DA Traits: Arrogance and Viciousness or Humility and Compassion

I had an email conversation recently with a friend who’s a prosecutor. I wrote:

Our next DA needs to know that he or she is not part of a dynasty, is only temporary, is human and fallible, and answers ultimately to the families of the accused, who greatly outnumber the families of the victims.

He wrote:

I’ve felt compassion for defendants from DWI offenders to murderers. But their families? . . . . I don’t think I owe anything to a defendant’s family.

I tagged this as part of the problem with the Harris County DA’s Office. If the DA’s minions don’t see themselves as answering to the families of the accused as well as the victims, then the DA himself likely doesn’t see himself in that role.

But the DA, you see, is an elected official, and another word for the families of the accused is “voters.”Now the probable Republican candidate for Harris County DA, Kelly Siegler, spoke to the Houston Chronicle about the anticipated appointment of AUSA Ken Magidson to the interim position of Harris County District Attorney (Houston Chronicle):

In the capacity of being a caretaker, I am not sure what kind of changes he would be expected to make. . . . I think he would have the best interest of the office at heart.

No. At least, we should hope not. Magidson’s responsibility will not be to the Office. As Harris County District Attorney, he will be responsible to the people of Harris County.

If the best interests of the people of Harris County will be served by dismantling and rebuilding the Office, then the Office be damned.

This is not the first time this year that we’ve heard this attitude from Kelly. In her candidacy announcement she wrote,

The men and women of the Harris County District Attorney’s Office are the best in the nation at what they do. They deserve a leader who has been in the trenches with them. The people deserve a District Attorney who knows their way around a courtroom and will run this office with honor and integrity.

To Kelly, the interests of the people are secondary to those of the Office. That’s the arrogant attitude we’ve suffered for the last eight years; the Harris County criminal justice system is reeling already.To the Harris County DA, the Office has to be secondary to the people. Setting aside for now the question of what the people deserve (for they will undoubtedly get that), what the people need is a DA who is willing, if it becomes necessary, to fire everyone — to destroy the Office — to make it work better. I am not one of those who think it is necessary to destroy the Office, but the people need someone whose loyalty to the Office does not blind her to whatever difficult work needs to be done to restore public confidence.

Here’s the problem with being an elected DA in the 21st Century. You’re forced to prosecute lots and lots of people for victimless crimes. These people have families. Even the people charged with real crimes have families. So for every complainant’s family that lauds you, four or five defendants’ families revile you.

Twenty years ago the District Attorney might have been a heroic figure. But we’ve spent 20 years filling prisons, putting people on probation, and creating voters who, personally or through loved ones, have had bad experiences with the system. You may not have noticed this, but most of the people the Harris County DA’s Office is prosecuting are black or hispanic, by a greater margin than is explained by the fact that Harris County’s population is 63% minority (mostly hispanic and black). Black and hispanic voter turnout is on the rise.So the Harris County DAs have spent decades alienating their constituents by imprisoning their loved ones.

My uncle, a retired Baltimore cop, commented to me that while Baltimore used to have tough-on-crime elected State’s Attorneys (SAs), the current elected SA (according to The Google, Scott D. Shellenberger [edit per comments:] Patricia Coats Jessamy), sounded to him more like a defense lawyer than a prosecutor. A political survival reaction, no doubt, to the fact that so many voters have historically had bad experiences with the system.

Another word for the families of the accused is “jurors.” The defense bar doesn’t keep stats like the Office does, but I’ll bet that the Office’s stats show an upward trend in acquittals in Harris County. The anecdotal evidence that jurors (even here) are less and less inclined to cut the Office a break is too strong to ignore. In Baltimore, according to Collin, commenting on Wire Writers Speak,

. . . jury nullification is a daily happening. Around here, people joke about the army of mostly older black women (hereafter: church ladies) who will frequently vote not to convict no matter what. These people pay the toll for our hubris every day, and they clearly are sick of it. the only thing new here is that rich white folks are coming to realize what the church ladies already have.

That’s what we have to look forward to in Harris County if we don’t get a DA who treats the people — all of the people — well.

My prosecutorial correspondent wrote:

To me, that’s a no-win situation. They are usually so outraged at their loved one being charged that anything other than an apology will make them want to kill you.

I think there’s at least a scintilla of truth in that. The families of the accused don’t always know what really happened; even if their loved one’s prosecution is justified, they often don’t believe it. Even if the accused really did wrong, he’s probably lying to momma. But many people can tell the difference between arrogance and humility, between viciousness and compassion. Even a dog knows the difference between being stumbled over and being kicked. When a person does her job — even an unpleasant job — with humility and compassion, it’s hard to hold it against her.

Contrary to popular belief, humility and compassion are not weakness. Entirely to the contrary, they are signs of tremendous strength. Compassion doesn’t require that wrongdoers be set free. It’s possible to be humble and compassionate and still put people in prison. In fact, I’ve long maintained that the arrogant, vicous prosecutors are most dangerous to the innocent, but the humble, compassionate prosecutors are most dangerous to the guilty.

Lest this be seen as an endorsement of Pat Lykos: it’s not. I have no reason to believe that politician Lykos would behave with any more humility or compassion than prosecutor Siegler. (Not that either of them has much chance in the general election against CO Bradford.)

0 responses to “DA Traits: Arrogance and Viciousness or Humility and Compassion”

  1. nice little rant. minor quibble. patricia jessemy is state’s attorney for baltimore city. the fellow you mentioned is state’s attorney for baltimore county. easy mistake, as baltimore is one of perhaps 2 cities in the country that are not part of counties. baltimore county is the vast area north of baltimore city. over the last 40 years, it has been the camping ground of many of the white-flighters, but that process is now beginning in force in baltimore country, forcing people into the surrounding counties.

    You’re desperately lucky to have candidates who actually want the post of state’s attorney. Pat Jessemy is probably not on any top100 list of baltimore attorneys who deserve public office. Before he left office, current maryland governor and former baltimore mayor Martin O’Malley gave her a mammoth pay raise. I think she makes something north of 250k now, which is probly twice what her second in command makes. The reason for the raise? To convince someone [anyone] else to run for the position. The jury is still out on whether we’ll have a real contest next time around.

    Any defense lawyers out there who are thinking that this sounds great are very short sighted. Both the prosecution and defense bars have been ravaged by the massively tainted jury pool that has been created. What’s the point, after all, in being a good lawyer when the results are random anyway?

  2. Mark,
    I really like the new look of the blog. Much easier to read.

    The problem is the system. The DA has a legal and ethical obligation to sit down with the victim’s family and try and walk them through the process. To Empathize with their loss, calculate the odds of successful prosecution and be honest with them about what may happen. They do that in serious cases over and over before the trial is complete. And in many cases, do it for years afterwards in terms of parole hearings or in some cases, aniversaries of the loss of their children.

    The advocary system certainly doesn’t permit the DA to sit down with the family of the accused and do the same thing. I can think of one time in 30 years I was invited by the Defense to talk to the family of the accused. In that occasion, it was because the family didn’t believe the defense attorney.

    Don’t you think “arogance and viciousness” is a little harsh? More like we each get caught up in playing our own role in the game.

  3. “Don‚Äôt you think ‚Äúarogance and viciousness‚Äù is a little harsh? More like we each get caught up in playing our own role in the game.”

    When “the game” comes to mean more to actors in the system than the individuals caught up in it, that’s systemic “arrogance.” When someone’s “role” in “the game” causes harm to third parties, but the actors contend they do not “owe” any “compassion,” to the person harmed, that can only appear to those on the receiving end as “viciousness.”

    You’re absolutely right, jigmeister, that the system encourages prosecutors to “empathize” with victims’ families and gives them little opportunity to gain empathy with defendants’. (Though clearly this prosecutor believed he was not SUPPOSED to care – it wasn’t a lack of opportunity.) Since prosecutors should “seek justice,” though, not advocate for one or the other “side,” perhaps it’s worth discussing whether that trend (which has only fully blossomed in recent decades) is ethically inappropriate? When I see such blindered comments from working ADAs, I have to wonder.

  4. Do you really think that a rather incompetent police chief with no experience as the next DA is the solution to your perception that the system is a mess? How would that serve the public good?

    Someone else will have to make the decisions will he draws the paycheck. Obviously he cleaned up the crime lab and solved all the internal problems at HPD.

    If your argument is that Republicans have a difficult time getting someone elected, you may be right. I think its a shame that the democrats can’t find a competent candidate, there certainly are many defense attorneys (many of whom are minorities)that are competent. Frankly the answer is non-partisan elections for all judicial posts and executive posts where upholding the law is a requisite.

    Grits: All trial lawyers on either side will tell you that there are many elements of a contest involved in trials. The defense and state attempt to admit evidence they believe necessary to convince the jury of their respective positions or theories. The other side attempts to exclude it. I generally think that it helps the state to let everything in all the time offered by either side.

    If you want the system changed then do away with the advocarial system. Not sure you will like the alternatives. Maybe just a judge like Judy, or a grand jury without lawyers with no regard to whether a case is legally sufficient, or even better an expert panel of psychologists (have they ever agreed on anything).

    Constructive changes within the system to better insure the accuracy and fairness of the system should be welcomed by all of us, to include revision of laws concerning the punishment of victimless offenses.

    Mark, thanks for your help for Mack.

  5. Jigmeister, I’m not endorsing Bradford; I think the Republicans are in for a rough ride in November. Running Bradford against Rosenthal must have seemed like a good idea at the time. Now? Not so much.

    Great thinkers keep showing us how we should treat each other. There’s no reason prosecutors shouldn’t follow the same basic rules as everyone else. The adversarial system will not come apart at the seams if the judges, prosecutors, and defense lawyers all treat everyone, including the complainants, the accused, and each other, with compassion (not to mention respect and dignity).

    I would argue (and this is probably fodder for another post) that the government, when it was able to use the power of fear to persuade jurors and count on convictions (and votes), didn’t see the need to treat the other side well. The times, they are a-changin’.

  6. I tried a felony murder case a while back; the defendant had really laid a lot of harm on an innocent family. And his own family. During a week long trial, I had a chance to come across the defendant’s wife in the hallway. She and he, they had two small children. By small, I mean, 7 and 5, as I recall. And the defendant’s wife knew who I was, and that I was trying her husband for murder, and that I was asking a jury to put him in the pen for a long time.

    We made eye contact, and rather than acting haughty, I walked over to her, and extended my hand. She was considerate, and she shook my hand. I told her “I’m sorry for what you and your family are going through.” She nodded. I told her “I hope you understand that I wish I didn’t have to be in this situation, but if it was your mom who had been killed, I’d fight this hard for you too.”

    She nodded, and said she understood.

    Later, after the trial was over, her husband’s lawyer came up and thanked me for how I treated her. Apparently, she had told him about our encounter.

    It was a bad situation for everyone.

    I’ve always told my victims’ families that they need to consider that the defendants’ moms and dads, and wives and husbands, and kids, did not ask to be in this situation. And they were facing losing a loved one too.

    Damn it.

  7. Good for you, pro.v. I’m guessing the jury gave the guy a lot of time.

    Jigmeister, such a post is a good idea. I’m in favor of a properly-funded PD’s office; I think it would save the county money and improve the overall quality of indigent representation. I don’t know what else to say about it at this point.

  8. It’s very convenient, jigmeister, to say that the only way to fix the problem is to do away with the adversarial system. I’m sure you believe that stance absolves you and all attorneys for all responsibility for negative consequences from your actions.

    That said, you are wrong. The “adversarial system” in criminal law has an important distinction from civil law. Prosecutors are charged to “seek justice,” not advocate for an individual party in a dispute. It’s sad that simply to point that out, apparently, is viewed by some as wanting to “throw out” the adversarial system. I think that’s a red herring.

  9. Grits: You spell better than I can, but you are lawyer bashing, or maybe just prosecutor bashing, I am not looking for absolution of all my sins.

    But there is a basis distinction between the role of the prosecutor and defense attorney. That doesn’t mean that we aren’t cordial. I know that I, and that goes for ACHL too, have many friends that are defense attorneys. We go fishing together and occasionally socialize after work together. In trial against each other, we are normally friendly but aggressively putting forward the evidence. I’m sure that Mark will tell you that jurors come up to the trial lawyers after trials and tell us that after watching us in trial, they can’t believe how friendly we are towards each other in the hall.

    It is only natural for the family members to see the opposing lawyer as the bad guy. Not sure there is a solution to that.

    Certainly there are those on both sides that view each other as the enemy. I am not one of them, nor are most trial attorneys. I won’t name names, but perhaps you found one in Talula. I do think that enemy personality fosters the need to “win at all all costs”.

    It would be a grave injustice to assume that one size fits all.

  10. Of course you don’t need absolving, jigmeister. After all, as Mark’s correspondent said, prosecutors don’t “owe anything to a defendant‚Äôs family,” so if you accept that premise, why would they need absolution?

    I don’t think I’m “lawyer bashing,” but neither do I find comfort in what Doug Berman calls the “legal fictions” that allow the criminal justice system to inflict harm without accepting responsibility or acting to mitigate it.

    Put a father or mother in prison, and their kid is 6-8 times more likely than their peers to go to prison themselves, not just because of a bad parent (who is in prison) but for a host of well-understood psychological and socioeconomic reasons that are utterly predictable. But that’s not the system’s problem, says you and this ADA, even though ignoring it INCREASES crime in the long run.

    That amounts to the justice system chasing its tail generation after generation, and if you think acknowledging that reality is lawyer bashing, so be it. That said, it’s hard not to notice that instead of addressing my specific points, you’ve accused me of “lawyer bashing” and wanting to do away with the adversarial system – in other words, dismissing criticisms by attacking the messenger with red herrings and questioning my motives. Color me unimpressed.

    One more thing. Many recent court innovations including in Harris County – drug courts, mental health courts, etc. – function precisely be reducing the adversarial aspects of prosecution to seek best outcomes instead of maximum punishment. Have you similarly accused those judges or the ADAs working those cases of wanting to throw out the adversarial system, or is that cheap shot reserved for non-lawyers?

  11. I’m in my usual state of confusion. If we have an adversarial system, and Mark and his brethren are advocates for one side, but jigmeister and his ilk are charged to ‚Äúseek justice,‚Äù not advocate, where’s the adversity?

  12. I think there is a lot of ambiguity in prosecution, and none of it makes anyone happy. The thought of putting someone in jail for a long period of time for a “victimless” charge when they have small children is horribly sad. The flip side to that is that many defendants use their children as an excuse for less time, when they have no intention of spending additional time with their children upon release.
    Attorneys who deal with criminals are a cynical lot who have heard almost every excuse known to mankind. Here are some regulars:
    1. “I’ve been to the pen seven times, but not one of y’all ever tried to give me probation. I want probation now.”
    2. “I can’t do six months state jail, because my girlfriend is having our baby in five and a half months. However, I can take 12.44(a).”
    3. “I shot that guy in the aggravated robbery because of my drug problem. I’ll take some treatment and a dismissal.”

    I know I’m over simplifying, but sometimes statements like that will choke the compassion out of a prosecutor and replace it with even greater cynicism. Sadly, the Defendant’s families (AKA voters) are singing the chorus to the defendants’ songs.

    That being said, some of the most heartbreaking moments I’ve had in the aftermath of a trial (on violent crimes) is to see a parent going to prison for a lengthy time (let’s say for the sake of the argument that a lengthy sentence was appropriate in light of crime & criminal history), leaving small children, sometimes infants crying in the audience.

    There were plenty of moments that I hated my job as a prosecutor because of that. I had no doubt that the sentence was appropriate, but the effects on the small children of Defendants broke my heart.

    I’m all for compassion where a prosecutor can exercise it, but there are many occasions where that just can’t stop a severe sentence. Ultimately, that blame lies with the Defendant for committing the crime (assuming it was proved BRD), not the prosecution.

  13. And yet, AHCL, having concluded you are not to blame, does this system (personified by you and yours) still “owe nothing” to the children of incarcerated parents? You’ve explained how you sleep at night, but assigning blame isn’t the really the point.

    Sure, defendants may use their kids as an “excuse,” but that just doesn’t reduce one iota the harm caused to the kids, who are blameless in the crime but whom your actions punish probably worse than the offender (many adults don’t mind sitting out a jail sentence, but you can’t get back childhood years spent without a father or mother).

    The system is causing what economists call “externalities,” i.e., harms to third parties who don’t deserve it and are uncompensated for their loss. Saying “it’s not my fault” does remarkably little to help the blameless who are nonetheless harmed. It’s more of a defensive reaction than a public policy argument, and sadly conversations on this topic rarely get much farther than that.

  14. Grits,
    I’m not trying to absolve myself from anything. The whole thing just sucks to high heavens, and I agree with you that saying “it’s not my fault” doesn’t help the blameless.
    Maybe I’m too dense to come up with a solution to it. When Jigmeister said you were calling for the abolition of adversarial system, you disagreed strongly. But other than not punishing defendants with incarceration (and thus taking them away from their families), what are some real and meaningful suggestions?
    I’m not being facetious, I’d really like to know. Hell, I’d come up to Austin and go to Capital Hill with you, Grits, if we could find some meaningful way to protect kids of incarcerated parents.
    But as it stands right now, I don’t see those options.

  15. Mark I think this is your best blog yet. As someone who has handled cases all over the state, Harris County is the most unpleasant venue I have experienced. There are places where you may find 1 or 2 prosecutors who have lost touch with the concept of seeking justice but in that instance you can usually find someone else to work with or simply set it for trial.
    However in Harris County the hubris that exists among prosecutors is without comparison. I think in part it is because of the adverserial system.
    It is not the fault of the individual prosecutor. In fact I have long said that the prosecutors in Harris County are well trained and effective when it comes to trying cases. There are many people who work there that are very competent, kind, and wise. But they are outnumbered. The prosecutors I write of are the prosecutors are not well trained in using their discretion. They are not well trained in being a human being first and a prosecutor second. Many are fresh out of law school with no life experience and truly do not know what it means when people say “There but for the grace of God go I”. I know I didn’t at 26-27. Many of the others have known nothing other than the Office. That is a huge problem. These prosecutors feed off of the vibe and energy that surrounds them and flows down and around them. It is an attitude of black and white. A vibe of good vs evil. A pervasive feeling that we are God’s anointed, doing God’s will and damn it if the accused was in the wrong place at the wrong time- then he must be guilty. He must be guilty if the cops said he is guilty bc cops dont lie. Cops don’t manufacture evidence. So if something out of the ordinary is pointed out to SOME of these prosecutors by the defense lawyer, then instead of talking to the officer and dismissing the case, the zealouts instead opt to fix it before trial. It is an attitude of “I dont need to hear bc I already heard” (AHCL), not interviewing winesses until the day b4 trial, trying SJF’s, seeking felony convictions on 1st time offenders, insisting on felony convictions for trace amounts of narcotics not bc they should, but bc they can, a mindset that that a guilty verdict is the goal, a 90 plus% conviction rate, not that justice is served. It is a dangerous thing, this attitude. It is for ALL the wrong reasons. It is creating a whole class of 2nd class citizens by the hundreds on a daily basis. These newfound 2nd class citizens have family and friends who are appalled at what is happening. I saw a study on PBS that by 2050 half of the population would be in prison, on probation, or on parole. People are scratching their heads, wondering, and finally, acting so that our children will grow up in the greatest country in the history of the world the United States of America, and not Prison Planet, USA. I agree times – they are a’changing. It can’t happen soon enough.

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