Tuesday, September 9, 2014

And speaking of Brady violations . . .

This article by Ernie Lewis, Executive Director, National Association for Public Defense:


It’s time for another list.  This time the focus is on prosecutors. Admit it, you have things you want to say about prosecutors.  Please join in with your own.   Of course, prosecutors come in all shapes and stripes.  There are plenty of good ones and plenty of, well, not so good ones.  But they all know, if they’re honest with themselves, the following ten things that apply to many if not most of their colleagues: 

10.  They don’t believe the cop either.  How could they?  Michelle Alexander recently wrote an article in the NY Times, concluding with this:  “The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous. One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, ‘get tough’ mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.”  Prosecutors and judges both know this, and tolerate it at best, encourage it at worst. 

9.  They can control their caseloads much easier than we can.  Sometimes when I advocated for lower caseloads in the Kentucky legislature, prosecutors would testify that they had far higher caseloads than we did.  County attorneys in particular would cite the tens of thousands of traffic “cases” they handled, compared to “only 495 cases for public defenders”, knowing full well they did little or nothing on those cases, most of which were prepaid.  Where prosecutors really control their caseloads occurs when they decide to dismiss cases, or to offer sweet-heart deals, knowing that their case is weak.  Prosecutors can force us to try cases we don’t want to try, and to plead cases we want to try. 

8.  They are helping to destroy the jury trial.  The fact that the prevalence of the jury trial is shrinking is well known.  One cause known by all of us is that the laws that have been advocated successfully by prosecutors, laws such as 3-Strikes, mandatory minimums, and such, have made it unwise in many cases to throw the dice and let a jury decide.  When the offer on a 5-30 is 1 year on a reduced charge, what’s a client going to do?  Many if not most states over the last 30 years have rewritten their sentencing laws so that the thumb is firmly on the side of forcing pleas.  And prosecutors are complicit in that. 

7.  Innocent people confess.  Just this week, it was revealed that two half-brothers had pled guilty over 30 years ago to a rape-murder of an 11 year old that they did not commit.  There were both intellectually disabled.  Yet, confess they did, and despite their recantations, they were convicted.  One of them lived for 30 years on death row for a crime he did not commit, the other was serving a life sentence.  They were only released when DNA proved their innocence.  The Innocence Project reports that in 30% of cases resulting in exoneration through DNA, the defendants confessed or pled guilty where they were innocent. 

6.  Private lawyers often get better deals than public defenders do.  This used to occur with regularity in my practice.  Private paid lawyers would get a sweetheart deal for their client, while the public defender client would be offered a much harsher sentence.  The only difference between the two cases, as far as I could tell, was the poverty of the latter.  Perhaps poverty wasn’t the governing factor.  Perhaps the relationship between the prosecutor and the private lawyer governed the plea offer.  But it still stunk. 

5.  Their office is the farm team for the judiciary.  The progression always seems to be assistant prosecutor to prosecutor to judge.  At the federal level, 45% of President Obama’s nominees for the federal judiciary have been former prosecutors.  40% of President Reagan’s had a similar background.  Only 15% of President Obama’s nominees had been public defenders.  And perhaps it goes both ways.  When Texas Judge Elizabeth Coker was caught sending helpful texts to a prosecutor during trial, she resigned her office and then followed that by announcing that she was running for district attorney.  Isn’t it time for balance on the bench? 

4.  Even if they don’t believe the death penalty is a deterrent, they continue to support it so they can get better pleas or a death-qualified jury.  In Kentucky, we have 60-90 death eligible cases each year, and in many of those the death penalty is noticed until a plea is entered.  We have only 2 or so death penalty verdicts per year, with 5-10 trials.  More recently, we have had only one death verdict in several years.  This is a pattern that is common throughout the nation in death penalty states.  Why?  Because states have aggravating circumstances that apply to a high percentage of homicides, allowing prosecutors to notice death in order to force a plea.  

3.  They could do something about over-incarceration.  A growing consensus is that we have become the “incarceration nation.”  We have grown our prison population from a little over 200,000 in 1970 to over 2.2 million today.  We incarcerate at a higher rate than any other nation in the world.  (And don’t get me started on Louisiana).  Yet, a voice largely missing at the table encouraging reform of our nation’s laws, from long prison sentences to 3-Strikes laws to mandatory minimums, is that of the prosecutors.  They are a powerful voice in most State houses.  Why don’t they step up and use those powerful voices to do something about over-incarceration? 

2.  There is not parity with public defender offices.  I often use the analogy of the Harlem Globetrotters and the Washington Generals when describing what many prosecutors want in their adversary.  Many prosecutors have and want to preserve a systemic advantage.  They want their budgets to be two and three times the public defender’s budget, despite the public defender representing 70-90% of the cases.  They want higher salaries.  They want loan forgiveness.  They don’t want to include law enforcement in their budgets, but count investigators in public defender budget comparisons.  They don’t want to include their forfeitures and federal grants in comparing their budgets with defender budgets.  And while the ABA Ten Principles call for parity between the prosecution and defense functions, prosecutors do not for the most part advocate actively for parity. 

1.  Brady violations are rampant and they know they can get away with it.  Rodney Balko recently wrote a piece for the Huffington Post, entitled “The Untouchables: America's Misbehaving Prosecutors, And The System That Protects Them.”  Need I say more? 

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