Fair and Unbalanced

The post by Jonathan Adler at the WaPo Conspiracy did little more than point to another WaPo post.  Under other circumstances, that wouldn’t be surprising, as newspapers internally cross-promote all the time. But this was the remnants of the once vaunted Volokh Conspiracy, and while pointing at the writing of others was nothing new, this one was special:

Prosecutorial misconduct is a serious problem. Because prosecutors are largely immune from suit for their actions, some prosecutors take liberties, tolerate false testimony, suppress exculpatory evidence, and engage in selective prosecutions. Fortunately, we have writers like Radley Balko, who focus on these issues. His latest discusses the disturbing reaction of prosecutors to judges who criticize their conduct.

Did Adler just discover prosecutorial misconduct?  Did he just decide to take ownership of Balko (note the “we” in there)?  Does he think the readers of VC were oblivious to Brady violations, or oblivious to the writings of non-lawyers like Radley?

Radley Balko’s post was nothing new for him.  He’s been hammering these issues home for a long time, since his blogging days as The Agitator, through Huff Post, and now on his WaPo platform.  He’s gone from short form smacks to feature length articles, with a book that’s received broad acclaim in the middle.

Having watched his career soar, and had the chance to talk to him about it along the way, I understand why Radley posts articles about police and prosecutorial misconduct which, to long time readers, seem repetitive: As he moved from one platform to another, he gained a new, different and larger audience who wouldn’t know of his past.  Each time, he had the opportunity to bring the problem to their attention, to fresh, new eyes.

Radley seized the opportunity, and started from the beginning since new eyes, by definition, wouldn’t be familiar with all that had come before.  And the problem not only persisted, so that it was as well-grounded a story as ever, but was constantly adding new wrinkles, providing yet a fresh fact for each new article.  It’s like the old summer reruns; if you didn’t see them the first time, they’re new to you.

But the VC readers were a different sort, whether lawyers or non-lawyers already deeply steeped in legal issues. Surely, the notion that prosecutorial misconduct existed would be a major yawn, and Adler added nothing of value to the idea. It was a point toward Balko. Nothing more.

And then I read the comments, which I plan to continue doing for the brief time left before WaPo shuts out those of us who aren’t paying subscription fees and puts the WaPo Conspiracy behind its paywall. As uninteresting as Adler’s post might have been, the comments offered a curious view.  There were a number of complaints about Balko of this sort:

Typically of a Balko piece, which are quite opionated and make no pretense of being balanced, his version of the South Carolina disagreement is lacking some fundamental details, which alter the nature of the dispute. A state SC justice appeared in front of a conference of state prosecutors and laid into them, hip and thigh, quoted disputed numbers of disciplined lawyers, threatened disbarment for as yet uncommitted deeds, and then mentioned how he would vote on the constitutionality of a piece of legislation still in the process of being formulated by the state elected body which might benefit prosecutors (“We have the three votes to vote it down, so don’t bother.”). Newspaper accounts other than Balko’s used terms liked “shocked” to describe the attendees’ reactions.


As is unfortunately often the case, Balko can’t resist seizing on anything that will advance his cause, and so ends up endorsing weirdness like this SC justice’s obviously inappropriate and goofy speech.

The reference is to a speech given by South Carolina Supreme Court Justice Donald Beatty to a group of prosecutors, where he ripped them a new one. I wrote about it last December. It’s not exactly breaking news. But it most assuredly happened.

The complaint at WaPo Conspiracy directed at Balko is that he isn’t reporting this story fairly. He lacks “balance.”  There was Beatty castigating prosecutors. There was Kozinski calling the failure to disclose Brady an epidemic.  And when Marvin Schechter raised the problem in a New York State Bar Association, Criminal Justice Section column, holy war broke out.

What sort of balance were they whining about?  Was it the lack of the standard caveat, that not all prosecutors are malevolent scoundrels?  Or that most were good, honest, hard-working public servants?  Perhaps Balko should have included a paragraph or two about a prosecutor saving a kitten in a tree?  Would that have stroked their brow sufficiently to make the post palatable and stopped their sniveling?

Grow up.  Balance doesn’t demand that every criminal law story include the intro to Law & Order to remind the people how you save them from being raped in their beds every night. The story is that judges, not just reviled criminal defense lawyers, are calling out prosecutors for their misconduct. Not that every prosecutor is a scoundrel, or that misconduct occurs in every case, but that it happens, and people need to know that it happens. You see, they left that part out of the intro to Law & Order.  People need to know.

Whether the wrongs happen once, or ten times, or a million times, isn’t clear, but what is clear is that they shouldn’t happen at all.  And judges say so. That’s the story. You want balance? Earn it. In the meantime, guys like Radley Balko will continue to write about the things that hurt your feelings because they happen and you don’t want anyone to know since they won’t adore you for it.  You want to stop the stories? Stop the misconduct.

And after reading the comments to Jonathan Adler’s post, it occurred to me that while he said nothing of interest on his own, the mere pointer to Radley Balko’s post, in the hands of WaPo Conspiracy readers, was all he needed to generate the outpouring of misguided butthurt that appeared in the comments. Adler knew better than I did how to work his audience, and it served his purpose. Well played, Jonathan. You were right.

6 comments on “Fair and Unbalanced

  1. Gloria Wolk

    Those prosecutors who protest so heatedly are not the ones who protect us. They support the obstruction of justice by their colleagues, and the wrongful convictions. They are the ones who deny innocence in the face of DNA evidence. They are the ones who relish immunity because it gives them unchecked power. They are the ones who would applaud Clapper’s perjury before Congress, and who support not charging Clapper with a felony.

    1. SHG Post author

      So you know them personally? You see, if you can make stuff up about them, they can make stuff up about you. Best nobody make stuff up about anybody. See how that works?

      1. Gloria Wolk

        Do I personally know the prosecutors who protest? Obviously not. But I have collected many, many examples of this, not only rulings and complaints filed against them by judges but transcripts. And it is not an equal playing field. They can make up things about me and indict and prosecute, but I cannot do that to them. Neither I nor the justice system holds them accountable. They are the elites among us. I know you know this.

        1. SHG Post author

          Of course you don’t know them, and you’ve similarly missed the point entirely. Your effort to reduce complex problems into simplistic knee-jerk paradigms does grievous damage to the very point you try so hard to make.

  2. onlymom

    I think the judge hit it right on the head. His response to the DA’s should have been

    “Yes I am biased against criminals no matter what bench in my court they sit behind. Be it the Defense table or the DA’s and I think any DA or Defense Lawyer who has a problem with that has no business being a in a court as anything but a defendant!”

    1. SHG Post author

      I realize why, given your frame of reference, this seems like such a good idea to you. But no, it’s not.

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