Confessions of an Ex-Prosecutor
Culture and law conspire to make prosecutors hostile to constitutional rights.
Ken White | June 23, 2016
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?
So I took the case to trial, and the jury—functioning in an idealized way, as they sometimes do—hung 11 to 1 for acquittal. But I learned my lesson: As a prosecutor, I was responsible for what may happen if I failed to convict these people. The fate of their future possible victims are on me.
That camaraderie—that fear—colored my evaluation each time I assessed whether an action would violate a defendant's rights. The office culture helped make me.
American Culture Treats Prosecutors as Heroes
In October 1967, The Andy Griffith Show ran an episode in which Opie secretly recorded an accused bank robber in the town jail talking to his lawyer, and urged his father to take the tape as evidence. Sheriff Taylor erased the tape and admonished his son. "You bugged the conversation between a lawyer and his client. Now that's violating one of the most sacred rights of privacy." Andy Griffith played the scene firmly, like a wise TV dad and upstanding lawman. "Whether a man is guilty or innocent, we have to find that out by due process of law."
Griffith was the father we all wanted and the police officer we happily believed we had. In 1967, in the waning years of the Warren Court, that sentiment was still popular and plausible on a mainstream television show.
The mood changed quickly. Assassinations, race riots, a bloody Democratic convention, and law-and-order campaign rhetoric helped frame constitutional rights as impediments to justice rather than an essential element of it. Politicians like Richard Nixon helped convince America that the lawlessness they saw on TV was the consequence of the constitutional rights recognized and protected by the Warren Court.
By 1971, an equally classic scene about rights looked utterly different. In the movie Dirty Harry, an outraged district attorney harangues Clint Eastwood, playing title character, Inspector Harry Callahan, over his unlawful search of a crazed killer: "Does Escobedo ring a bell? Miranda? I mean, you must have heard of the Fourth Amendment!"
"Well I'm all broken up about that man's rights," counters Callahan, voicing the emerging sentiment. When Callahan is told that his illegal search means the gun is inadmissible at trial, he snaps, "Well then the law's crazy."
Eastwood plays the hero in this scene; the district attorney is played as a weak, appeasing bureaucrat and a judge as a doddering, detached academic. Just four years after the Andy Griffith episode, respect for rights is portrayed as ignoble.
Today, American culture remains much more Dirty Harry than Sheriff Taylor. When Americans think about criminal defendants' constitutional rights, they might consider the Bill of Rights in the abstract, but they're more powerfully moved by decades of Dick Wolf's Law & Order series and its spinoffs and imitators. Those programs occasionally show a bad cop or a rogue prosecutor or an innocent man railroaded by a dirty prosecution. But those are the exceptions. The overwhelming cultural message from American entertainment is that constitutional rights are barriers to justice—tactically erected impediments that the forces of law and order must overcome to reach resolution in 42 minutes.
Real prosecutors watch TV, too. They work in the nation that portrays their duties that way. And they enjoy the benefits. One of the first things they told us as rookie prosecutors was that we couldn't use our credentials to get special treatment: No flashing that seal to get into a restaurant or out of a parking ticket. They had to tell us that because it worked—because the culture teaches the public to admire and trust prosecutors.
That phenomenon pursues me 15 years into my career as a defense attorney—and, in a way, it even helps me.
Like most defense attorneys with my background, I market myself to potential clients as a "former federal prosecutor." I don't do that to signal loyalty to my old office or as a show of admiration for it. I do it because it's good business. It doesn't only signal that I know how the office works and have lingering connections there. Thanks to the culture, it makes potential clients charged with crimes trust me more.
Even as Americans are facing the ruination of their lives at the hands of prosecutors, even when they're innocent, even when they're being mistreated by the government, they're still skeptical of defense lawyers and trusting of prosecutors. They prefer to hire a former federal prosecutor because they don't want to think of themselves as someone who has to hire a criminal defense lawyer.
That's the power of culture. American culture relentlessly tells prosecutors that they are by definition the good guys. It tells them that assertions of rights are, at best, impediments to be overcome, and at worst cynical ploys by villains. It is tremendously difficult to ignore those cultural messages and give defendants' constitutional rights the attention they deserve.
Prosecutors Are Duty-Bound to Argue That Rights Don't Matter
Should prosecutors be able to resist office culture and American culture to uphold their oaths to defend the constitution? Yes. But there's an insidious third influence on them—the very law we want them to uphold.
American criminal procedure, as developed during the four-decade retreat from the Warren Court's recognition of defendants' rights, encourages prosecutors to argue that rights are irrelevant. The argument goes by genteel names like "harmless error" and "lack of prejudice" and "immaterial," and it is omnipresent in modern criminal procedure. As a prosecutor, it was my job on dozens of occasions to invoke those doctrines to assert that even if defendants' rights were violated, those violations didn't matter.
Take search warrants, for example. Under most circumstances, the Fourth Amendment requires police to get a warrant before they make forcible entry to your home search it. May police officers lie to a magistrate to get that warrant, or deliberately omit information that contradicts the evidence they offer? No, says the Supreme Court—that would violate your rights. But the violation only has a remedy if the lie is material—that is, if the warrant application, stripped of the lie or supplemented with the deceitfully omitted information, would no longer be enough to support probable cause. If you identify a lie that's immaterial, you're not even entitled to a hearing on whether it's a lie in the first place.
So when a defendant discovers that law enforcement agents have lied to get a warrant, a prosecutor has every incentive to argue that the lie didn't matter, that the evidence was strong enough without it to get the warrant. The prosecutor will be making this argument in the context of a search that did turn up incriminating evidence (the defendant wouldn't be making the argument if it didn't), which tends to bias judges towards upholding searches. After all, the judge thinks—wasn't the cop's suspicion proved right? Moreover, probable cause—the proof necessary to support a warrant—is a very relaxed and inherently subjective standard, requiring only a "fair probability" that evidence will be found. The practical effect is that law enforcement can lie in warrant applications with relative impunity, and it's a prosecutorial duty to think of ways to explain how those lies are irrelevant.
On the other hand, prosecutors are encouraged to think differently about lies by mere civilians. If federal agents lie about you to a magistrate to get a search warrant, the question is whether the lie did actually make a difference. But if you lie to federal agents, the standard is far less forgiving. The materiality of a false statement to the federal government is measured by whether it is the sort of statement that could hypothetically have influenced the government's decision-making, not whether it actually did. Thus prosecutors are trained to treat defendants' wrongdoing harshly and government wrongdoing leniently.
Nearly every type of law enforcement misconduct presents a prosecutorial opportunity—an obligation—to argue that the misconduct doesn't matter.
For instance, everyone knows that prosecutors are obligated to turn over exculpatory evidence. But when they don't, a defendant is only entitled to relief when the failure is prejudicial—that is, when there is a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Prosecutors are therefore encouraged to view exculpatory evidence not as something that should be turned over categorically, but as something that should be turned over if the prosecutor thinks it will be important.
Sometimes that approach is even reduced to writing. In 2012 the American Civil Liberties Union sued the Los Angeles County District Attorney's Office over its "Special Directive 10-06," which encouraged Deputy District Attorneys to make their own assessment of whether exculpatory evidence was "material" and withhold it if they thought it wasn't. The Directive even categorically excused prosecutors from turning over some evidence—for instance, by maintaining that evidence of police misconduct need not be disclosed if it was still under investigation.
This dismissive attitude towards rights continues on appeal. When prosecutors engage in misconduct, courts ask whether or not it was harmless—that is, whether "it is more probable than not that the prosecutor's conduct materially affected the fairness of the trial." Once again, the prosecutor's job encourages them to argue that their misconduct and the misconduct of their colleagues didn't matter, didn't make a difference, didn't change the outcome.
The same approach colors prosecutors' approach to defense attorneys. Criminal defense attorneys are supposed to vindicate their clients' rights. But fighting for a client's constitutional rights takes time and energy and meticulous attention. Lucky defendants can pay for attorneys who can devote that time and energy. Most defendants aren't that lucky. They have to rely on a system of overburdened and underfunded indigent defense that cannot possibly exercise the level of vigilance necessary to police the police in every client's case.
So they miss things. If an appellate lawyer discovers a violation of rights that the trial lawyer missed, he or she must argue that the constitutional error was plain—that is, that the error so affected the "fairness, integrity, or public reputation of judicial proceedings" that a "miscarriage of justice" would result unless the conviction is overturned. Prosecutors, on the other hand, must defend their convictions by arguing that any particular violation of rights wasn't "plain," that it didn't impact the fairness or integrity of the proceedings. In other words, they're duty-bound to argue that the violation of rights, if it occurred, didn't matter.
Of course, a defendant can challenge a conviction on the grounds that his or her attorney was ineffective in failing to recognize and challenge a violation of constitutional rights. That's common in habeas corpus motions. But showing ineffective assistance of counsel doesn't just require a demonstration that a lawyer's efforts fell below professional standards. A defendant must also show that the failure caused prejudice—that is, that it was "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." So once again, a prosecutor responding to an ineffective assistance of counsel challenge to a conviction must assert that the unredressed violation of rights just didn't matter.
Lawyers shape arguments, and arguments inevitably shape lawyers. A persistent professional obligation to argue that violations of constitutional rights don't matter can't help but influence how prosecutors look at rights, and treat them.
So instead of serving as the rules of the game, the underlying assumptions about how a case should proceed, rights become something to be managed and minimized. They become merely rhetorical, figures of speech rather than principles.
As a young prosecutor I found myself analyzing each constitutional question not in terms of whether the defendant's rights were respected, but in terms of how I could show it was irrelevant that they weren't. I didn't make up that approach out of a black heart. I learned it from the legal culture.
Legal Culture Can Change
Culture has deep roots, but it can change.
There's been a recent surge of attention paid to prosecutorial misconduct. Alex Kozinski, a maverick judge on the United States Court of Appeals for the Ninth Circuit, has sparked a judicial and academic movement to scrutinize prosecutors and impose previously rare consequences for their violations of defendants' rights. Judge Kozinksi and others like him have refused to accept the status quo of broad deference to prosecutors as the way the American criminal justice system ought to work. Some prosecutors—usually in progressive enclaves—have begun to talk openly about reforming their offices and taking methodical steps to respect defendants' rights. The America media, never before a reliable ally of defense attorneys, has begun to cover prosecutorial misconduct with the sort of tenacity it requires.
I'm glad that more prosecutors are facing serious consequences for violating the rights of defendants. I'm happy when jurists like Judge Kozinski names and shames them in the public record, just as I would have been resentful and defensive twenty years ago. I'm happy to see the media view prosecutors as an institution requiring scrutiny rather than as a source for tips and quotes. These are positive developments.
But prosecutorial misconduct is a problem that won't get better because a few judges or a few reporters talk about it. It will require effort. It will require principled prosecutorial supervisors to set an example and frame constitutional rights as the rules, not the obstacles. It will require American citizens to take civil rights seriously—to frame our views of them based on the constitution and not based on a popular culture that scorns them. It may even require us to reevaluate how our legal system treats violations of rights, and develop a doctrine more sophisticated than "no harm no foul." Culture permitted America to develop the notions of personal liberty and the rule of law in the first place. Culture redeemed can protect those notions again.
Ken White is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles. He blogs about free speech and criminal justice issues at Popehat.
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