99.9996 Percent Of Prosecutors Are Better Than That

I wrote last week about the first of a great series of articles at the Arizona Republic tackling the subject of prosecutorial misconduct. A surprisingly touchy and defensive group, apparently, some of the biggest-name prosecutors in the state shot back with a group response entitled “Hard-working prosecutors don’t deserve this ‘hack job.'” It went on to read, “Attorneys: Let’s set the record straight, in the interest of justice.”

As much as the sassy title probably drew an “Aw, snap!” from every prosecutor whose delicate feelings were bruised by the mean old Arizona Republic’s thought-provoking article, the response from prosecutors didn’t really have much going for it after the title. In fact, it lost me in the first paragraph with this ridiculous statement:

A prosecutor’s first duty is to justice, so we must respond.

You see, justice is the name of the trick pony that some prosecutors like to trot out whenever they need an excuse for doing whatever it is they want to do anyway. “A prosecutor’s first duty is to avoid butthurt, so we must respond” wouldn’t have had the same ring to it, but it surely would’ve been more accurate. After all, what does arguing with a journalist have to do with justice? Since when does justice require that the public have a favorable opinion of a certain group of public servants? And if prosecutors’ duty to do justice includes correcting public misinformation, why weren’t all these prosecutors coming out in full force to do justice with their responses when Andrew Thomas was abusing his power and causing innocent judges and politicians to be dragged through the mud in the headlines day after day? Why is it that they never came out to set the record straight when the news was incorrectly reporting about what various wrongfully or unjustly convicted criminal defendants had supposedly done over the years?

The next paragraph was my favorite:

The criminal justice system is front-loaded with so many protections that it works perfectly in 99.9996 percent of the cases. Had the series offered more facts like this one, perhaps the smear-over to all prosecutors from the ostensible focus on death penalty litigators would not be such a worry for the public’s faith in the system.

That may be the most idiotic thing I’ve read this year, and it’s been a heck of a year for reading idiotic things. I’d like to think they had to have at least giggled a tiny bit presenting as a “fact” the absurd statistic that the system has a 99.9996 percent success rate at achieving perfection.

What even counts as perfection? Is the system working perfectly when someone spends months in jail only to be acquitted by a jury? What about when an innocent person goes to prison for years only to later have the conviction overturned? Is it perfect simply because it gets the right result eventually? Is it still perfect when unlawful sentences are served but later overturned? What about when the wrong number of days of time-served credit are calculated, making only a minor difference, or when judges have to issue orders nunc pro tunc on little things after only minimal damage is done? Is it only imperfect when the system acknowledges it’s imperfect? Wouldn’t it still be pretty perfect then? To claim perfection is either the pinnacle of arrogance and ignorance or simply the use of a meaningless word coupled with a made-up statistic to confuse people because it only means the system works perfectly because it’s supposed to get a result and does in fact get one 99.9996 percent of the time.

They go on to explain how it’s tough being a prosecutor:

Prosecutors are probably the most watched profession. Standards exist at every level: probable cause for arrest, charging based upon admissible evidence likely to convict, reasonable doubt at trial and multiple appeals.

I’m sure the most-watched claim isn’t a make-believe “fact” too. It can’t be, right? If only professional athletes and celebrities knew how tough it is to be a watched prosecutor! After all, there are standards for them. They have to make sure there was probable cause for the arrest, though the word of officers who all claim to have had probable cause when they made the arrest almost always suffices. Prosecutors can only charge based upon admissible evidence likely to convict too, though their word and some officer’s word almost always suffice there as well. Those multiple appeals in a system that prizes finality, with the same higher courts that love deferential standards and harmless error and in some cases even upheld the convictions of people who have since been exonerated, sure are a burden on those poor prosecutors. Life is tough, what with all the watching and standards and what not.

Then there’s this paragraph:

The system is designed for the defense in that there are ethical rules that apply only to prosecutors. The state faces challenges every step of the way: grand jury for indictments, defense counsel at trial, judicial rulings from the bench, appellate courts, interest groups and the public who have instant response and elect the top prosecutors in each jurisdiction.

Claiming the system is designed for the defense has to be joke, and it’s hard to say if citing the grand jury here would be funnier if they were trying to use it to show how watched they are (it’s a secret proceeding) or if they were trying to make it seem like getting a grand jury indictment isn’t the easiest thing on earth (ham sandwiches, beware). The system also excuses all kinds of terrible defense lawyer performance, making “defense counsel at trial” not such a tough part of the crucible of meaningful adversarial testing in far more cases than you’d probably think. Mix that with “judicial rulings from the bench” where the bench is overwhelmingly occupied by ex-prosecutors and “appellate courts” that aren’t that different in composition, and I’m not real convinced the system is designed for much other than shuffling people through as smoothly as possible. I suppose you could argue that’s “for the defense” if by that you mean “for lazy defense lawyers who don’t want to do their job and would like to not get hammered for their poor performance,” but I don’t think that’s what they meant.

I also enjoyed this:

At least 22 outside groups constantly pick the criminal justice system apart. One, the Arizona Justice Project, like the California Innocence Project, catalogued alleged misconduct. Allegations are not facts; what proved out in both states is that most of the allegations are unsupported. The occasional violation is more likely a harmless error, the result of the human trait of passion.

It’s really funny seeing the old “allegations are not facts” thing from a group of people whose jobs involve them charging and often detaining criminal defendants based on allegations alone. Shortly after arrest, the officer’s Form IV and its allegations let the prosecutor at the initial appearance convince the judge to keep the defendant in jail. After that, the allegations in the complaint a prosecutor files continue the defendant’s imprisonment. The allegations are certainly presented by the prosecution’s witnesses as facts at a preliminary hearing or before a grand jury too. When the defense challenges the allegations in court and in plea negotiations, though, the vast majority of prosecutors the vast majority of the time take the exact opposite of the “allegations are not facts” approach. Only when the allegations are against them does that apply, I suppose. The same is probably true of the forgive-and-forget approach they apparently encourage in the rare situation where prosecutors both mess up and get called out for it. How many people have they convicted and sent away for drug or regulatory or other victimless offenses that amount to harmless error? How responsive would they be to the argument that my client’s was just an “occasional violation” or simply “the result of the human trait of passion?” What do they prosecute that isn’t one of those two things?

What’s sad is that there are a huge number of prosecutors whom I respect tremendously. I even had cases against a couple of the column’s signers before they hit the big time, and I think highly enough of them that I’m disappointed they would put their names to something so ridiculous. When the New Times publicized sketchy things happening with some defense lawyers, the defense bar as a whole didn’t come forward with official-looking condescending drivel trying to repair our image. Although there are surely those among us who would have liked to do it, I’d like to think defense lawyers as a whole aren’t so conceited and self-righteous to feel the need to correct every little public slight against us. I’m sure all the great prosecutors I respect are the same way, and I’m embarrassed for them because a group that purports to represent them, a group that should certainly know better, would publish something so badly done and so childishly offensive. Prosecutors as a whole are far better than that letter would suggest, and the real hack job smearing prosecutors is the misguided response of their own.