From Isthmus, April 14, 2000

Cruel zealotry
Who’s to blame when prosecutors abuse their power? We all are.


       Whenever I try to understand the Dane County District Attorney’s Office, I think about Helen Gamble. The prosecutor on the hit TV show, “The Practice,” Gamble exercises power like an angry god hurling lightning from Mt. Olympus.

        In various episodes, Gamble orders a cop to commit perjury, tells a judge who rules against her to shove a pole up her ass, and berates a jury who reach a not-guilty verdict as “12 people too stupid to get out of jury  duty.” When she wants a store clerk to detain a suspect, she barks, “I don’t care what your policy is—do it or I’ll charge you with obstruction of justice.”

        On a recent episode, Gamble tricks a 15-year-old girl who stabbed herself in the abdomen as a method of late-term abortion into making incriminating statements. She assures the girl that her intention is to help, and lies about having had an abortion herself. “Trust me,” she urges, only to betray her, without contrition.

        What a monster.

        I realize, of course, that “The Practice” is just a TV show. But, based on what I know about the legal system, the character of Helen Gamble rings true. In the show, as in real life, her cruel zealotry never brings negative consequences--except, sometimes, not getting the convictions she seeks. For instance, a judge upholds the 15-year-old girl’s confession, agreeing with Gamble that the justice system “isn’t a moral arena, it’s a legal one”—and noting that courts have consistently allowed the use of trickery and deceit to con suspects out of their rights.

        The show also seems credible in that Gamble, for all her excesses, is driven by an overarching sense of responsibility and concern for the victims of crime. If she has become a monster, it is in part because society has made her one to do its dirty work.

        Prosecutors have always been the justice system’s most powerful and least accountable players. But in recent years their power has grown as tough-on-crime lawmakers and hang-‘em-high judges have enshrined vengeance as the justice system’s main ethic. At the same time, they have become even less accountable, as burgeoning caseloads have reduced the level of supervision they receive.

        In such an environment, it’s hardly surprising—indeed, predictable--that some prosecutors abuse their authority.

        Two weeks ago, I wrote about Thomas Champion, a mentally ill man who has spent nine months in jail, charged with multiple felony counts counts for not paying child support. Mental health experts say it would difficult if not impossible for him to work. To undercut this legitimate defense, Assistant District Attorney Robert Kaiser concocted a bizarre argument that if Champion couldn’t pay because he’s mental disabled, he had to plead that he was insane. Judge Robert DeChambeau,  shamelessly acquiescencing to prosecutorial whim, agreed.

        Champion’s attorney tried to get him released pending appeal, so he could pursue additional disability payments that would go directly to support his children. But Kaiser strenously objected. “My job is to punish people for crimes,” he fulminated. “This is not about collecting money for children.”

        Thus Kaiser laid bear a prosecutorial philosophy predicated on meanness. Never mind the intent of the child support law; focus only on how good it feels when you can use it to hurt someone.

        What a monster.

        And yet, I remember a 1993 Isthmus article in which Kaiser talked about how he wept for a two-month old baby boy whose parents he prosecuted for beating him to death. How many cases like this can a man handle before he becomes hardened and starts inflicting harm?

        We give prosecutors a button and tell them to deliver shocks every time a test subject screws up. Whose fault is it when they don’t exercise reasonable restraint?

        In Tom Champion’s case, the DA’s office beat a full retreat. Kaiser, after investing countless hours and wasting thousands of taxpayer dollars, dropped his attempt to undermine Champion’s defense and agreed to terms that may free him from jail.

        District Attorney Diane Nicks, as usual, refused comment. But in an April 6 letter to Isthmus (check Document Feed at http://www.thedailypage), she took responsibility—or credit, as the case may be—for pulling the plug on Kaiser’s cruel experiment. Nicks said that while she understood the argument Kaiser made and the court accepted, “I believe the correct interpretation of [the child-support law] is that mental illness may constitute the ‘inability’ defense, and that an [insanity] plea is not a pre-requisite for raising this defense.” She also disagreed with the “implication that some may draw from ADA Kaiser’s remarks that punishment is the only proper goal of a criminal prosecution.”

        Nicks, who is accountable to voters and vulnerable to public opinion, did the right thing, at some risk to herself. In this and other cases, she has shown courage and integrity. Yet the office she heads is still mired in moral muck.

        On the same day Kaiser was delivering his “My job is to punish” speech, another DA in another courtroom was trying to criminally convict a 15-year-old girl (see Jennifer Doe) of obstructing an officer for giving conflicting accounts of a sexual assault. The case was so weak that Judge Maryann Sumi dismissed it before the defense even took its turn. (The DA’s office refuses to comment, but Judge Sumi has agreed to make the case file available to Isthmus.)

        There are many cases I could cite, and many more I don’t know about. Nicks needs to set clearer and higher standards about what kinds of prosecutions have merit, and she needs better oversight. For example, in at least three cases the office’s gung-ho drug prosecutors filed criminal charges for possession of marijuana in amounts less than what Nicks announced would be handled as ordinance violations.

        Finally, Nicks needs to reexamine cases in which there is reason to believe that overzealous prosecutors have managed to convict the innocent.

        But Nicks is not likely to do these things unless there is public pressure, just as she didn’t intervene in the Champion case until it became a source of public embarassment, and the office started getting letters. It goes to show that the whole community—the media, citizens and elected officials—have a role to play in making sure our prosecutors do not act like Helen Gamble.

Bill Lueders (blueders@isthmus.com) is news editor of Isthmus.

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