurors and defense lawyers about the evidence’s scientific shortcomings and the overzealousness of prosecutors and their expert witnesses, who are seen as too quick to validate an unproven technique.

The problem, of course, is exactly what Grits says. Bad prosecutors and bad prosecutors do to our justice system exactly what bad cops and bad arrests do. Not only do they undermine the law's legitimacy, they cut the legs out from under the very many good prosecutors who do their jobs with true sense of justice and public purpose, not as Blues Brothers wannabes on a mission from God. I realize that this is not news, but do we really not see the connection between the breakdown in respect and authority for law among large segments of our communities and the abuse of the process and the people performed by these unguided missiles. I've known too many really good people in prosecutors' offices to feel anything but sadness about what's being done to their profession in the name of "winning" and by their own, all-too-predictable protection of their bad apples in the name of defending their profession. The problem for the rest of us is that, as their aftereffects ripple through our corrections sentencing system and through our communities, we all--victims, taxpayers, basic citizenry-- pay a price we just don't, and shouldn't, have to pay.

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