Twenty-one years ago, the day O.J. Simpson was acquitted, I began my career as a federal prosecutor. I was 26—a young 26 at that—on the cusp of extraordinary power over the lives of my fellow citizens. After years of internships with federal and state prosecutors, I knew to expect camaraderie and sense of mission. I didn't expect it to influence how I thought about constitutional rights. But it did.
Three types of culture—the culture of the prosecutor's office, American popular culture, and the culture created by the modern legal norms of criminal justice—shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called "hard blows, not foul ones." But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly—nobody had to.
When I left the U.S. Attorney's office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I'm a defense-side true believer—the very sort of true believer that used to annoy me as a young prosecutor.
Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly. I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion—and even paranoia—from the wrong end. I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.
I even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants' constitutional rights. I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them. I saw them reject my claims that my clients' rights were violated because they were the government and my client was the defendant and that was their job.
My criminal defense colleagues who were never prosecutors themselves often assume that prosecutorial misconduct is rife because prosecution attracts authoritarian personality types. Although it is surely true that some are natural bad actors, my experience showed me that prosecutors are strongly influenced to disregard and minimize rights by the culture that surrounds them. Disciplining or firing miscreants may be necessary, but it's not enough: It doesn't address the root causes of fearful culture and bad incentives.
A Fearful Office Culture That Doesn't Encourage Introspection About Wrongdoing
The camaraderie I enjoyed at the U.S. Attorney's Office was the strongest and most rewarding that I've experienced in my life. Prosecutors learn the system together, acquire trial skills together, and face notorious defense attorneys and difficult judges together. They regale each other with stories of victory and defeat, of justice and injustice. They rely on each other to navigate impossible trial schedules or bounce back from errors. They are in this thing together.
This makes for a strong team. But it doesn't encourage introspection about wrongdoing. When a defense attorney asserts that a prosecutor violated a defendant's rights, that attorney is attacking your brother or sister, your comrade in arms, the person you know and trust. It's easier to believe that the accusation is merely tactical—a gambit to evade punishment for crime—than it is to believe your friend may have done wrong.
That tendency to dismiss claims of misconduct is encouraged by the frequency of genuinely bogus complaints. I was accused of prosecutorial misconduct twice, and it was nonsense both times.
Once a lawyer accused me of adding new bank robbery charges against his client in retaliation for his motion to suppress. In fact, I added the charges because a new fingerprint match came back after I got the case, and I was still enthusiastic enough to think that it mattered whether I convicted the guy of four robberies or five.
Another time a famous Kennedy assassination conspiracy theorist accused me of being part of a shadowy conspiracy with an airline to persecute his client, who was charged with interfering with a flight crew. I knew I'd done no such thing.
As a result, it became easy—natural—to view allegations of misconduct as something that defense attorneys cynically pursue for tactical advantage. In that frame of mind, prosecutors aren't inclined to scrutinize legitimate complaints too closely.
Prosecutions Driven by Shared Fear
Just as the brotherhood of prosecutors was premised on shared experience, it was also premised on shared fear. As a defense attorney, I fear that I'll fail my client and they will be unjustly imprisoned. But as a prosecutor, the culture taught me to fear that I'd make a mistake and a guilty defendant would go free to wreak havoc on society. That fear constantly colored my assessment of legal issues.
I remember being taught this fear 20 years ago, early in my time as a prosecutor. I was assigned to prosecute a rather pathetic bank robber. The man had been fired from his job and evicted from his apartment, and he went to the bank to withdraw the proceeds of a recent insurance settlement following a motorcycle crash. The teller told him that there was still a hold on his insurance check. The man lost control right then and there, told the teller he had a bomb, and demanded the contents of the cash drawer. Leaving his driver's license at the counter, he carried the few thousand dollars (far less than the balance of his account) to his car, drove to his former home, and waited in the parking lot to be arrested.
I rather timidly questioned my supervisor. Should this man face the weight of federal criminal prosecution? Aren't his circumstances unique, and unlikely to recur? Shouldn't we find another approach?
My supervisor—a decent, moral man—pointed me to the defendant's criminal record of drunk driving. If we let him go, he reasoned, do you want him out on the road with your young wife? What if he causes a crash and someone is killed because we were lenient?