Mimesis Law
14 December 2018

Warrior Prosecutors, A Big Deal Because There Are So Few

July 26, 2016 (Fault Lines) – It’s been a rough few weeks for law enforcement. Although the much maligned Cleveland Police are getting cheers for their handling of the Republican National Convention, it’s been a bright spot among many dark ones. There, of course, were the tragic shootings in Dallas and Baton Rouge, which targeted police officers directly. And there’s the questionable shootings in Minnesota and Miami, which also garnered a lot of angry commentary. Victims, heroes, and heels all represented in a very narrow time span but within the law enforcement community.

Whether you see police officers as helpful or dangerous is to some degree about race, but it is also a function of availability bias. There are approximately 800,000 sworn officers in the U.S., but the 24-hour news is primarily interested in the stories about wrongdoing. Officer Friendly helping out is a boring news story, while a SWAT operator injuring a baby is big news.

While investigating how the public sees law enforcement is worthwhile, another issue is how law enforcement sees themselves. Former cop and Fault Lines contributor Greg Prickett sees a law enforcement mindset informed by militarization as pervasive and deleterious. He argues that this mindset can be dangerously compounded with what Scott Greenfield calls the First Rule of Policing. Greg argues that this results in a choice of whether police officers will be warriors or guardians:

The difference between the two positions?

It’s simple.

Do you want guardians or warriors protecting you? You need to make your wishes known, because the police will chose warrior every single time. They’ll justify it by straw-man arguments, by pseudoscience propaganda, but appeals to officer safety and the First Rule. But they’re wrong.

And unless you insist on it, you’ll get warriors.

In contrast to the articles Greg cites, Delaware County Sheriff Russ Martin urges law enforcement to begin with public service mindset:

We cannot be seen as an occupying force or have the mindset of “only” prevailing. We police local communities because they allow us to police them. For the Rule of Law to work in decentralized policing we must adhere to the old adage that the “public is the police and the police is the public.” Therefore to be tactical is to apply this complex set of community standards as the backdrop of all our tactical thinking.

We can’t just simply survive or accomplish a mission. We must enforce the law, serve the community, protect the innocent and our self and at the end of each call (or problem) believe we have “thrived” as a result of the encounter and help the community feel the same way.

The conventional wisdom is that the attitude that the policy maker and law enforcement executives foster is the one that prevails. So, the thinking goes, if Congress wants militarized police departments, then everyone from the patrol officer to the chief gets it and responds accordingly.

As a result, you get the First Rule of Policing and other warrior-type behaviors infused into local law enforcement. For those inclined to reductionist thinking (not Fault Lines), “bad” police shootings are just the obvious consequences of the warrior-cop.

The approach law enforcement officers take regarding policing is important to local prosecutors, who are the ones who most often will be asked to review the lawfulness of the actions taken by those officers. Plus, in jurisdictions were the prosecutor acts as civil counsel to law enforcement agencies, the prosecutor may be asked to review policies and training prospectively. Ultimately, though, the policy decision on whether to be warriors or guardians is left up to the police agencies themselves and the legislative branch providing oversight.

Beyond providing oversight to individual cops and departments, prosecutors are the link between investigation and conviction. Without prosecutors, the war on drugs ends in the back of the squad car. If the drug war and military surplus gear gave us the warrior cop, then it is conceivable that these same incentives give rise to the warrior-prosecutors. Yet, there’s only mostly weak anecdotal evidence for that.

Charging a defendant necessarily implies that the prosecutor believes that a jury can be convinced beyond a reasonable doubt of the defendant’s guilt. A defendant is presumed by the law and judge to be innocent, but the prosecutor has been already convinced, by the available evidence, of the defendant’s guilt. To the true believers, then it falls to the prosecutors to move heaven and earth to make sure the bad guy pays and the victim gets some measure of solace. This means that the law must give way to necessary result.

Former prosecutor turned defense attorney Ken White has discussed how the fear of letting a defendant go free colored his assessment of legal issues. Although I disagreed with much of Ken’s so-called “’confession,” in this context, the fear described by Ken is instructive. Although this has not been my experience, where instead prosecutors tend to be more pragmatic and far less zealous than Ken’s experience, I can understand the sentiment.

Nancy Grace is an example of a prosecutor drinking from this cup by prioritizing the victim and ignoring anything not in the service of justice for the victim. Duke lacrosse prosecutor Mike Nifong stands out as someone who was either a compatriot of Grace or tried to leverage a big case into political points. And perhaps the Senator Ted Stevens prosecutors were also warrior-prosecutors—rather than merely profoundly misguided.

In any event, they stand out as the warrior-prosecutors because they are rare. These folks seemingly see the command to seek justice not as a limiting factor but as an excuse to ignore evidence and play politics. And a fear of losing, a sense of higher calling, or whatever motivates them to break rules.

This brings us to two prosecutors in the news recently, Marilyn Mosby and Devon Anderson. Mosby aggressively prosecuted the cops involved in the death of Freddie Grey, and Anderson, well, Noel Erinjeri puts it like this:

The trial was adjourned until January, but the prosecutor, Nicholas Socias, wanted to make sure that Jenny would be available to testify. He asked for a body attachment, which the judge granted. Initially, she went to the local mental hospital, where eventually her condition improved. As soon as her mental health stabilized, she went home to her family for the holidays she was locked up in the Harris County Jail, where she remained until January 14, when the trial was over.

Yes, the prosecutor put a mentally ill victim in jail. Scott Greenfield was likewise critical, in particular because Jenny was not someone who seemed to not play the Game (street crime). To the criminal defense bar, Anderson’s decision looks like what might be politely called typical state bullying and “ends justifies the means” thinking. Or it may be seen as implicit bias or prejudice against lower classes and wrong zip codes, as Noel suggests.

It is a fair guess that Nancy Grace and her ilk would never, ever consider doing this to a victim. And if you’re a political creature like Anita Alvarez, then you’d never consider jailing a victim for fear of the political fallout. Although neither of the prime motivations of the warrior-prosecutors was present, perhaps Anderson was acting out of fear of the defendant going free. Even if that were the case, Anderson didn’t break rules, like the Stevens prosecutors.

We’ve decided at a governmental level that crimes are committed against the State and not individuals. Unlike the television shows where the suspect gets off because the victim wasn’t pressing charges, the charging decision is ultimately the prosecutor’s, on behalf of the public. In that case, it’s conceivable that prosecutors might have to compel a victim’s participation in some cases. Particularly, in inter-spousal violence, one spouse is often unwilling to cooperate.

While compelling cooperation of a victim alone may not fall within boundaries of the prevail-at-any-cost warrior-prosecutor, there is still reason to be critical of how the decision was carried out. And the apparent callousness does invite the question whether Anderson made the right decision for the wrong reasons.

Next up is Maryland District Attorney Marilyn Mosby, who has taken a lot of criticism for her decision to prosecute. So much so that she, like Nifong before her, has been referred to the bar for her conduct. Scott, while questioning Mosby’s competence, explained the problem as follows:

There are two unquestionable data points. The first is that Freddie Gray shouldn’t be dead. The second is that the prosecution of police officers for Freddie Gray’s death by Maryland State’s Attorney Marilyn Mosby has been an abject failure of massive proportions. Some will insist there’s a connection between these two data points. After all, if there is a wrongful death of a person in the hands of police, there must be a criminal cop who must be convicted.

Unfortunately, that isn’t how law works.

Prosecuting police officers is notoriously difficult. But Mosby should know about this before charging them. Grey’s arrest was questionable, as was an explanation that some of the officers offered in their defense. But Grey is dead and that matters most of all, particularly at a moment when deaths of minorities at the hands of police officers is a political movement. Not surprisingly then, Mosby has been accused of playing politics by charging the officers.

It seems that while what the officers did initially was unlawful, that did not necessarily make everything that followed criminal. Moreover, the judge had a difficult time buying that an arrest without probable cause was itself a crime. Of course, the city settled with the family for millions of dollars, indicating that the City concluded that there was a serious risk that jurors would conclude that the officers had behaved unlawfully. And if you want such wrongful arrests to be crimes, talk to your legislators, who are the policymakers.

The officers did wrong and should be appropriately punished for the wrongdoing. But not every wrong lends itself to a criminal remedy. Mosby appeared unwilling to accept that fact. Sometimes civil and administrative actions are the best possible outcome. While perhaps she didn’t want to suffer the fate of Tim McGinty for not indicting the officers, she could have punted to a special prosecutor.

If Mosby gave into political pressure to tilt at windmills, then while maybe not totally unexpected, she should be condemned. Likewise, if she drew a line from police misconduct to homicide without care of how the law worked, then maybe she’s a warrior-prosecutor. On the other hand, the case got all the way to a jury, so it didn’t seem to be completely lacking. If anything, Mosby lacked the pragmatism possessed by many other prosecutors.

We can try, as we do with patrol officers, to circumstantially deduce guilt, e.g. white cop plus dead black suspect equals racist warrior-cop. But there’s no dash board video or exact moment of decision-making to which we can point. There are too many moving parts in most felony cases to reduce it down to a single moment or act.

The complexity of the law, shaped by the facts known at any one time, hopefully demonstrate that being a warrior-prosecutor is a bad idea. But so too, it demonstrates that it’s often hard to ascribe bad motives to an elected prosecutor. Unless you’re like Ken White, who sees a poisonous prosecutorial mindset many places, the motivations ultimately matter little.

Based on what we know, Anderson was wrong for being ham-fisted with her victim, and Mosby pursued criminal charges she couldn’t prove. And we can criticize and demand answers, like many are doing right now. But thankfully, warrior-prosecutors are mostly a thing of dramas and cable news shows.

7 Comments on this post.

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  • Jeff Gill
    26 July 2016 at 10:59 am - Reply

    “Officer Friendly helping out is a boring news story, while a SWAT operator injuring a baby is big news.”

    And nine young men supporting each other across a year’s period to all earn Eagle Scout, put thousands of dollars and hours into their community and receive them together gets modest note and short recollection, though if we had half a dozen juveniles conspiring to rob a pizza delivery guy for a couple hundred we’d be bemoaning that for months. I know it’s so, but I don’t have to like it!

  • Liz W
    26 July 2016 at 12:54 pm - Reply

    More apologist drivel from Andrew.

    First of all, we get pro law enforcement stories daily from the media. Dog rescue, tossing a football, giving someone shoes, that staged puff piece bull always gets covered locally. Now the opposite, Amy Bach’s little ordinary injustices, the media could give a shit about that, up until the community goddamn riots.
    There’s another prosecutor in Baltimore that he’s not mentioning, Barry Williams.
    Williams may call himself “judge”, and wear an official black mumu, but make no mistake, he’s a prosecutor, and his “discretion” is what allowed Gray’s murderers to walk. Williams acted like a true prosecutor, doing his part to ensure the status quo of blue privilege (not to mention his own personal interest in appeasing the LEO lobby, which may well earn him a district appointment one day).

    Isn’t it funny how ambiguous facts and sensationalist narratives are good enough for regular citizens (unless you pick the wrong target like Nifong did), but we hear about how we can’t reduce a felony case “to a single moment or act” when the accused are the state’s attack dogs.
    Well, not so much “funny” as ” telling”. You’re not fooling anyone with half a brain Andrew.

    • Greg Prickett
      26 July 2016 at 6:44 pm - Reply

      We don’t require GroupThink at Fault Lines. So you may want to write another script to filter out voices you don’t like. Then you can be in your safe space.

      The rest of us, Andrew and myself included, will be debating real issues.

  • Jay
    26 July 2016 at 3:02 pm - Reply

    On the contrary, most prosecutors where I am are trained to think of themselves as sheep dogs and use lousy cases to pound people they think are bad. There’s very little news about prosecutors at all, so what with the lack of data, your conclusion is just silly. I welcome the day your ilk are dragged kicking into the light.

  • Wrongway
    27 July 2016 at 3:17 am - Reply

    “On the other hand, the case got all the way to a jury, so it didn’t seem to be completely lacking. If anything, Mosby lacked the pragmatism possessed by many other prosecutors.”

    I thought most of these were ‘Bench Trials’ ??
    I knew they were gonna get off so I didn’t pay too close attention to the Grey cases..

    Also, while Anderson may not have broken the rules, but they damned sure weren’t Thinking..

    I understand what you’re saying, & your point is a good one.

    My take though is that ‘The System’ stops seeing those of us in the public as Humans. We’re pawns to be used to gain the desired results. And that’s a very dangerous thing for a prosecutor with lots of power & resources.

    Great Post though, & thanks for making me think..

    • Andrew King
      29 July 2016 at 11:43 am - Reply

      You’re right; I wasn’t entirely clear there. It was the result of trying to be too broad and too general.

      There was one jury trial. But even in the others, I believe that they all got past a motion for acquittal. So, it’s fair to conclude the charges weren’t totally without merit.

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