Over at Vox.com, Dara Lind has posted the shocking “One chart that puts mass incarceration in historical context.” Lind painstakingly sifted through Bureau of Justice Statistics reports to create a graph of U.S. prisoners per 100,000 of population, from 1880 to 2013. Focusing on those sentenced to prison (i.e., for more...
I made a thing for Radley Balko at the Washington Post on Qualified Immunity. Some people had questions about it over on my comic, which was about something completely different. One of the WaPo pages mentioned the elimination of the KKK under President Grant. Wait I thought that the KKK...
Prompted by a tweet from Scott Greenfield this morning, we read a short editorial the New York Times did a couple of days ago, arguing that federal and state prosecutors should adopt open-file discovery policies, in order to limit Brady violations and promote justice. We’d missed it the first time...
This morning’s WSJ has a short article with a long headline, “Manhattan DA Is Put on Defensive: Vance’s about-face on bail in sexual-assault case follows two high-profile court defeats for office.” The blurb from the website’s front page summarizes the story pithily: “The newly surfaced problems in the sexual-assault prosecution...
The Northern California Innocence Project at Santa Clara University School of Law has released a troubling study of prosecutorial misconduct in California. The report, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009,” opens by pointing out that of course the majority of prosecutors behave ethically, but then it...
Every defense attorney has their own favorite metaphor for what we do. Some talk of it like a street fight, envisioning a slugfest with the cops or the court or DA (or all three). Others speak as if it’s a poker game (with the other side usually holding all the...
“Nathan, when you become mayor, I’m gonna be the first volunteer for your security detail.” This was a detective speaking, back when we were an ADA in the Manhattan DA’s office. My office, as usual, had about five cops in it. I liked this detective, and asked how come he...
The past couple of weeks, there’s been some discussion about a recent paper by Adam Gershowitz and Laura Killinger called “The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants”.
The authors argue that prosecutors in large jurisdictions often have “excessive” caseloads, so they don’t have enough time and resources to devote to each case. And injustice results. Rushed and overwhelmed, they fail to spot cases deserving special treatment, such as more lenient pleas or drug-court diversion. They don’t notice Brady evidence favorable to the defense. Weak cases don’t get dismissed. Jammed up caseloads cause delays that make defendants take pleas to time served, just to get out of jail. Nobody has the time to spot innocent people, who wind up getting convicted in the rush.
One of the better posts was by Scott Greenfield yesterday at his blog Simple Justice, where he makes the point that delay is actually a good thing for the defense, thanks to speedy-trial rules. More importantly, he points out that prosecutors actually have the discretion to do what it takes to make their caseloads more manageable. To get rid of cases, they can offer lower pleas, dismiss them, do an ACD/DP, what have you. There are easy options to put a case on hold while investigating whether a defendant is deserving of special treatment.
But we haven’t seen anyone yet make the blazingly obvious point that prosecutors aren’t likely to do any of that if the defense attorney doesn’t bring it up, first.
So we’re going to say it now. We defense attorneys can’t just sit there and hope that the prosecutor does the right thing. We actually have to get off our butts and make a case. Good defense lawyers know this, and much of their advocacy involves convincing the prosecutors to exercise their discretion in the client’s favor. Even the best prosecutor only knows what’s in front of him. He’s made up his mind about what this case is worth, based on the evidence he has. The only way to get him to change his mind is to give him new facts, or a new way to look at the facts.
So if a client might be innocent, and the prosecutor doesn’t realize it, then the defense attorney’s job is to bust his ass to make sure the prosecutor figures it out. Ditto for clients who really deserve a lighter-than-usual sentence, or a creative sentence, or treatment instead of jail. This has nothing to do with prosecutor caseloads, and everything to do with defense counsel. Sorry, but it’s the truth.
Beyond that, we still don’t see much cause-and-effect between prosecutor caseloads and the problems decried by the paper’s authors. That’s just not the problem here. And lowering caseloads or increasing resources won’t fix the real problems.
The best prosecutors do try to screen out the innocent, the weak cases, the special cases. Oddly enough, they are pretty common in some offices with the heaviest caseloads. The worst prosecutors don’t seem to want to exercise their discretion at all, or even recognize that they have been given it for a reason. And they’re common enough in offices with hardly any caseload to speak of. In our experience, prosecutor caseloads have zero effect here. The quality of the individual prosecutor, and the culture of their office, has everything to do with it.
So the trick is to get better, not more, prosecutors. How do you do that?
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We apologize to our loyal readers for the unusual delay between posts. We’ve been on trial, and you know how that goes. Trial is all-consuming. And then there’s all the work that piles up in the meantime. And the wife and kids need a token appearance from us once in...
I love reading Scott Greenfield’s blog Simple Justice. He posted a good one the other day called “Another Prosecutor Loses Her Virginity,” about a former prosecutor, Rochelle Berliner, now a defense attorney, who just came to the realization that cops sometimes lie. Her epiphany was published in Saturday’s New York...
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