A Point Of Concern – And The Point In Issue

I hope commenter “GK” is not a prosecutor.  Buried in one of his comments, addressing the issue of preparing for trial on behalf of  a criminal defendant, which involves of course the interviewing and summoning of witnesses, he says:

“Just tie the witnesses down with your own investigator first. Of course the prosecution will try to “flip” cooperating witnesses.”


Now, I kind of glossed over this part at first, not realizing its importance.  In my defense, it’s not always easy to spot fundamentally disordered thinking.  It has an unexpectedness about it.

GK is saying here that “of course” the prosecution will pressure witnesses to testify the way they want them to.  This is a frightening mindset.  The prosecution has no business doing anything of the kind.

In the first place and on a practical level, it is a “tactic”, if you want to dignify it with that word, that cannot be fairly countered by the defense.  The defense doesn’t have the power to arrest and prosecute people; the prosecution does.  In a witness pressuring contest, the prosecution wins.  What sort of trial would there be where the prosecution engaged in this kind of tactic?  A hopelessly perverted one.  An obviously unfair and unconstitutional one.

Moving on to the ethics level, GK couldn’t be further off:

“The United States Attorney [but this applies to all prosecutors – ed.]is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U. S., at 88.


You couldn’t find a more explicit example of an unethical abuse of power than prosecutors pressuring witnesses to testify in a manner that helps them “win” a conviction.  Any prosecutor who thinks this way, let alone behaves this way, should be disbarred before he kills someone.

GK then finishes his comment with a curious calculus:

You probably could’ve shaved a year off the initial 2 year offer, instead of adding a year; though a 3 year offer, after all of this, was not that big a trial tax. (This fancy manouvering technically wan’t even a “trial”. I don’t know what to call it.)


There aren’t many people who would focus on this aspect of what went on in New York courts over the Sephora Davis matter, but since GK has I’m going to take this opportunity to address it, because there’s quite a bit to say here.

Under the conceded facts a felony plea and prison sentence for Sephora Davis was inconceivable because it would be fundamentally and obviously morally depraved to do it.  It would be degrading to everyone who participated, a disgrace to the system itself.  Indeed one of the basic problems here is that the system has already acknowledged this by refusing to forthrightly state what they ultimately did.  All that remains now is to make them acknowledge it openly and deal with it.

There is no question, of course, that the officials involved had the power to send Sephora Davis to prison and that is what they did.  But they want more than that.  They want her to surrender.  They want me to surrender.  It is very uncomfortable to degrade oneself – unless everyone goes along.  Misery loves company, I guess.  If we’re all covered in the same mud maybe no one is really dirty, because it’s all relative.

Am I over-scrupulous?  Believe it or not I have been accused of this.  And yet I would have accepted some disposition of the case by plea that would leave room for the prosecution – the state, the government – to save face.  By the time all this became relevant, there was a basis for some kind of drug court/misdemeanor/youthful offender disposition, and I would have agreed.

Mind you, I would have found such a disposition highly objectionable and distasteful on a moral level.  The only disposition that I felt was truly acceptable was a complete dismissal of all charges and an apology.  But I am not so morally pure and unyielding that I will concede nothing to raw power.  Raw power frightens me, like any other man.  We don’t live in heaven or in Plato’s world of the forms.  In this world you may have to compromise to avoid destruction of yourself and your loved ones, and it’s not pretty but then neither are any of the alternatives.

But there’s a difference between what I might find morally objectionable, and what any normal, sane human being would find to be a “conscience shocking” moral atrocity.  There I will not go – at least not voluntarily or through any semblance of an agreement.  You may be able to run over me and crush me under your feet anyway, but you will have to do that at that point.  I will never let you.

Violently raping a young woman, framing her for a crime she did not commit and then imprisoning her, all under claim of sovereign right or prerogative crosses the line, in other words.  Obliterates the line, really.  This is the line we all have to fight for.  To the death, if necessary.

As it happens, “conscience shocking” has a lot to do with what we lawyers call “due process” and all that is bound up with this case.  And so far it’s just me, but I don’t believe there is anything going on in the law anywhere in the United States that is more important, or even as important, as exposing what these officials did and obtaining redress of some kind.

People look back at notorious regimes of the 20th century and wonder how they could have flourished.  I do not.  I know exactly what happened, and how it happened, and just how thin the line separating them from us is.

The Sephora Davis matter is a stop loss point on the US road to moral oblivion.  If it gives way it is all free fall from there, and there is no doubt where it all ends up.

I am not stubborn; I am afraid.




Filed under financial crisis, Judicial lying/cheating, Striking lawyers, wrongful convictions

2 responses to “A Point Of Concern – And The Point In Issue

  1. Chris

    It seems GK is an experienced trial lawyer who is saying that, upon an extensive cross exam of your witness, a prosecutor will try to establish bias, prejudice, lying, etc.,. . .and, if successful and your witness “flips” on the cross, your investigator will have to testify after the fact to establish how and what that witness told him before they testified. You would do the same to the state’s witnesses, and the cops would testify that’s what they were told at the time of the interview.


    • Yes, it does seem as if GK is an experienced trial lawyer, and almost certainly a prosecutor.

      No testimony is required to appreciate the significance of the Ashley Baker and Todd Gaddy statements, and the conflict between the two. Indeed, more testimony is just an invitation to more perjury. It is a chronic weakness of the system that it has a lot of trouble figuring out who is committing perjury, and although prosecutors don’t want to confront this reality, the truth of the matter is that prosecutors and police have an overwhelming “perjury advantage”: proecution witnesses, and especially police, have a huge and often insurmountable credibility advantage over defendants and their witnesses. A prosecutor – like GK – is very comfortable with a credibility contest because it is such an unfair fight. It would not be an exaggeration to say that the prosecutor’s witnesses are a million times more likely to get away with perjury than defense witnesses. That’s one of the reasons that on those few occasions when you have caught them committing perjury and fabricating evidence the system recognize it and react accordingly.

      The way to look at the Ashley Baker/Todd Gaddy statements is that they constitute what is known in literature and cinema as a “continuity error”. It is a peculiar danger of writing fiction that you will screw up and describe something that is impossible, and which reveals that you’ve been writing fiction.

      Let me give you an example. Let’s say I am writing a fiction novel today, but it’s set in the 1920’s. I have my characters in a dialogue where one of them mentions the Japanese attack on Pearl Harbor.

      Oops. Impossible. The Japanese attack on Pearl Harbor didn’t happen until 1941. Such an error can only occur because the story being told is fiction.

      In order to avoid errors of this kind, movies often have “script supervisors” to catch them before they make it into print. The police suffer from having no script supervisors, and they are prone to making continuity errors, as they did here. They are far more prone to that than they are to appearing “not credible” on a witness stand. They are experienced witnesses, and can far more readily lie convincingly than others.

      The Ashley Baker and Todd Gaddy statements are a continuity error by Carson. He was generating fiction to the effect that “Sephora was the driver” and neglected to make sure that the evidence he fabricated was not inherently unbelievable (as the Ashley Baker statement is) and that it matched up with other evidence (the Todd Gaddy statement). The system cannot let him off the hook on this error. He is caught cold.

      No testimony is required, or even desirable, to establish any of that; the very statements themselves establish it. The only thing required is the intelligence and the open-mindedness to understand it.

      Unfortunately many people are not open minded to the idea that police and prosecutors have done something like that.


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