While Blonde Justice has been on a bit of a food binge lately, the former PD turned high power criminal defense associate complains of her youthful adversaries, 24 year old prosecutors.  Since BJ isn’t much older (she swears she’s not), it was good that she saw what comes into focus with increasing clarity over time:  The discretion involved in prosecuting others requires a depth of understanding that so many young people don’t, as yet, possess.

In discussing cases, both from the perspective of arguing with prosecutors about whether evidence shows that a crime was committed, or that the defendant is the person who committed the crime, as well as what to do with the defendant during plea discussions, I find there is a huge, often insurmountable, wall between us.  Most prosecutors are, as Blondie notes, kids.  They come out of the law school and head straight into a DAs office somewhere, swelling with the importance of their job and pumped up by the introduction of some senior ADA with at best a dog’s year on them about how they are saving the unfortunate victims of crime from misery. 

They are society’s protectors.  That’s a heavy gig for a kid.  It makes them feel very important, very self-righteous.  It is intended to make an impression on impressionable minds.

But in life, and in law, context counts.  Weighing good and evil, right and wrong is a balancing act that requires one to understand relative merit.  Remember the cop lecture where he said that everybody commits crimes?  He was right, as we all know if we have been around long enough to have an opportunity to do so and if we are honest enough with ourselves to admit it. 

But it takes a certain degree of understanding of human nature, human frailty, to appreciate whether a person deserves harsh treatment or made a stupid mistake under peculiar circumstances and deserves to have their life destroyed for it.  Young people see things in black and white because they lack worldly experience needed to see shades of gray.

This is not to say that there aren’t some bad people out there who commit bad crimes and deserve punishment.  This is to say that few young people have the depth of experience in life to make the decisions they are expected to make.  The problem is exacerbated by their being cloistered in a courthouse.

One of the recurring themes is that young prosecutors compare what defendants do to themselves:  Well, I was 18 onces, and I didn’t commit a crime, so the defendant has no excuse for not behaving just like the prosecutor.  Of course, the prosecutor wasn’t raised in the ghetto, with a junkie mother and no father, in abject poverty, going to a school where survival each day was considered a success and where the only way out was to become a basketball star or a drug dealer.  Or a cop.

Even young assistant United States Attorneys, who work a couple of years before getting the gig (and thus believing that they are far worldlier than their state counterparts) show their remarkable lack of depth of experience. In my white collar defense work, their comprehension of business and motivations is almost non-existent.  They know so little about how people who own businesses behave, and overlay child-like assumptions of propriety to reach absurd conclusions.  And they act upon their own certainty in a world of shockingly harsh consequences, and won’t consider that they might just not get it at all.

I agree completely with Blondie that we have put a loaded weapon in the hands of children, one that they are ill-equipped to handle.  Until they have learned that there are others in the world, with educational, cultural, intellectual and psychological differences, they cannot exercise discretion properly.

If this wasn’t bad enough, we have judges who have no greater depth of experience than our young prosecutors.

On the other hand, an old fool is worse than a young fool.

The other day, I was talking to co-counsel on a white collar case in federal court.  He was a former AUSA, having risen to a Chief in the United States Attorneys office, and he bemoaned the choices offered his client, explaining to me that his client had no shot at trial but no option given the harsh plea offer.  His client may well have done wrong, but not in the sense of a murder or rape.  His client’s alleged crime was economic, reducing the profit of a corporation.  The consequence, however, was as severe as if he had brutally murdered someone.

My co-counsel, who is an excellent attorney, was torn between being inured to the lack of options and his deep concern for his client.  He felt that sense of powerlessness because he couldn’t persuade the AUSA to understand how disproportionately harsh this was.  The AUSA felt nothing toward his client. 

As I listened to co-counsel’s complaint, I couldn’t help but think to myself, “when you were a young AUSA, holding enormous power over the lives of others, would you have done anything differently?”  My co-counsel was now qualified to do the job he had done in his youth.

It’s not the hatred of injustice that sticks with you as you age, but the recognition that these are all human beings.  When you are young, everything seems so simple.  It becomes so much more complicated when you start thinking about each one as a real person.