Sunday, February 17, 2008

To Defend or Not to Defend?

"How do you live with yourself?" "How do you sleep at night?" "You need to ask God for forgiveness."

It was about four or five years ago when I got all of these questions hurled at me by several people, along with the intimidating "death glares" that they were all giving me.

Now, what had I done that was so horrible?

I was a prosecutor, and I had just gotten a life sentence from a jury on a man who had systematically raped his daughter over a lengthy period of time (which had started about the week he had gotten out of prison for a similar charge, by the way). Although there were meds in the case, and the jury had no problem believing the Complainant, her family had stood by the Defendant.

The girl ended up in foster care.

It was a sad case, and I was feeling pretty damn good about the verdict, to tell you the truth.

And then I ran into the Defendant's family in the hallway. They all had their things to say.

I had a couple of choices available to me:

1. I could try to justify my actions to them, although they would never listen to me.
2. I could apologize to them, even though I knew that the son-of-a-bitch deserved every last minute of a life sentence.
3. I could completely ignore them, and walk with my head down to the elevator.
4. I could have screamed at them all for being lousy pieces-of-crap who had turned their back on a little girl while her own ex-convict father was raping her on a weekly basis.
5. I could look them all in the eye as I confidently walked to the elevator, without responding to a damn word they said.

What do you think was the best course of action?

Since I had so much fun with my earlier Parable this month, consider this my "Analogy".

What's the best course of action for Kelly Siegler on the campaign trail? What should she do when people tell her she works too hard to get a conviction? What should she do when people say that the D.A.'s Office is full of racists? What should she do when she knows that her detractors aren't interested in a damn word she has to say (they just want to scream out their irritations with her)?

I would submit to you that in my situation, the choice of # 5 was a no-brainer.

In politics, the answer isn't quite so clear.


anonymous c said...

It was absolutely the right choice, AHCL! What a hero you and the other ADAs are and have been! A hero in the truest sense of the word. Thank you for defending that little girl and for giving her the justice that she deserved.

Maybe people like PJ can’t see the important work that you do for victims, but I, and most others, can. He/she may not “ever expect to be a crime victim in (his/her) lifetime”, but I’d submit that most people who end up victims of crime don’t “expect” it.

It’s really easy to talk that kind of smack on a blog, isn’t it? ADAs should have no feelings about the victims, right? They shouldn’t recognize that they’re pursuing Justice for an ACTUAL individual…a victim with a name. They should be cold, steely, robots serving the State because, after all, the State has a “monopoly of violence” (A monopoly of violence?!? Lord!). I suspect that, if PJ’s vision of prosecutors as emotional eunuchs, doing the State’s bidding with blinders on, was shared by everyone, very few young lawyers would ever sign up to take on that role.

It is rhetoric and legalese vs. blood, sweat and tears reality.

DA Worker said...

I think the keys are respect, compassion, and responsibility.

Respect – for all involved – for ourselves, the courtroom, the system, the complainant, his or her family, and the defendant and his or her family. That doesn’t mean we like everyone, or that we’re wimps, or not ready to fight. It just means we act like grown-ups and use common courtesy, you know the things our mothers tried to teach us.

Compassion – realizing that everyone in the courtroom is going through something hard. This one is a little tougher. In my job working with victims and their families, a murder victim’s brother reminded me of it a while back. While on a break during the trial, the brother asked me if the defendant’s family “got somebody like me” to help them.

I was stunned - what amazing selfless compassion. His sister was dead, killed by the defendant – and he was concerned because the defendant’s family was also suffering and they needed someone to help guide and support them through the trial. That simple and beautiful act of compassion by the victim’s brother is truly one of the pinnacle moments I’ll always remember.

Responsibility - Here’s a shocker – we’re not perfect. We’ve all said things we wish we could take back – in the heat of emotion – just because we’re not having our best day – or maybe just because we were being a jerk and in a bad mood.

That’s where the responsibility part comes in - we have to admit it first to ourselves, own it, acknowledge it, apologize maybe, move on, and keep trying.

PJ said...

My reputation proceeds me.

Anonymous C, doing justice for the little girl would have meant protecting her from being victimized in the first place. This isn't accomplished through prosecution and imprisonment after-the-fact but through providing social resources on the front end that can greatly reduce the occurrence of criminal acts. Our failure to do that is a social and political failure. But let's not pretend that anybody whose politics does not support the provision of social resources to actually reduce the occurrence of crime (and hence creation of victims) is an advocate for victims.

When prosecutors become passionate advocates of victims, they unfortunately often lose sight of justice, including their ability to rationally assess evidence. A prosecutor's sight should never be on a defendant, but on evidence. And they should never form judgments about guilt--it's not their job. (Indeed, it isn't defense lawyers' job either, whose focus also should be on evidence (as well as ensuring a defendant's rights are protected).) Lawyers are really nothing more than vessels through which evidence should flow. At least, that's the role they are supposed to play.

Behind every wrongful conviction lies a prosecutor who was positive about a defendant's guilt. Indeed, we saw this with Josiah Sutton when, even after his exoneration and despite incontrovertible DNA evidence proving his absolute innocence, Chuck Rosenthal "stood by the victim." Really what he did was commit a crime himself and created a new victim (Josiah) who he then proceeded to victimize over and over again by refusing to admit his innocence (against all evidence, mind you), unjustly casting a public cloud of suspicion over his head.

This isn't to say that victims shouldn't be listened to. But they should not be unduly deferred to. They are neither a prosecutor's client nor its constituency (although they are a subset of its constituency, hence the first sentence of this paragraph).

I firmly believe that the mindset you promote is disastrous for criminal justice and will cause infinitely more profound injustice than justice.

jigmeister said...


"And they should never form judgments about guilt".

You don't think the D.A. ought to evaluate the evidence to be satisfied of guilt. Leaving victims out of the equation for a moment. Prey tell on what basis should the decision to prosecute be made--Dice??

PJ said...

A prosecutor can evaluate evidence to make a legal determination of whether it's sufficient to withstand a directed verdict, i.e., that there is some evidence as to each element of the offense that a jury could rationally believe. Isn't that the only judgment a prosecutor has to make before taking it to a decision-maker (which is the jury, not the prosecutor, fyi)? Besides, it's quite easy to assess evidence without forming an opinion as to guilt. I do it all the time. You can have 'strong' cases and 'weak' cases and nevertheless remain agnostic. After all, you aren't being paid to judge; it's not in your job description.

A prosecutor with a firm conviction in a defendant's guilt is an extremely dangerous thing. Indeed, there is a well known psychological phenomenon known as confirmation bias that helps explain why. (For an interesting practical demonstration of how the 2-4-6 problem mentioned in the article works, see this psychology professor's classroom experiment.) Once a prosecutor has decided the question of guilt, the processing of all additional evidence is very likely to be skewed. Evidence that is inconsistent with guilt will be more likely to be ignored and only evidence that confirms the bias is likely to be considered relevant and entertained. In the legal context, it will also considerably influence any future credibility judgments.

And by the way, the word "bias" does not necessarily mean the original decision was biased. It may have been fairly made based on the evidence at the time. But once a decision has been made, a bias is thereby created that a person tends to seek to confirm. This is the reason we instruct juries not to begin deliberating until after all the evidence has been heard and we try so hard not to allow people who have made premature decisions on the jury.

To reduce errors, it is helpful to reduce judgments. A good rule of thumb is if you don't have to make a judgment, don't make a judgment.

Take it for what it's worth.

(And I just realized I typed 'proceeds' instead of precedes' in the first sentence of my first comment. How embarrassing.)

PJ said...

Oops. I messed up that second link. Should read: For an interesting practical demonstration of how the 2-4-6 problem mentioned in the article works, see this psychology professor's classroom experiment.

Anonymous said...

PJ... Got a feeling you are a member of, " Oprah's book of the month club" You are living in a liberal's fairytale bubble if you think your theory of preventing crime before it happens is the cure for not having victims. Perhaps a little research, or er, a lot of research say starting back around four thousand years ago would give you a more profound insight. Geesh.

Ron in Houston said...

Child abuse is one of the worst crimes. It's bad because if the person is guilty then they deserve punishment more than just about any other defendant.

It's also one of those crimes where there are a large number of innocent people accused and/or convicted.

I don't envy the prosecution or the defense in those type cases. I'd hate getting a real child molester found not guilty as much as putting an innocent person in jail.

Congratulations AHCL, if the person is guilty like you believe, then you did a great job.

A Harris County Lawyer said...

Well, thank you Ron, but that wasn't the purpose of my article. I was just trying to illustrate what a difficult thing it is to deal with critics when you firmly believe you are right.

Child Abuse cases are horrible, and sadly frequent. Some cases are harder to prove than others, and the profile of an abuser often is a person who selects the weakest child to pick on. Whether that mean that the child be "slow", a loner, or troubled. The victims that they pick are often those that society would be unlikely to believe. Yet, it is undeniable that child abuse exists. Trying to sort out the truth of an allegation happens at the investigative (police) level, the prosecution level, and ultimately the trial level. Each level can decide not to believe the allegations and end the process.
Prosecutors lose a lot of these cases because juries are scared to believe the word of a child. That's good if a person is innocent of the allegations, but it's downright horrifying if they are guilty and nobody believes the child.

It's just a sad situation all around.

PJ said...

Anonymous 3:31,

There is no liberal fairytale. We, i.e., humans, know what causes the social phenomenon of crime and how to drastically reduce it and probably virtually eliminate it. Check out these numbers, which, although from 1991, are still representative of the respective societies, particularly in their relative relationship, which is all that matters for my point:

Annual reports of police brutality (per 100,000 people)

United States 92.5
United Kingdom 6.0
France 0.7

Prisoners (per 1,000 people):

United States 4.2
United Kingdom 1.0
Germany 0.8
Denmark 0.7
Sweden 0.6
Japan 0.4
Netherlands 0.4

Death row inmates:

United States 2,124
Japan 38
Europe and Canada 0

Percent of households with a handgun:

United States 29%
Finland 7
Germany 7
Canada 5
Norway 4
Europe 4
Netherlands 2
United Kingdom 1

Murder rate (per 100,000 people):

United States 8.40
Canada 5.45
Denmark 5.17
Germany 4.20
Norway 1.99
United Kingdom 1.97
Sweden 1.73
Japan 1.20
Finland 0.70

Murder rate for males age 15-24 (per 100,000 people):

United States 24.4
Canada 2.6
Sweden 2.3
Norway 2.3
Finland 2.3
Denmark 2.2
United Kingdom 2.0
Netherlands 1.2
Germany 0.9
Japan 0.5

Rape (per 100,000 people):

United States 37.20
Sweden 15.70
Denmark 11.23
Germany 8.60
Norway 7.87
United Kingdom 7.26
Finland 7.20
Japan 1.40

Armed robbery (per 100,000 people)

United States 221
Canada 94
United Kingdom 63
Sweden 49
Germany 47
Denmark 44
Finland 38
Norway 22
Japan 1

Think there's anything to learn there? There are social solutions to crime, mostly involving the creation of a more egalitarian society and providing social supports and guarantees like housing, food, health care, and education. Political opponents of those solutions have responsibility for the creation of crime victims. By their opposition, they are actively opposed to the reduction of crime, even violent crime. They do this even while holding themselves out as "tough on crime," e.g., by being vocal about their support for the death penalty, despite the fact that the death penalty has no effect on crime (or, if you believe any of the deterrence studies, only an effectively negligible effect).

It's cruelly ironic in the way this plays out. First you create a crime victim. Then you claim to be on the crime victim's side after the fact. Then you create another crime victim. And so on.

(By the way, I do not in any way hold those other nations up as some ideal. Even they could go much further to reduce their crime rates.)

A Harris County Lawyer said...

You are clearly very intelligent and clearly very idealistic. There's nothing wrong with that, but could you please try to just do a link if you want us to look at statistics? It makes the comments a little long.
We're kind of forced to work with what we're equipped with around here, so, I guess the bottom line is: you go save the world. We'll wait here.

Anonymous said...

Like I said PJ... "living in liberal's fairytale bubble". Close your eyes, click your heels three time and while saying " theres no place like home.. theres no place like home".. pick one of the countries you are fantasizing about with no crime and crime prevention directly achieved from their societys mere unification to create the perfect world and... move there. I am sure you can blog from there or what, perhaps not. Since there will be no crime, there will also be no communication outlet to discuss that which does not exist. Your ideaology reminds me of social movement in the USA during the 1960's which was for the most part drug induced and referred to as the flower child decade. The "love cures all" era. The same era from which Charles Manson became notorious household name. Comparing statistics of countries that are a fraction the size of the USA...? Thank you for the chuckle of the night. Excuse me while I go pay my NRA dues and uphold the very constitution of this great land.

Anonymous said...

Kelly needs to play the politcs game for now. People respond to it even though they say they don't like politicians. Kelly needs to learn how to be a politician and speak like one so that she can get elected and then set forth on an agenda to change the office. She needs to stop telling us she's qualified, we know that. She needs to stop making excuses for the office. The office is in bad shape and she needs to acknowledge it, especially when common sense is just screaming at her to do so.

She needs to stop putting her foot in her mouth, spouting out things that Chuck would say like, "the other candidates don't know where the bathrooms are in the criminal courthouse." She just sounds stupid when she says things like that. If she wants to distance herself from her "friend" Chuck, stop calling him a friend. He's obviously not. She doesn't have to take the blame for her husbands stupid emails, but when your husband does something stupid, acknowledge it and actually apolgize to the public, even though its not her fault. Sometimes life isn't fair that way, but people respond well to someone who says, "my husband did something idiotic and I'm embarassed by it. We've talked about it and he swears this is something that will never happen again." People respond well to accountability and someone who will shoot straight from the hip. Kelly just sounds arrogant like Chuck. She needs to stop saying that she's never seen racism at the DA's office. Well, maybe she hasn't, but it wouldn't be unfair or a far stretch to say that it might exist within some people at the DA's office, and when and if she's DA she'll do anything in her power to erradicate it and prevent it. She needs to earn the trust of the public and she's doing a bad job of it.

Of course those of us who were at the DA's office and have worked with her, know she's a chip off the old block and she'll change very little. When the "Canadian" episode took place, the person offended by the comment went to her to complain and she did nothing. She basically said, "go talk to Mike Trent." She's lying when she says that's not true and those of us in misdemeanor at the time know it.

Change is good. Change although feared in Dallas County turned out to be good for the citizens of Dallas County and for those wrongfully convicted. The DA's needs Jim Lietner.

A Harris County Lawyer said...

I posted the above comment with some reluctance, because again we have some allegations in it that I don't recall having been true. However, I want to foster as much free flowing conversation as I can here.

I was at the Office at the time of the Canadian e-mail, although I wasn't in the misdemeanor bureau. I was in felony.

My recollection was that when I received the e-mail from Mike Trent, I was confused. I knew that the word "Canadian" didn't mean our neighbors to the north, but I didn't know what exactly he meant by it. You can choose to believe it or not, but I NEVER thought the term Canadian was a code word for the N-word. My actual gut reaction was that it was idiotic of Mike to send out an e-mail commenting over a jury in a negative way, which I thought he had with the phrase "despite the fact . . ."
When "the person" (why are we still keeping him anonymous when we all know who he is?) became angry, it was my understanding that he had gone straight to Mike and confronted him on it. I don't know whether or not he went to Kelly first. I will say that your post is the first time I ever heard THAT.
Kelly was the Misdemeanor Division chief at the time, and she had personally selected Rob to be the Deputy Dawg of Misdemeanor PRIOR to the Canadian e-mail going out. She was NOT Rob's supervisor at the time, nor was she Mike Trent's. Her encouraging the offended prosecutor to go talk to Mike Trent would seem like a rational first step to take for adults, in my opinion. Keep in mind that during this stage of the drama, nobody knew that the term could be used for the N-word, yet.
Ultimately, Kelly revoked her offer to Rob to be the Deputy Misdemeanor Division Chief, which was a punishment. Even though he had written an explanation (that the media is still sitting on) that was race-neutral and the statement he had made had only been to Mike Trent, Rob had to suffer through the embarrassment of being removed from consideration for a prestige position that he had already been announced as getting. He was upset and he was humiliated.
However, Kelly was aware at the time that "perception is reality", and that African-American prosecutors would be upset and outraged over Rob taking over as Deputy Dawg.
The "anonymous prosecutor" made his peace with both Rob and Mike, and life went on at the D.A.'s office for five (count 'em, five) years without incident.
And then Kelly announces that she will run for D.A. A pissed off Loretta Muldrow and Alvin Nunnery who are still mad at her over the Guidry trial and don't want her to ever be D.A. call up the "anonymous prosecutor" and see if he can get his hands on that old e-mail from 2003.
He gladly complies.
If it hadn't been for the events of Chuck Rosenthal and his departure from the Office, and Kelly hadn't run for office, the incident probably would have remained dormant like it had for the previous five years.

jigmeister said...

Do you think that Leitner would put a stop to Death Capitals?

Jason said...

Should have walked through them uttering, "excuse me, I have to change clothes in a phonebooth and save another child victim from a family predator!"