Us v. Them II


Shannon Quadros wrote, in comments to Us v. Them,

Don’t you think McKinney is being a tad rough. I know that the DA’s office isn’t a bunch of angels but it’s not like they are the spawn of Satan either. Well not that I know of anyway.

What I would like to see is what someone who has been on both sides, say former ADA now criminal-defense lawyer (or possibly, though I think rarer, criminal-defense lawyer turned ADA) seems to think about prosecutors and defenders.

I admire McKinney’s passion and yours as well in advocating your clients’ rights. And that your ardent advocacy of them deserves praise but don’t DAs and ADAs have clients too – the ‘People’?

Short answer: no, I don’t think Troy is being even a tad rough. I think his post is truthfully descriptive.

In criminal court you can fight for people against the government, or you can fight for the government against people. There is no third way. When DAs say they represent “the people” (they don’t say it in Texas), it’s a legal fiction; they represent the government. As agents of the government all they can do is reduce people’s freedom. Their only tools are imprisonment and probation. If a prosecutor wanted to be sure he wouldn’t hurt any people, he could simply not show up for work.
There are many prosecutors with good intentions, and more with good rationalizations. The common factor in prosecutorial intentions and rationalizations is this: they think that they are competent to say who should be free and who shouldn’t. The unfortunate belief that one person is somehow above (better than, more moral than, more valued than) other people is a prerequisite for prosecutorial work. Prosecutors’ targets are certainly not people for whom most people have any sympathy. Defender Mike Ramsey says (attributing the quote to A.E. Housman), “Who God forsakes, I defend.” One of Clarence Darrow’s biographies was entitled “Attorney for the Damned.” (Neither Ramsey nor Darrow was, as far as I know, ever a prosecutor.)

The late great Stuart Kinard (who, I am told, had been a dedicated prosecutor) described the work of a defender as “Protecting those of the Lord’s children who have fallen short of perfection from the wrath of those who believe they have attained it.” Believing one has attained perfection is a sad affliction. It is possible for a former prosecutor to overcome this affliction, realize that the difference between her and the accused is nothing more than a bad roll of the dice, and become a passionate defender of the less-fortunate.

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0 responses to “Us v. Them II”

  1. Awesome blog! I think I will cut&paste this particular post for the entire office (and PD’s office in rural Georgia).

    Keep-up the great work.

  2. Mark:
    Your response to Shannon Quadros comment to Us v. Them II is apropos. But let me add this thought. Prosecutors are often working under the mistaken premise that those who run afoul of the criminal justice system are normal ordinary responsible people, like themselves. They mistakenly believe these people will respond to “punishment” the way they would respond to punishment. The normal person is generally self-correcting, but people who do not self-correct are generally not responsive to punishment. The prosecutors (usually the young ones) don’t have a clue about this reality. Unfortunately, the judges continually sign-off on the “lock-em’ up” mentality because they fail to recognize the reality, too. Anyway, my two cents.

  3. Anonymous, thanks for the kind words.

    Stephen, I have Judge Challeen’s book on my reading list. You recommend it?

  4. David Feige has a great piece up at Slate in which he makes the point that Mike Nifong, the Duke Lacrosse prosecutor, is a scapegoat and that unethical practices like this will continue unabated after his disbarment.

    I believe it. In Nebraska, it was disclosed that a newly appointed County Judge falsified a police report when he was a prosecutor, (leaving out that part where the guy invoked his right to an attorney) and only confessed this to the judge when the cop refused his request to alter it so as to provide the defense attorney with a fabricated police report. Lawyers now still refer to this former prosecutor as “your honor” as he was given only a 6 month suspension.

    Some prosecutors and officers believe that because you’re a part of law “enforcement”, it shouldn’t be enforced against you. You know, the old “all pigs are equal, but some pigs are more equal than others” rationalization.

    Apparently when these cops and prosecutors took their oath to defend the Constitution, they issued signing statements to the effect that the Equal Protection Clause doesn’t apply against “good people” and that the Fourth Amendment doesn’t apply to “bad people.” (And they get to decide who’s who too.)

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