When I noted that Houston criminal defense lawyer Mark Bennett had initiated the ADA (Asshat of the Day Award), I was not the only one.  Another reader who dotes on the Texas Tornado’s every word as I do was not quite pleased at receiving the award.  Some people are just naturally unappreciative.

This reader commented:

While some days I find myself in the Clint Eastwood “Unforgiven” frame of mind (”We all have it comin’, kid.”) I do not think you need “an inerrant godlike sense of right and wrong” to decide the appropriate rec to make on some misdemeanor theft case. Or for that matter, on ANY case. Hello, Mark, it’s our JOB. Part of what the taxpayers expect us to do.

All you can ask is that prosecutors seek justice, which means many things to many people but seems to consist mostly of enforcing the law and penalizing those who break it in a fair manner. We’re going to do that to the best of our ability, while the defense attorney advocates for their client (as they should.) No one expects us to agree all the time, but compromises are fortunately reached everyday.

In deciding what people “deserve” for violating a particular law, ADAs do not transgress into some cosmically unknowable realm. It’s just a matter of right and wrong and individual circumstances. Just because we’re on rare occasions wrong doesn’t make us asshats!

Ah, the arrogance of youth.  The options are “inerrant godlike sense” or just “do your job” and “seek justice.”  Sounds pretty.  Means nothing.  When the fallback position is so subjective as to avoid being susceptible to question, then it is beyond challenge or question, and answerable to no one.

First, this ADA winner reveals his bias by the assumption that it applies only to dispositions, the sentences offered during plea negotiations.  Thus, he omits entirely the idea that cops may come to the prosecutor with false or frivolous cases, or even an innocent defendant.  Notice how that never enters into the picture?

This was the point taken up by my commenter, Mark, when he argued that his prosecutorial office tosses one third of the cases brought to it by police, when the issue had arisen previously.  I responded that his reliance on this statistic standing alone was meaningless.  But Bennett’s commenter doesn’t even bother to recognize that this is part of the problem, putting him a few steps down the ladder of understanding and making him a particularly worthy award winner.

Turning to the limited point raised in his variation on the Nuremberg defense, Bennett’s commenter argues that “it’s our JOB. Part of what the taxpayers expect us to do.”  Making decisions as to plea dispositions is indeed their job, and what the taxpayers expect of them.  But that leaves open the question of what decisions they make, how they make them and whether they are fulfilling the taxpayers’ expectations.

I know plenty of people who share this misguided belief.  They believe that decisions must be made, so they make them.  What they fail to do is understand and appreciate the basis upon which good decisions are made, and mistake “action” for the competent performance of their function.  The issue isn’t about achieving perfection, though there’s nothing wrong with trying, but the inability to distinguish between doing your job and doing you job well.

Based upon the comment, a prosecutor flipping a coin has fulfilled the taxpayers’ expectations.  Jail or not?  Heads, jail it is.   My bet is that even taxpayers in Texas would be disappointed by this.

Then we have the “doing justice” component, which is the real point of Bennett’s award.  Is “doing justice” whatever some 25 year old, fresh-faced out of law school, decides it is?  Well, yes, that’s exactly what it is, according to the comment.  Every sheltered boy and girl with the ink still moist on the diploma gets to reinvent “justice” in his or her own image. 

Some, perhaps because of maturity or a greater breadth of experience before becoming a prosecutor, will give serious consideration to the wide variety of factors that apply in any individual case before settling on an offer.  Thus comes the caveat, there are always prosecutors who defy the simplistic comment left for Bennett to digest by demonstrating that they do understand their job, and that they do not believe that “justice” is whatever pops into their noggin in the middle of the night.  These are the good prosecutors, and they exist and deserve the appreciation of all for doing their job well.

But so many of those who fall within the group of award winners, the 25 to 28 year olds (and maybe even older) do not.  They haven’t lived enough of life to understand what they don’t know yet.  As anyone who has hit one of those milestone birthdays is painfully aware, we were all far smarter when we were young than we are now.

So what’s wrong with falling back on just “doing my job?”  It’s used to wrap around a young prosecutor as a shield to thoughtfulness, challenge and criticism.  It’s used to deflect responsibility.  It covers the eyes and ears of the youthful so they don’t have to see the harm they have done or hear the cries of the people whose lives are mindlessly destroyed by their poor decisions.  And by shielding them from the real world, they fail to learn to mature and to grown into a person capable of “doing justice.”

There are always going to be angry, self-righteous people who scream “how can you sleep at night” to those whose duty it is to make difficult choices.  If the prosecutor has considered and appreciated the impact of his decisions in the fuller context of “justice”, listening to all the arguments and then settling on a decision that accommodates it, he had the right to sleep very well indeed despite the constant screaming.  But if he’s done the equivalent of flipping a coin, then he has neither done his job nor done justice.  But he has won an award.