Real Criminals

After a wrongfully convicted man is exonerated through DNA, prosecutors vow to retry him.  He opts for an Alford plea to spare himself and his family a second grueling ordeal.  But of course the conviction continues to haunt him the remainder of his life.

Which is then cut short by his own hand.

In a similar and much more familiar true story from Texas, we have the case of Todd Willingham, back in the news because professional disciplinary charges have been filed against the prosecutor who convicted him and sent him to death row, from which he was eventually executed.

But the story of the Todd Willingham prosecutor isn’t about professional misconduct; it’s about despicable, criminal behavior.

Would it matter that either of the prosecutors subjectively believed that the men they were lying and cheating and extorting to death were really guilty?

We had a comment the other day on an old post about Tom Moran, former prosecutor and now a State Supreme Court judge, the same “career path” as Ken Anderson.  The comment was probably from a lawyer, since it evinced an awareness of the “materiality” idea and bandied about terms like “preponderance of the evidence” and “clear and convincing evidence” and seemed aware of what the distinction meant.  Most likely a lawyer, then.  But it could also have been from a cop.

Could the prosecutor in the Willingham case, or the Conover case, or the Sephora Davis case, harbor a subjective belief that the people they wrongfully convicted really were guilty after all?  I suppose it’s possible.  People can harbor irrational subjective beliefs.  Look at some of the twitter traffic about Jodi Arias.  Or Amanda Knox.

But as horrifying as some of that reveals some people’s thought processes to be, at least the social media partisans in those extremely high profile cases are not directly involved, and do not stand to personally benefit from prevailing.

Not so with the prosecutors. They harbor an irrational belief – if indeed they really do – because it is very much in their self interest to harbor it.  Their subjective belief, in other words, is not the result of enlightened self interest or even rational self interest; rather, it is the product of pathological self interest.

Pathological self interest is chiefly a character trait of….criminals.

But in truth, our belief here at Lawyers on Strike is that the conduct is even worse, that these prosecutors do not, in fact, harbor any such irrational subjective belief, because prosecutors are lawyers and lawyers cannot be stupid.  They might not be geniuses, but they cannot be stupid.

So the more likely reality is that the conduct of these prosecutors has been beyond mere criminal and into the realm of the malicious and the malevolent.  It’s twisted almost beyond description that after a man who was labeled a murderer is exonerated, losing most of the good things other people enjoy in life, the chief tormenter refuses to repent or relent and attempts to destroy whatever is left of the life he unjustly ruined in the first place.  But this is what these men have done.  Are doing.

Yet we do not believe criminally prosecuting them is a solution.  The crimes of which they are guilty bear the strongest resemblance to human rights abuses that are addressed more in international law than through domestic law enforcement.

No, we believe the real solution on the domestic front is copious compensation for their victims.  So copious that their victims never have to work for a living again and can – as I would almost always recommend – leave the country and live as expatriates elsewhere.

There are two salutary benefits from this approach:  the first, obviously, is that it is only fair to do everything possible to fix what is broken, and money goes a long way for this specific wrong.  And it is probably the only thing that goes a long way.

But second, far more than making a punitive example of this or that prosecutor, imposing a large institutional financial burden on this kind of malevolent behavior changes the institutional culture internally, where it most needs to change.

Let us illustrate as best we can, with some help from Jeff Gamso.  There is a place for gallows humor, we agree.  We’ve encountered it in the Navy, in personal injury legal practice and in criminal legal practice.  But the place is very small, perhaps a moment’s respite from the overpowering weight of extremely serious tasks and responsibilities.

In other words, a remark here or there to prompt nervous laughter before everyone is overwhelmed by what is really going on.

But in a post yesterday Jeff quotes a prosecutor named Marty Stroud, who convicted a man wrongfully on bullshit evidence and although no one was executed, 30 years went by and the man’s life was essentially taken from him anyway:

In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning. To borrow a phrase from Al Pacino in the movie “And Justice for All,” “Winning became everything.”

After the death verdict in the Ford trial, I went out with others and celebrated with a few rounds of drinks. That’s sick. I had been entrusted with the duty to seek the death of a fellow human being, a very solemn task that certainly did not warrant any “celebration.”

Mr. Stroud is right.  It is very sick, and he is describing a very sick prosecutorial culture that while not universal is nevertheless very common.

He is describing Tom Moran.  And too many judges.  And the lawyer (likely) who posted that comment the other day.

And Marty Stroud is right about something else:  There is really no end to the money we, as a society, owe his victim.  As I’ve pointed out many times, we shower people with money because they throw a football well or titillate us with pictures of their behinds.

Because they amuse us, in other words.

And then we balk when we, through our officials, have ruined an innocent person’s life, a truly horrifying wrong that in most cases can never be fully repaired.

So this is really about us.  As a people.  What we do with the wrongfully convicted is a measure of our character.  And the verdict on our character so far is this:  venal, stupid, lazy, cruel, miserly, prideful, obstinate, shallow, feckless.

I could go on.  But that’s enough adjectives for now.  Maybe the real criminals are us, is the point.

(h/t Nina Burleigh)