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The Shame of Doing Wrong

If you’re ashamed of what you’re doing, maybe you should reconsider doing it. It seems simple enough, right?

I frequently deal with people who have serious substance abuse and mental health issues. They are usually fairly aware of their problems. Although many are incapable of fixing them, I see complete denial less often than I would have expected before I began practicing law. The shameful rock bottom moment, typically the moment that led to them needing my services, is the sort of thing that makes most of them shudder. The embarrassment can help commit them to change, but it can also depress them, leading right back onto the destructive path that caused the problem in the first place. Whether awareness of the need to change leads to improvement or not, however, it is still present in most instances.

Many prosecutors I have dealt with lately are clearly ashamed of what they have to do as well, but they seem to lack the insight to realize they might want to change something. My guess about the cause is the fact that an individual being controlled by his personal demons has no one else to blame directly and is usually the primary person suffering the consequences, while a person who thinks he works for the good guys is doing the bad stuff to someone else and can justify all sorts of awful things by saying he was just following orders. There’s also the fact that many of them work in a culture that condones what they are doing. Like an addict living with a group of addicts who see no problem smoking a little meth first thing every morning, there’s no one to raise an eyebrow when they mention what they just did.

I was recently in a misdemeanor jurisdiction for a change of plea in a DUI case. Arizona’s DUI laws changed a little while back, and the first-time regular DUI statute went from requiring “twenty-four consecutive hours” in jail to requiring “one day.” The argument defense lawyers, myself included, have been using is that the implication of the change is that a day can mean less than twenty-four hours and judges can now give a full day of credit for time spent being booked after the initial arrest. In that particular case, the prosecutor told me when we met before the hearing that she had no position on the issue, suggesting I argue it to the judge. I asked her about language in the plea that specified no time-served credit, and she again encouraged me to argue it. As is often the case, the prosecutor stayed in her little room during the change of plea, electing not to be present.

When I asked the judge for time-served credit, she said she would happily give it to my client but that the prosecutor’s office would then withdraw from the plea. The judge explained that the prosecutors used to actually show up and say on the record that they had no opposition before later filing to set aside the plea, but that they now just hang around in their little rooms and do it later. The prosecutor, who knew that her office would not let the judge do what she suggested I ask the judge to do, was apparently so spineless that she was not even willing to tell me in person that her office was opposed to giving my client credit for time served and made it so it was guaranteed he would not receive it. She melted shamefully into her chair when I asked her afterwards why she didn’t just tell me about her office’s policy.

My clients squirm, reflecting on past mistakes and resolving to do better, but this prosecutor and others like her just keep on following orders they aren’t even willing to outwardly admit exist. Looking at the big picture, refusing to give someone time-served credit isn’t such a big deal, but what matters is the fact the prosecutor was uncomfortable with what she was doing. Whether it’s because she didn’t like the fact the legislature’s intent seems to be one thing and her office is frustrating that by making the exact opposite happen, or if she just doesn’t like telling people to their face that she wants them to go to jail and refuses to give them credit for being arrested, questioned, booked, and held even though she’d be begging for credit if she or someone she loved was the defendant, the fact remains that somewhere deep down she didn’t like what she was doing and did it anyway. I almost never hear from prosecutors, even the obviously ashamed ones, that they intend to change anything.

I encountered a worse example even more recently. My client was dying and faced a charge so trivial and ridiculous it should never have been a criminal offense. We were only asking the judge to allow my client to avoid a criminal conviction, something permitted by statute for the type of offense. The prosecutor made it very clear her office could not agree to that because it was against policy. When it came time to argue my motion, the coverage attorney looked at the case and clearly appreciated the fact his office’s policy was going to result in a poor old man to spend his last days branded a criminal for something stupid. He had the judge waive his presence during oral arguments rather than show up and argue for something awful. We got what we wanted.

I suppose I should be happy when prosecutors show a little by humanity cringing as they carry out some of the worst things they are ordered to do. After all, there are many who lack the perspective and compassion to do even that. However, I would still think that intelligent, educated people would more frequently do something about the actual problem instead of trying to minimize their involvement or not advocate as effectively as they could for something they find troubling.

Prosecutors may have the responsibility of a minister of justice and not simply that of an advocate, but that doesn’t get in the way of politics at the highest level. A thrown game down below may get the right result, but it’s a sign the system is broken when it only works when it doesn’t. Until the shame eventually reaches the top, that may be the best we’re going to get.

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