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)



Filed under Uncategorized

5 responses to “Real Criminals

  1. Much more to the Willingham case – then a mere prosecutor gone awry.

    Since 2001, when I was first “convinced” to look deeper at the case issues of Cameron Todd Willingham… I’ve had a heavy heart.

    Everyone KNEW that Willingham was not guilty;
    but he was executed anyway.

    When a Commission was formed to look into how the unjust execution could have transpired – Governor Perry nixed the results on day of release.

    Afterwards, Governor Perry threatened a investigative prosecutor with yanking of funding – if said prosecutor continued to pursue inquiries.

    My heart still aches and tears still well, about the Willingham case. Thank G-d for his dear, sweet, dedicated family refusal to let it go.

    Today, in Texas, even though federal Judge Royale Ferguson has stepped down from the bench, there’s the case of Jeffry Baron, demonstrating how evil our systems of justice have gone into the abyss – for veiled agendas.

    They are trying to cause Jeff Baron to enter an early grave, in order to steal everything he has (tens of millions); and Mr. Baron has never even been charged with any crime.

    R.I.P. Cameron Todd Willingham,

    like your family – I’m never stopping – until justice in your case – arrives!


    This is a prior posting on Willingham case – with good links therein


    • mn

      Todd Willingham’s “defense” attorney:

      need I say more?


      • Interested Blog Reader

        I’m just completely astounded listening to this defense attorney. He thinks he’s an investigator? He discusses his client telling four different stories and buying drinks at a bar after the death of his family? That’s who was appointed to represent this man? No, mn, you need not say more.


        • mn

          You know there have been defense attorneys who have shown up drunk, who fell asleep during proceedings, who knows what else goes on but I must say this is THE worst excuse of a lawyer I’ve ever seen. The fact that this guy got into law school is in itself astounding enough (I’d like to know which one so I can avoid it) but the fact that he hasn’t been disbarred in decades is a crime, it is a crime against the people.
          “And we took the laahterr fluid, paawhded it on the caaahpet, and we set’err on faahr…..” WTF?
          But he’s just the tip of the iceberg, Willigham was innocent, probably the only one in this story: the prosecutor paid for snitch testimony, one of the jurors was related to the fire marshal, Todd’s wife turned on him two weeks before the execution in a miraculous 180 (and claimed he confessed), the entire state apparatus ignored top experts who made it clear that even for the time the science used was junk science and finally, Rick Perry had an innocent man executed and then proceeded to engage in a cover up.

          And now, hold on to your pants:

          (Kay Bailey Hutchison press release) “As hard as Rick Perry’s office and his campaign may try to divert from the issue, this is not about one man or one case. The issue is Rick Perry’s heavy-handed politicization of a process and Commission established by the legislature to provide critical oversight. First, Rick Perry delayed the formation of the Texas Forensic Science Commission, then he tried to ensure it didn’t have funding and when all else failed, he fired everyone he could. The only thing Rick Perry’s actions have accomplished is giving liberals an argument to discredit the death penalty. Kay Bailey Hutchison is a steadfast supporter of the death penalty, voted to reinstate it when she served in the Texas House and believes we should never do anything to create a cloud of controversy over it with actions that look like a cover-up.”
          You’ll notice that Hutchison’s campaign didn’t hit Perry forthrightly for, well, presiding over the execution of an innocent man. It hit Perry for giving liberals an excuse to whine about the death penalty, as though that would be unwarranted.
          Why did Hutchison’s team dance around the issue? As we found out later, it was because her campaign had focus grouped various Willingham messages and found that the “killing an innocent man” thing somehow helped Perry among Republicans.
          Veterans of Sen. Kay Bailey Hutchison’s unsuccessful 2010 primary challenge to Perry recalled being stunned at the way attacks bounced off the governor in a strongly conservative state gripped by tea party fever. Multiple former Hutchison advisers recalled asking a focus group about the charge that Perry may have presided over the execution of an innocent man — Cameron Todd Willingham — and got this response from a primary voter: “It takes balls to execute an innocent man.” — Salon


  2. What you just said, with the video of the (purported) defense counsel – is that the counsel is an idiot.

    He can’t argue against his client – EVER!

    And the experts not only agree the purported scientific evidence in the case was INVALID — There’s also the issue that the purported expert was found to be incompetent (and worse).

    If you bothered to look at the links within my DK article, you would see that the Innocence Project (among others) did extensive review of the facts.

    My hope and prayer is that those would harbor the desire to affirm the blood lust, done by both malfeasance and misfeasance;

    are dumb enough to bring this Defense counsel in – to make their case.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s