James Strode hid his face with a scarf the evening he walked behind a counter in a Seattle Rite Aid pharmacy, grabbed a clerk by the throat and threatened to stab her or other workers who heard her call for help on an intercom.

“Give me all the money,” he barked. “Somebody better give me some money or someone is going to get stabbed.”

Bad dude, this James Strode, with his “criminal career that spanned two decades and four states.”  But he wasn’t in that Seattle Rite Aid in November, 2006, because of criminal-coddling judges or shifty shyster defense lawyers.  Not even because of Keystone cops.

Strode might well have been in federal prison at the time of the Rite Aid robbery. But the bank robbery conviction and sentence that could have kept him there were wiped out in 2000, when an appeals court concluded that the federal prosecutor in charge of Strode’s trial had “crossed the line” by making improper arguments to the jury.

So instead of keeping Strode behind bars for a decade, the U.S. Justice Department agreed he could be released in less than half that time. About 13 months after he got out, Strode held up the Seattle pharmacy.

But for the prosecutor “crossing the line,” James Strode would have been in prison and incapable of threatening or harming anyone.  Not as obvious a harm as prosecuting the innocent, and thus leaving the guilty free on the streets, this product of prosecutorial error is rarely given much thought.  In their zeal to convict, few prosecutors give much of a hoot at going over the top.  They want to hear guilty, and don’t care much about what they have to do to get there.  They believe they are saving society, and the end justifies the means.

Aside from the internal moral rationale that pushes a prosecutor over the line, consider this:

A USA TODAY investigation has documented 201 cases since 1997 in which federal courts found that prosecutors violated laws or ethics rules. Each was so serious that judges overturned convictions, threw out charges or rebuked the prosecutors. And although the violations tainted no more than a small fraction of the tens of thousands of cases filed in federal courts each year, legal specialists who reviewed the newspaper’s work said misconduct is not always uncovered, so the true extent of the problem might never be known.

USA TODAY found that in at least 48 of those cases, the defendants were convicted but, because of prosecutorial misconduct, courts gave them shorter sentences than they would have received otherwise. If prosecutors’ chief motive for bending the rules is to ensure that guilty people are locked up, their actions often backfire.

No doubt USA Today provides these numbers to show how terrible and serious this problem is.  Of course, the numbers are laughable.  A prosecutor has essentially no chance of getting “rebuked,” and a verdict has only a slightly greater chance of getting reversed for prosecutorial misconduct, than the prosecutor has of being held to account for an ethics violation. 

To the extent that an excess of zeal results in a dangerous person on the streets who would otherwise be imprisoned, then they are very much part of the problem.  Ironically, when judges brush off their improprieties, let the bad dudes get what’s coming to them and let the prosecutors get away with it.  It’s not that judges necessarily like it, but how else are they gonna keep the mutts off the street and the citizens safe?
You’ve got to break some eggs to make an omelet.

USA TODAY’s examination, based on tens of thousands of pages of government documents and court records, found that such arrangements — including promises of lenient sentences — are common when courts overturn convictions because of misconduct by prosecutors. They bring a quick end to cases that could embarrass the department or those in which the passage of time weakens the government’s case. In most cases, the arrangements call for defendants to plead guilty to a crime in exchange for a shorter sentence than they originally received.

Curiously, it doesn’t seem to dawn on anyone that the convictions may have been the product of an overzealous prosecution of an innocent person, and the “lenient” plea deals actually an unduly harsh result where an innocent took a plea of convenience to cut his losses.  Not every defendant turns out to be James Strode, the bad dude.

While I appreciate that USA Today has put in a significant amount of time and effort to enlighten their readers, a segment of the public generally not receiving New York Times’ home delivery, and articles like this tend to make concern over prosecutorial misconduct more palatable.  But much like the  earth-shattering revelation that prosecutorial misconduct happens, the force of their argument is sadly underwhelming.

To most of the public, meaning those who aren’t under indictment and don’t have a loved one in prison, they are more than happy to have a few of their fellow citizens take one for the team.  Better that an innocent goes to prison, as long as they aren’t the innocent, then someone puts a knife to their throat. 

While they aren’t thrilled that James Strode was free to hold up that Seattle Rite Aid, that’s a complete outlier.  The reporters found, after going through tens of thousands of pages of court papers, a total of 48 post reversal pleas?  Forty-eight?  Who in their right mind isn’t thrilled with those odds?

Of course, there’s a reason they call it prosecutorial misconduct.  There are some excellent reasons why it should happen.  There are judges who sit on the bench as trials are conducted who are supposed to make sure that it doesn’t happen.  So why does USA Today feel compelled to dredge up minor league problems that are so incredibly unlikely as to convince no one of anything?

Why isn’t it enough that prosecutors should not engage in misconduct?

Because people believe that the end justifies the means, and as long as they believe that the ends are what they support, they aren’t going to care a whole lot about how prosecutors get there.  And most of the time, the vast majority of the time, the public is happy as long as someone is convicted.  So what if the prosecutor crossed the line?  As long as they convicted the bad dude.

H/T Pogo was Right