The Overlord Solution

The government is the problem. The government is the solution. That’s how it is when there is an unshakable belief that someone else, someone official, must exist to save you from . . . them.  And there is no institution that believes more in officialdom as the solution to the problems officialdom creates than the New York Times.

Prosecutors are the most powerful players in the American criminal justice system. Their decisions — like whom to charge with a crime, and what sentence to seek — have profound consequences.

So why is it so hard to keep them from breaking the law or violating the Constitution?

That’s a lot to stuff into two sentences, and yet the editorial does so seamlessly, shamelessly. Are prosecutors the *most* powerful players?  In the federal system, to some extent, this is a relatively accurate assertion, because of mandatory minimums and, to the extent judges rely on it, the Sentencing Guidelines.

But does it make any difference whether prosecutors are the *most* powerful players when answering the question of why prosecutors can’t be prevented from “breaking the law or violating the Constitution”?  Even if they’re not the *most* powerful players, it’s not okay for prosecutors to break the law or violate the Constitution.

The short answer is that they are almost never held accountable for misconduct, even when it results in wrongful convictions.

That prosecutors are forgiven their trespasses isn’t much of an issue. So are cops when it results in wrongful killings, which, by some calculations, are even worse than wrongful convictions.

It is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights.

And thar she blows. Because the feds are doing such a great job with their own prosecutions. But wait, the official-love has one more step in the dance.

There is a successful model for this in the Justice Department’s monitoring of police departments with histories of misconduct.

Like the Chicago police, where nothing ever goes wrong.

The impetus for this New York Times editorial is the upcoming Supreme Court case of David Brown.

This month, the Supreme Court will consider the latest challenge to prosecutorial misconduct in Louisiana in the case of David Brown, who was one of five men charged in the 1999 murder of a prison guard. Mr. Brown said he did not commit the murder, but he was convicted and sentenced to death anyway. Only later did his lawyers discover that prosecutors had withheld the transcript of an interview with another prisoner directly implicating two other men — and only those men — in the murder.

Ah, a Brady violation. In Louisiana. Who would have guessed. It’s not like the Supreme Court already gave New Orleans one free pass on Brady, as law is too hard for prosecutors to grasp.

David Brown’s case is a good example of how every part of the justice system bears some responsibility for not fighting prosecutorial misconduct.

Every part?  Maybe not every part. Maybe not the defense lawyers who are the ones who discover these Brady violations, who bring them to the courts’ attention. Who fight for reversal and dismissal. You probably just forgot that defense lawyers were “part of the system,” right? That can happen, because they aren’t official office-holders with important titles, of the sort the New York Times admires so greatly. They’re just, you know, defense lawyers. But I digress.

But nowhere in the editorial does the Times recognize that the use of federal monitors of police has proven to be a massive failure on every level.  Indeed, it’s a big inside joke, where very expensive federal systems are put into place, which produce reports of failure. Reports.

They’re great at writing reports. Official people love reports. They love conferences and meetings, whether in person or on telephones, where they can talk about the stuff that will end up in the reports. They will discuss issues in moderated tones so that no one is offended during these meetings and conferences, which produce lengthy and detailed reports. With footnotes.

Of course, reports don’t do anything to get Brady material into the hands of a defendant about to go to trial for his life.

This maddening situation has long resisted a solution. What would make good sense is to have the federal government step in to monitor some of the worst actors, increasing the chance of catching misconduct before it ruins peoples’ lives.

Someone on the New York Times editorial board is non sequitur challenged.  Monitors see things after the shit has hit the fan. If you seek to “increase the chance of catching misconduct before it ruins people’s lives,” that would require a solution that has an impact beforehand. Reports happen afterward. Sequence matters.

But even if we were to take that monumental leap of faith that writing reports and holding meetings had any chance of “catching misconduct before it ruins peoples’ lives,” there remains one issue of such mind-numbing blind faith that it can’t be ignored. What makes you think the feds are any better at eradicating prosecutorial misconduct than anyone else?

Maybe there should be a Room For Debate about the relative efficacy of eliminating absolute immunity for prosecutors, so that every individual prosecutor can be held personally accountable for violating the Constitution, for breaking the law. After all, that’s a value judgment that the Supreme Court pulled out of its butt, under its own assumption that if prosecutors feared personal liability, they would be reluctant to violate the Constitution prosecute with vigor.  What made the Times’ editorial board take this solution off the table?

Perhaps the Times editorial board agrees that the need for prosecutors to feel confident that they can prosecute without responsibility is paramount to ending constitutional violations. After all, they do so love a good prosecution when they hate the perpetrator.  Maybe the relative value of keeping prosecutors honest isn’t as great as making sure hated defendants get convicted?

But I suspect it’s a very different reason. The New York Times loves official solutions. And there is no more official solution than turning to a federal monitor and pretending that putting one prosecutor in charge of another prosecutor, particularly when the former has just as sordid a history as the latter, will fix it. Government is the problem. Government is the solution. Surely, we can trust government to fix all of our problems. Look at what a great job they’ve done up to now.

18 thoughts on “The Overlord Solution

  1. PDB

    Prosecutors enjoy absolute immunity under Imbler v Pachtman, not qualified. If Imbler were overruled and prosecutors were only subject to qualified immunity, I think that §1983 lawyers would be jumping for joy.

    1. SHG Post author

      You are, of course, correct. The best excuse I can offer for typing “qualified” is muscle memory. Beyond that, I got nothing.

  2. DaveL

    Take an ordinary coffee can and place it on a sheet of paper, and trace around the base with a fine-tip pen. Imagine the resulting circle is the Earth. On the inside of that line is molten rock, on the outside is hard vacuum, and all of humanity, everyone you have ever known, lives and dies within that thin line. Don’t worry, though, because some of the tiny, fragile, mortal beings clinging to existence on that thin line constitute “government”, and they are in control.

    1. SHG Post author

      Does it matter if the pen has a medium tip? Asking for a friend who doesn’t have a fine-tip pen.

  3. Billy Bob

    As Donald Rumsfeld would say, “Prosecutorial misconduct happens!” If the grand jury system as originally designed had not been weakened, if it were to be restored to its rightful place, prosecutors might become less powerful. They might be relegaed to the class we call “functionaries”; which is really what they are, no more, no less. A stewpid cog in the wheel, instead having to prove their mettle with multiple notches on their respective belts. After all, govt. employees want promotions and pay raises, just like us civilians. Civil service and civil servants are terms scarcely heard in the halls of justice these days. They won’t live in our neighborhoods either. What a pity!

  4. Froggy64

    When you mentioned the ‘Overlord’ solution, I thought you meant invading Normandy – about as likely to be successful as Federal oversight in ending prosecutorial misconduct.

  5. Troutwaxer

    There’s no solution to this particular problem that doesn’t come under the heading of “hopeful fantasy.” Just for the record, my hopeful fantasy is that half the judicial positions will be reserved for former defense attorneys.

  6. Ziran Zhang

    To Scott, and others who have practice criminal defense for longer than I have (5 years):

    I often hear the term “Brady epidemic” thrown around these days, such as Judge Kozinski’s remark that we have an “epidemic” of Brady violations. Is the problem really worse now than it was say, 20-30 years ago?

    As to a solution, my opinion is that punishments for bad behavior generally do not work as well as rewards for good behavior. Perhaps instead of calling for stepping up enforcement of the Brady rule, we should ask the Justice Department to reward its prosecutors every time they turn over Brady material?

      1. Ziran Zhang

        Patrick, just to bounce-off of that comic strip: engineers can deliberately write bugs into the code, so an reward program for finding and eliminating bugs creates malicious incentives of its own. But in the case of criminal prosecutions, the most federal prosecutors can do (assuming the incentive is large enough) is to be more creative and broadly categorize evidence as Brady. To my mind, that’s a great thing. Prosecutors currently tend to view Brady as a very narrow rule. How many times have you asked a federal prosecutor for specific evidence (such as a failure by witnesses to name your client) only to hear back that they do not view it as Brady? If they are incentivized to give it a broader construction, then perhaps we’ll have reduced the problem.

        1. SHG Post author

          Ziran, please don’t argue your point. It’s fucking idiotic, and you’re wasting my bandwidth.

    1. Billy Bob

      If your “solution” is any good, then why not apply it to the 2 million Americans behind bars? The highest, or one of the highest, incarceration rates in the world. What’s good for the goose,… If good behavior were universally rewarded for the folks, the walking dead, then bad behavior could be eliminated from the land, the incarceration rate goes to zero, and the prison-industrial complex puts itself out of busyness. Problem solved! Nirvana and Utopia all rolled into One.
      Are you a CDL or an animal behaviorist? This is one of the dumbest comments ever. Seriously stewpid. Am surprised SHG is not all over you like a rash.

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