» DUI, Practice in General, Prosecutors » The Makings of a Great Tragedy

The Makings of a Great Tragedy

I once received very wise advice to take caution when writing about things close to home. I took it to heart. Years of being told “don’t shit where you eat” didn’t sink in, I guess, but that more subtle, specific advice did. Things far away aren’t so clear, however, so they may be a different story. Circumspection be damned?

If I lived in Texas, I would have had a little more background when I read this post by Murray Newman. I was skeptical about what he perceived as a double standard even reading it without context, but that by itself didn’t seem worth a post on my part. When a prosecutor gets charged and defense lawyers don’t just rant about the presumption of innocence, I hardly see it as cause for concern. We’re still human, right? Defense attorneys live in the same world as everybody else, don’t we?

I once got hammered for writing about a colleague after reading he’d been charged, and I left the mess feeling like “presumption of innocence” was a chorus sung outside of court only by those people with some skin in the game. Everyone feels outrage when they’re attached to an accused. Secret grand juries, presumptions against bail, and mandatory minimums don’t seem so bad when you don’t care about the person who bears the brunt of the rules. Otherwise, who cares? It’s all about fairness when you’re linked in some way to someone on the receiving end, but it doesn’t matter every other time.

In a post so perfect I couldn’t possibly add anything, Mark Bennett at Defending People explained why there is no double standard. Lack of contradiction isn’t the only thing that matters, however. There are additional, fundamental reasons why Murray’s post misses the mark, and here’s the passage that bothers me most:

The irony of the situation is stunning, because as members of the Defense Bar celebrate and rebroadcast the arrest of a prosecutor or police officer, they are abandoning the most sacred principles of the Constitution.

First, they are presuming them guilty.

And second, they are relishing in the idea that they should be treated more harshly under the law because they are different.

That last part is where I get the wind knocked out of me. It’s also where circumspection ties in. I’m going to be far less artful in my approach here than the others I cite, as the gravity of the situation as I see it depends on the full picture being crystal clear.

Here’s what’s happening, for the less-than-attentive: a prosecutor, one who once argued for a life sentence in a drunk-driving case, was just arrested for DUI. This comment from him in that life-sentence DUI case, which Mark quotes to start his post, is absolutely stunning in light of his current predicament:

Prosecutors Lester Blizzard and Kayla Allen, however, asked Ellisor for life sentences to send a message to anyone who would drive while intoxicated.

To send a message to anyone who would drive while intoxicated.” If I could emphasize that more, I would. Should I put it in all caps too? “TO SEND A MESSAGE TO ANYONE WHO WOULD DRIVE WHILE INTOXICATED.”

Maybe they were misquoted, as news outlets rarely get it right with criminal cases, but that doesn’t matter much. Presumption of innocence and the fundamental role of a criminal defense attorney aside, this just isn’t a double standard in the traditional sense. This is something far greater. This is the kind of irony from which great tragedies are written. Mark does it justice, but I just can’t get over how amazing this is.

If this is indeed a double standard, it’s a justified one, if such a thing exists. This prosecutor is different. I do indeed relish the idea that this man, if guilty, should be treated more harshly under the law. I relish that because this man, if guilty, is different. I’m also saddened because cruelty and ignorance, when applied to one who himself has sought institutional cruelty and ignorance, is no less cruel or ignorant. I really am overwhelmed by this situation, and I’m having trouble grasping how Murray’s response can possibly make sense.

What about a defendant who is treated more harshly after being convicted of child rape because he was convicted of committing the offense at a time when he was entrusted with the child’s care after she had been raped by someone else? Would Murray view that as a double-standard? My analogy is crude, to say the least, but not as far off as it might seem. Isn’t someone more culpable than he would otherwise be for doing something if he was endowed with and had in fact exercised incredible power against others in order to prevent them from doing the very thing he was convicted of doing? Do additional circumstances beyond his control change things? Do they make him different from the supposed monsters he once fought?

This isn’t something that would ever cross my mind if 99.9% of prosecutors I know were arrested for DUI. I would normally rant against the DUI laws and other bullshit legislation after hearing they were charged. The system is unbelievably unfair when you don’t sign up for the insanity. If you wrote it, enforced it, or upheld it, you won’t see a lot of sympathy from me when you break it, if in fact you broke it. Even if you didn’t break it, if you supported the laws that made you likely to be wrongfully convicted of breaking it, you won’t get any sympathy. But then again, depending on the case, I probably could put my feelings aside and give my heart to the representation.

The situation is remarkable, obviously. It’s like anti-gay Republicans getting busted for rest area blow jobs and tax-and-spend Democrats getting busted for hiding assets from the IRS. It has all the makings of a great tragedy. It is a unique situation. It is something I will think about for months, maybe years to come. My feelings about the situation, however, are not evidence of any kind of double standard. Of that much I am sure.

Filed under: DUI, Practice in General, Prosecutors · Tags: , , , , ,

5 Responses to "The Makings of a Great Tragedy"

  1. Lee Stonum says:

    So Scott has been saying, with increasing force, that I need to come here. I’m a bad listener. Glad I finally got here.

  2. Jon Cooper says:

    Sadly, there is no law against hypocrisy…yet.

    But who knows, it may come. Perhaps Rome will finally encode the prohibition in Canon Law and the way will be paved for (certain of) our Surpremes to validate it once the test case arrives. Anyone want to take a stab at writing up a draft? I am sure a legislator could be found to sponsor the measure, it would be wildly popular.

    Greetings from a devoted reader.

  3. Matt Brown says:

    Doesn’t bother me at all, and thanks for the kind words.

  4. John Kindley says:


    As part of my New Year’s revisioning of my blog, I’ve decided to do more linking to posts that say what I couldn’t have said better myself, as opposed to not linking to or saying anything about them at all because I couldn’t have said it better myself and have nothing to add. This post is such a post to which I’ve linked without any commentary. (Incidentally, you did in this post have something very important to add to Bennett’s post.) But in doing so I copied and pasted an awful lot of your post. It’s occurred to me that some blawgers might understandably take issue with this. Let me know if you do. In the future I’m going to try to make my excerpts shorter. But in this instance everything I copied and pasted seemed eminently worth highlighting.

  5. […] a post so perfect I couldn’t possibly add anything, Matt writes: If I lived in Texas, I would have […]

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