Mimesis Law
22 November 2017

Ken White’s Unnecessary Confession

June 28, 2016 (Fault Lines)Fault Lines contributor and man-about-the internet, Ken White, has a new post up at Reason called “Confessions of an Ex-Prosecutor.” In it, Ken discusses prosecutorial misconduct broadly and examines things that he suspects may be at the root of the problem. Here’s a taste:

When I left the U.S. Attorney’s office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I’m a defense-side true believer—the very sort of true believer that used to annoy me as a young prosecutor.

As a long time reader of Popehat, I think Ken and I probably see eye-to-eye on many things. For example, I wrote these posts discussing Ken’s article about 10 libertarian questions. But Ken and I currently come from different ends of the criminal justice spectrum; he’s prosecutor turned criminal defense attorney, and I am a criminal defense attorney turned prosecutor.

These roles, though, do not entirely define who we are. For example, Ken, the criminal defense attorney, was tough on Judge Perksy’s decision to sentence Brock Turner to a relative light sentence, and Andrew King, the prosecutor, was willing to suggest a plausible defense for Judge Persky.

While I have been willing to break from the herd and suggest oversight of prosecutors can be a good thing, unlike Ken, I don’t feel the need to confess anything. Let’s start with Ken’s first point:

A Fearful Office Culture That Doesn’t Encourage Introspection About Wrongdoing. * * * That tendency to dismiss claims of misconduct is encouraged by the frequency of genuinely bogus complaints. I was accused of prosecutorial misconduct twice, and it was nonsense both times. * * * As a result, it became easy—natural—to view allegations of misconduct as something that defense attorneys cynically pursue for tactical advantage. In that frame of mind, prosecutors aren’t inclined to scrutinize legitimate complaints too closely.

Ken is right, culture and institutions are extremely important, in public offices especially. But the sorts of complaints made here can be made about nearly every large bureaucracy. That’s true whether it’s the IRS or the VA, or even if you’re a private company like General Motors. Although hiring good people is necessary, as the saying goes you can’t put new wine into old wineskins.

Managers usually aren’t the solution to fixing culture because, all too often, these managers are either promoted to their level of incompetence or they were promoted because they were damagingly incompetent. Then you add to this mix that many, many government employees never face any real consequences for either superior or poor performance, and you end up with the experience most of us have when interacting with large bureaucracies. Certainly we’d like prosecutors to rise above all that, but I imagine we’d like every officious bureaucrat to rise above all that. So, Ken’s experience as an AUSA does not appear to be so expectionally different as to require a confession.

Next Ken says this:

Just as the brotherhood of prosecutors was premised on shared experience, it was also premised on shared fear. As a defense attorney, I fear that I’ll fail my client and they will be unjustly imprisoned. But as a prosecutor, the culture taught me to fear that I’d make a mistake and a guilty defendant would go free to wreak havoc on society. That fear constantly colored my assessment of legal issues.

Local prosecutors are not the American equivalent to Roman censors. And when on the defense side, I certainly ran into a few of these folks; so, I acknowledge that they exist. But, again, the cultures of large government bureaucracies can give unaccountable folks a disproportionate amount of power to re-make their world as Pygmalion made his sculpture. Almost a decade ago, Professor Bainbridge discussed his frustrating experience trying to navigate local bureaucracy to build an addition to his home. Certainly, the prosecutor’s ability to leverage the bureaucracy against your liberty and property is different than the officious zoning inspector, but that’s a difference in magnitude rather than kind.

Moreover, the emotional motivation to do your job well is not something exclusive to prosecutors. You may remember John “Two Americas” Edwards, who styled himself as plaintiff’s lawyer tireless seeking social and economic justice. Plenty of plaintiff’s lawyers feel the same way, which is why they re-named their trade group American Association for Justice. And there are public interest lawyers like Gloria Allred, seeking gender equality through litigation, and even public interest groups like FIRE, seeking to protect free speech. Maybe self-importance is simply a hazard of being a lawyer, rather than a unique feature of prosecutors. So, again, hardly anything requiring a personal confession.

Ken continues:

American culture relentlessly tells prosecutors that they are by definition the good guys. It tells them that assertions of rights are, at best, impediments to be overcome, and at worst cynical ploys by villains. It is tremendously difficult to ignore those cultural messages and give defendants’ constitutional rights the attention they deserve.

David Grossman has long argued that video games are murder simulators that teach kids to kill. Relatedly, it seems that we can view entertainment media as prosecutorial misconduct simulators. Prosecutors can’t really help it then; starting as babies, we were soothed and nurtured by these prosecutorial misconduct simulators. We could ban “Dirty Harry,” but then there are non-prosecutors who can be entertained without the fear of inculcation.

So, perhaps then, the better solution is to have a “No-Watch List.” If you are may become a prosecutor, then we have to restrict what you choose to watch. While we’re at it, maybe we should make a list for police officers, starting with “Training Day.” Well, maybe it’s really a cautionary tale rather than a cop corruption simulator. But better to be safe than sorry—no entertainment for you.

Ken then makes his final argument:

On the other hand, prosecutors are encouraged to think differently about lies by mere civilians. If federal agents lie about you to a magistrate to get a search warrant, the question is whether the lie did actually make a difference. But if you lie to federal agents, the standard is far less forgiving. The materiality of a false statement to the federal government is measured by whether it is the sort of statement that could hypothetically have influenced the government’s decision-making, not whether it actually did. Thus prosecutors are trained to treat defendants’ wrongdoing harshly and government wrongdoing leniently.

Nearly every type of law enforcement misconduct presents a prosecutorial opportunity—an obligation—to argue that the misconduct doesn’t matter.

This argument is simply incomplete. Certainly, I appreciate that Ken is writing for a mostly lay audience, which sometimes requires high levels of generalities. And, yes, I understand that the theme of this piece is prosecutors. But what is so novel with the idea that people, including lawyers (insert joke here), respond to incentives? Nothing.

The legal system is replete with rules and incentives, which direct decisions and actions. And this is non-exclusive to the criminal justice system. Plaintiff’s attorneys have a powerful tool in choosing the forum; so, they often pick the one that gives them the best shot at a large recovery. Plaintiff’s bar would call this playing by the rules; the defense bar calls these forums judicial hellholes.

True prosecutors are permitted to argue that some rights violations are indeed harmless. But the supposedly independent third branch of our system of governance is the one that established the harmless error rule. And it’s arguably not even the best understood effort to empower prosecutors and screw-over defendants. It is far more likely that the judicial branch prefers finality because of the time and expense involved in litigation. Plus, there are plenty of other reasons why judges may justifiably reject meritorious claims.

Attorneys everywhere use the rules the courts give them to the benefit for their clients. My former firm, which did plaintiff’s work, got service and then a default judgment on an insurance company for a not-insignificant amount. A motion for relief from judgment, lots of discovery, and an appeal later, the default judgment was upheld. So, the sort of thing Ken complains about is part and parcel of the entire legal system. Prosecutors, like civil litigators or criminal defense attorney, are advocates for their clients, responding to the rules and incentives.

Ultimately, Ken references calls for reforms by people like Judge Kozinski and calls for culture to be redeemed. Sometimes the lawyer’s incentives are contrary to the client’s incentives. Sometimes the rules fail to ensure accountability and lead to system-wide failures. And we can use institutions already in the legal system in new ways to ameliorate the harsh results that the legal experts created.

Yet, one can believe all that and more without having to confess anything.

17 Comments on this post.

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  • Noel Erinjeri
    28 June 2016 at 9:54 am - Reply

    “Prosecutors, like civil litigators or criminal defense attorney, are advocates for their clients, responding to the rules and incentives.”

    Who is your client?

    • Andrew King
      28 June 2016 at 11:01 am - Reply

      The State. Are you thinking it should be otherwise?

      • Noel Erinjeri
        30 June 2016 at 12:41 am - Reply

        Not at all…but the State doesn’t (or at least shouldn’t) have an interest in winning the case as such, as in the cliche that the prosecutor’s goal is not a conviction but that justice be done. So prosecutors are (or at least should) be held to a higher standard than everyone else.

        • Andrew King
          30 June 2016 at 8:10 am - Reply

          True, but I don’t think you’d say that prosecutors are never advocates. Certainly during the charging stage, they shouldn’t be. But I think it would be fair to characterize the work done during trial as advocacy.

          • Noel Erinjeri
            30 June 2016 at 12:02 pm -

            Not the point. Whether we’re talking about pretrial (overcharging), trial (trying to admit sketchy evidence), or post-trial (pushing for a trial tax); prosecutors can’t use the excuse that “this is what advocates do.”

            Different objectives means different roles means different standards, especially because prosecutors are not merely representatives of the State but are actually the ones exercising the State’s power.

  • Chris
    28 June 2016 at 11:16 am - Reply

    The prosecutor’s “client” is the people and State of X or the United States.

    His experience as an AUSA is not common among the hundreds of prosecuting agencies that varies greatly even within the same state. Feds have a completely different situation in terms of volume and political incentives.

    Generally state prosecutor’s review a case, including 4th issues, and decide to dismiss or prosecute. Feds are dealing with the culmination of a large investigation, where the AUSA is working closely with the FBI to wiretap this search warrant that.

    So looking at the case and calling it crap and dumping it never crosses the mind of a fed.

    • Andrew King
      28 June 2016 at 11:27 am - Reply

      Chris,

      I didn’t want to get too far into the weeds above; so, I didn’t address the federal/state distinction. But I agree with your observation. The DoJ in Washington plays a non-trivial role too. I gather that the level of bureaucracy in any US Attorney office is going to be greater than most prosecutor’s offices.

  • Aiken
    28 June 2016 at 1:53 pm - Reply

    While your mileage somewhat varies from Ken’s, Ken’s position was not that a confession was “required” as you imply. Rather, it’s that his observations “may be at the root of the problem” of prosecutorial misconduct.

  • Patrick Maupin
    28 June 2016 at 8:52 pm - Reply

    … and you end up with the experience most of us have when interacting with large bureaucracies.

    Yeah, they all wind up throwing me in jail.

    Oh, wait.

  • Jordan
    28 June 2016 at 9:26 pm - Reply

    Your defense seems largely to be that other organizations suffer from the same failings that prosecutors do. Considering the vast disparity in the power wielded by prosecutors and that wielded by General Motors, that’s not much of a defense.

    Prosecutors should be held to the highest of standards, but thanks to immunity and meek bar associations and judges, they are held to even lower standards than the guy who cleans their bathrooms.

  • Richard G. Kopf
    28 June 2016 at 9:27 pm - Reply

    Andrew,

    I love thoughtful and beautiful writing. This post does not disappoint. Thanks.

    All the best.

    Rich Kopf

    • Scott Jacobs
      29 June 2016 at 6:00 pm - Reply

      I will agree that it doesn’t disappoint, but that is only because I have exceedingly low expectations for what Andrew posts.

      • Greg Prickett
        29 June 2016 at 6:41 pm - Reply

        I often disagree with Andrew but at the same time his posts are well thought out and articulate. He offers a perspective that we need here, if just to avoid groupthink.

        The purpose of F/L is to bring diverse voices to the discussion. Andrew is one of those voices and I hope will be one for a long time.

        • shg
          29 June 2016 at 7:42 pm - Reply

          Exactly. The one thing we hope FL never becomes is an echo chamber.

        • Andrew King
          30 June 2016 at 8:11 am - Reply

          Aw shucks.

        • Scott Jacobs
          30 June 2016 at 7:33 pm - Reply

          Oh, they are very well written, and I would never – even if my opinion were sought and considered to matter – suggest he be removed.

          My issue is his obvious disdain for things like “due process.” I’m glad he’s here too, if only so folks can see what prosecutors really think of your rights.

  • Kendall
    4 July 2016 at 6:30 pm - Reply

    Similar to modern journalism, “man says earth round, other says flat….disagreement over earth’s shape.” I was a prosecutor for 30 years. Mr. White is more persuasive–by far.