In Fairness To Prosecutors

A turf war has broken out between some good folks in the criminal law blawgosphere, which has ballooned from anger at  Mark Bennett’s schadenfreude following the drunk driving arrest of Harris County assistant Lester Blizzard.  The problem goes back to Blizzard’s arguing for life in prison for Jim Howard III for, you guessed it, drunk driving (that resulted in two deaths).  Blizzard argued that the court needed to “send a message.”

Former prosecutor turned defense lawyer,  Murray Newman responds by challenging the hypocrisy of criminal defense lawyers in general, Bennett in particular.

I never relished in the misery of a defendant that I was prosecuting.  I was always keenly aware of the repercussions prosecuting somebody had on collateral matters such as a defendant’s family, his job, etc.  

Somewhere along the way, people picked up the erroneous perception that prosecutors, and by extension, police officers do their jobs because they just truly enjoy ruining people’s lives.  They enjoy the power trip.  They enjoy the chaos.

Those same defense attorneys, who will gladly stand by any accused murderer, rapist, or pedophile, will vocally celebrate if a police officer or (fingers crossed!) a prosecutor gets arrested for anything.  Die-Hard civil libertarians who will (rightfully) proclaim any citizen’s Presumption of Innocence, suddenly forget that standard if the person accused is a public servant enforcing the law.

It is a double standard beyond comprehension to me.

Taken from a particularized instance to a generic battle, this blew up into a seething animosity lurking just below the surface between prosecutors and defense lawyers.  It spawned posts by  Matt Brown and Jeff Gamso about the relative nature of our work, our relationship with legal concepts and human reality, and the philosophical foundation for irony.  These are all big concepts.

I prefer to go small. 

Unlike some “of my ilk,” I don’t separate the criminal justice world into good and evil.  I’ve shared drinks and meals with prosecutors (more drinks than meals, though).  I believe that they serve a necessary function, and I appreciate their doing their job.  When I think they’ve gone over the top, I tell them.

Other criminal defense lawyers won’t sit at a table with a prosecutor.  They hate them for what they do. They turn our respective functions into a passion play, good and evil.  We are righteous. They are evil.  Life is simple.  They take pride in zealotry, and condemn their counterparts for being too much like them.

I don’t know what sort of person Lester Blizzard is.  Maybe he’s a zealot, the sort of prosecutor who wields his sword like the avenging angel doing God’s work on earth.  Maybe he was ordered by his supervisor to seek the maximum for Jim Howard.  Maybe he believed that life in prison was the right sentence for a particularly unsympathetic person who went on to kill two people while driving drunk. 

I reach no moral conclusion, though my views on drunk driving preclude my agreeing with the last explanation.  If there’s one thing I’ve learned in almost thirty years in the trenches, my views on such matters are not universally shared.  It doesn’t mean that those who disagree with me are wrong or evil.  Well, yeah, they are wrong, but that’s only because I’m right. Still, reasonable people may differ, and disagreeing with me doesn’t make someone a bad person.

Something different, however, is at stake here.  We are all held to account for the things we say and do when we take a stand.  Lester Blizzard took a stand.  He announced to the world that drunk driving was a wrong of such magnitude that man must never again breath free air to send a message to all the others who would engage in similar conduct.  Blizzard drew a line in the sand that, he argued, must not be crossed.

And then he goes and gets arrested for crossing it.

That’s a problem.  Not because of a double standard, where police and prosecutors are inherently undeserving of the same presumption as everyone else.  Not even because of the wall separating good and evil in the minds of zealots.  But because one guy, Lester Blizzard, uttered words from his lips for the world to hear that drew an immutable line in the sand for everyone.  Everyone includes Lester Blizzard.

I’ve lived my life taking strong stands.  At no time did I delude myself into thinking that I could be so bold, so arrogant, as to think that if I spoke out, clearly and loudly, against something, I wouldn’t get my butt handed to me on a platter if I got caught violating my own rule.  There would plenty of nice folks out there happy to call me a liar, a hypocrite, a scoundrel, if I didn’t adhere to my own set of beliefs.  And I would deserve it. 

There was never any doubt in my mind that my words would come back to haunt me, and so I’ve tried to conduct my life in a way that comports with the things I espouse so that I wouldn’t have to bear that criticism.  I’m human, and thus frail, and thus haven’t always done as well as I should have.  But by and large, I’ve kept to my words.  I’ve taken some hits for being true to my beliefs.  If I was willing to play the game, I could be a rich man today, but I’ve chosen integrity instead.  It’s a costly choice.

So Lester Blizzard was arrested for drunk driving.  Maybe he didn’t do it.  Maybe he did, but only in the legal sense, meaning .08% BAC but in complete control of his faculties and perfectly safe to others on the road.  Nothing Mark Bennett said suggests that he would take pleasure in seeing Blizzard convicted, or disbarred, or sent to prison for life.  It far simpler.  He held out the irony for the world to see. 

If Lester Blizzard was right to argue for life in prison for Jim Howard in order to send a message, then Mark Bennett is right to point out Lester Blizzard’s fall from grace.  That too is a message that needs to be sent, because prosecutors sometimes forget that they’re part of the same fail race as the rest of us.  One of the fundamental premises of criminal law is “there but for the grace of God go I.”  There goes Lester Blizzard.  Maybe tomorrow, it will be Murray. Or Mark.  Or me.

Reality has a funny way of teaching all of us lessons we need to learn, but it sometimes does so in particularly unpleasant ways.  Maybe the lesson for Blizzard is that he shouldn’t be so strident about denouncing an evil and demanding a sentence that, after some more deliberation and less rhetoric, really could happen to anyone. 

If there’s a broader message to be found in this situation, it’s that the higher you put yourself on a pedestal, the farther you have to fall.  Put another way, neither side sits at the right hand of God, and we are all subject to human frailty.  Wearing prosecutor pants doesn’t make one the Angel of Righteousness.  Neither does wearing a criminal defense tie.

But I’m not done yet.

In a comment to Bennett’s post, Murray makes the point that Mark, having written mean things about prosecutors now and in the past, shouldn’t expect to his schadenfreude to be easily forgiven.

As far as the issue of what my initial blog post was about, there is something very disingenuous about being a member of the defense bar who celebrates the arrest of someone just because they are a prosecutor. That’s foolish, and I’ll be damned if there isn’t old Mark Bennett justifying why the pleasure is there.

You are certainly entitled to your opinions, but don’t be so outraged that others find you condescending and pompous and say so in response.

Like so many things in life, criticism is a two way street.  Whether Bennett “celebrates” Blizzard’s arrest, he certainly didn’t endear himself to Harris County prosecutors or former prosecutors who still feel the weight of the sword they carried in office.  It may not be fair for Murray to compare the two, but fairness doesn’t enter into the mix.  Just as Blizzard must face the consequences of taking a stand, so will Mark Bennett.  

There may be some angry prosecutor who goes out of his way to make Bennett’s life a bit more miserable tomorrow because of the words he wrote yesterday.  Bennett no doubt realized that might be the case, and yet chose to write them anyway.  He will tough it out.

We all bear the consequences of our choices, one way or the other.  If you can’t take the heat, then hide under your bed and say nothing.

10 thoughts on “In Fairness To Prosecutors

  1. Alex Bunin

    I have now read all the posts you reference, and I am just glad to see lawyers looking at the big picture. Nice summary and perspective. It’s good to have so many great blogs to read.

  2. SHG

    Hey Alex,

    Congratulations on the new gig.  You were very much appreciated up in NDNY, and Harris County is lucky to have you.  Those boys down there are bit rough around the edges.  Best of luck smoothing them out.

  3. Mark Bennett

    I hope those Yankees’ effete ways haven’t rubbed off on you too much, Alex, but if they have we oughta be able to get you back to normal pretty quickly.

  4. Alex Bunin

    I pride myself on culturally approrpriate manners, whether I am fixin’ to do something in Texas, or I fuggedaboutit in New York.

  5. Alex Bunin

    When you say Texas, I presume you mean Houston. Otherwise, you are on your own. Sometimes, visitors assume they can pop over from San Antonio or Dallas for lunch, without understanding that is a plane ride away.

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