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.
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.