The prosecution lies

If you are one of the many (possibly majority) who believe that the ends of punishment of bad guys justifies any means and that ignoring technicalities like rules of evidence is okay when it comes to convicting criminals (“hey, they didn’t give due process to their victims, did they?”), then ... stop reading... S’long.
Anybody left?

The public’s negative image of lawyers in the criminal justice system, “informed by” (I love that phrase - it so often means “misinformed by”) pop culture references, has focused on defense lawyers.

Our profession always scores below used car sales on the integrity scale. Some deserve the shame, although I have found that lack of competence, effort, and concern for the client are habits that are far more pervasive than cheating to win-at-all-costs behavior.


BUT ... Today’s L.A. Times contains an article that is not news to many of us who have labored in the justice system for any length of time. A study conducted at Santa Clara University School of Law concluded that misconduct by prosecutors in California was widespread — tolerated with a shrug by the courts, their peers and superiors, and mostly by the public.


The article contains a few quotes from prosecutors in their own defense. One, who had been criticised in several appellate cases, shrugged that the court didn’t find that his misconduct resulted in an erroneous conviction.

I thought that was funny, like the doctor saying the patient would have died anyway, so what’s the rumpus! Chick Hearn’s dictum: “No harm, no foul.”


Yes, it is true that in the vast majority of cases, appellate courts find any misconduct by prosecutor’s to be “harmless error,” i.e., not enough to reverse a conviction because the appellate judges have reviewed the trial evidence and decided that the defendant was guilty anyway.


This result is not completely surprising, considering that almost all appellate judges are recruited from the ranks of prosecutor offices. Many consider their duties as judges simply to be an extension of their careers as prosecutors — they are still “administering” the law.

Thus, their view of evidence and their conclusions as to what a “reasonable” jury would have done if the prosecutor hadn’t concealed, misled, distorted, lied, and / or knowingly violated substantive rules of law is drastically skewed.


Even when prosecutors are caught committing serious misconduct they are rarely disciplined by their superiors. The culture — like that of the police — supports the “tough on criminal” mentality. Part of the reason for this state of mind lies in the perception that the system is biased in favor of the defense.

The culture bridles at traditions like “presumption of innocence”, “proof beyond a reasonable doubt”, and unanimous verdicts, which are perceived to place too high a burden on overworked and underpaid prosecutors.


The public’s perception in this case is based on realities that haven’t existed since telephones had rotary dials. Judges haven’t been “too liberal” in California since the 1960's.

A succession of conservative governors and draconian initiatives which constitute wish lists for prosecutors have tilted the scales of justice so far in favor of the prosecution that the most ambitious law students interested in criminal law careers almost invariably seek jobs as prosecutors rather than defense lawyers.

Public defender offices are now housed with shell shocked inmates, terrified of receiving yet another losing case.

Defending is no tea party. Sorry.