Mar. 23, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Fault Lines contributor Andrew King, Assistant Prosecuting Attorney in Delaware County, Ohio.

Q. You were one of those annoying Doogie Howser types, doing your first two years of college (at THE Ohio State University) instead of your last two years of high school. No matter how smart a kid you were, that’s a little early to have a firm idea of what you want to do for the rest of your life. You majored in history. Why? What was your plan for the future? No thoughts of science, medicine, Wall Street?  What makes a high school junior decide on history as the path to the future?

A. You probably just forced everyone under 30 to Google the Doogie Howser reference. Contrary to implication, I was not a baby gunner. Instead, I was constantly hounded by my teachers for not living up to my potential. Principal Strickland from “Back to the Future” probably would have called me a slacker. So, the decision to start taking college classes was really the confluence of a lot of circumstances. I was bored a lot in school; a kid four or five years older than me had done it; one of my teachers was particularly supportive of the idea; I had good enough grades; and if you ask a Psychology 101 student, I was over-compensating for my father dying a few years before.

And, yes, I was interested in pursuing medicine. Because, unfortunately, math did not come easy to me, and with close to zero study habits, medical school was out of reach. A high school junior, who is still a teenage boy, does not make terribly great and well thought out decisions. Once my idea of pursuing medicine fell through, I sort of drifted through college. But history came easy to me and was interesting; so, as the path of least resistance, I chose that as my major.

The decision to pursue a history degree was not a particularly life-changing decision. Except for the fact that such a major limited my career choices and likely factored into becoming a lawyer. A more consequential decision I made was to get married to a girl I met at Ohio State. I was 18. While it was not always easy, it has worked out for over two decades.

Q. From college, you went to Capital University Law School. What made you pick law, or was that your only choice as a history major?  And Capital? Was this an Ohio thing? Did you go into law school with the intention of doing criminal law? Did it come to you during law school, or was that just where you ended up?  And what did being a law review editor do for you?

A. As I said, I was not a pre-law gunner. Neither was I reading Brown v. Board of Education for fun, nor was I in class trying to impress my professors with my baby-lawyer mind. Like a number of other people, I sort of defaulted into going to law school. Between graduation and law school matriculation, I had a bunch of jobs, such as substitute teacher, PC technician, janitor, and customer service representative in a call center. And I had a bunch of career opportunities that had failed to work out. For example, I was hired to do some work for a tech company as a consultant. After six weeks of waiting to get a start day, I made what I thought was the perfectly logical decision to call and find out what was going on. The guy in charge must have been a maniac because he viewed that as a breach of protocol and kicked me off the project before I started. That probably worked out for the best; who wants to work with someone who’s so disrespectful of human dignity? And another time, I literally received a call to tell me that I was hired and then, an hour later, got a call back to tell me a mistake was made and that I was not really hired.

So there I was, married, with a kid, working a crappy CSR job in a call center. But then I made the fateful decision to prepare taxes for a year. And for some reason, I actually rather enjoyed the work. Yeah, really I did. Then I remembered that I had taken the LSAT and there were these lawyers called tax lawyers; so, I applied to law school. (Thank you “LA Law.”) Because I was the primary wage earner, I had to pick a law school with a night program. Capital University was the only local school with one, so it was an easy decision.

When I started law school, I had some life experience under my belt and was raising a family. I was determined not to let the same juvenile mistakes of inattentiveness and low effort haunt me. So, I did as much as I could possibly manage to squeeze law school for everything it could give me. I did law review, was president of the Federalist Society, went to Ted Olsen’s house for a BBQ, and so on. I was on a mission to prove to myself that I could do better than I had before.

It worked out well, I think, especially considering that I was raising two kids with my wife, working a full time job, often working two part time jobs, and going to class at night. I do not know if most of that stuff ended up really mattering objectively, but subjectively it did to me. Perhaps I became a gunner after all. You’d have to ask my classmates what they thought.

The decision to get involved in criminal law was largely due to the late Max Kravitz and Judge Algenon Marbley. Max Kravitz had successfully argued, in 1978, at the Supreme Court, along with Tony Amsterdam, that Ohio’s death penalty scheme was unconstitutional. He was well-acquainted with Judge Marbley, for whom I had interned. Max recommended I do some criminal work, and Judge Marbley got me on the CJA list for the Sixth Circuit. That was the beginning of my involvement in criminal law, even when I was doing civil law.

Q. Coming out of law school in 2006, you did a year at a personal injury firm before leaving to clerk for Judge Roger Kline.  What did you think of civil litigation?  Did you leave because of the opportunity to clerk for a judge, or was it the implosion of the legal market in 2007?  By the time you started with Judge Kline, did you know what type of law you wanted to do going forward? Did clerking for a judge help you to choose to be a trial lawyer? How valuable was that clerkship in learning what judges found persuasive?

A. I fell into a really good situation in my 1L summer. I worked for a law firm that had just the year before finalized the largest jury verdict in the state, $51.5 million. It was against Anthem Blue Cross and Blue Shield for bad faith. It was a really terrible case. As is often the case, ugly facts make big jury awards.

They were a good bunch of lawyers. Being a busy, successful firm with only one associate, I did a lot of work that associates in big firms don’t get to do for their first several years. I drafted countless dispositive motions, discovery requests, pre-trial statements, witness disclosures, and so on. The firm was diverse, handling ERISA, insurance litigation, civil rights, and wrongful death; so, it was like drinking from a fire hose of knowledge.

My primary mentor there was a generally well-respected writer and the go-to-guy when plaintiffs’ lawyers had a question or the trial lawyers’ association needed an amicus. By the time I passed the bar, I had done everything but appear in court and examine witnesses. And they trusted me enough that I was arguing a court of appeals case on the day after being sworn in as a lawyer.

After interning for a couple judges, I definitely wanted the experience of being a law clerk. Yet, I was not in a hurry to leave because I was making good money. But fate accelerated that plan. The law firm had expanded into doing qui tam litigation, and opened a satellite office in another city. It turned out that my bosses were much, much better lawyers than businessmen. The firm went through about a year and a half of downsizing through partners splitting up, forced retirement, shedding staff, and ultimately moving the main office and closing the branch office. A first-year associate simply was a luxury they could no longer afford. So, I got the chance to work for Judge Kline, without the temptation to hold on to the nice associate’s salary.

Q. After Judge Kline — and this will likely come as a shock to many — you were a public defender in Columbus.  Why defense?  Was this a choice, or just situational?  You certainly had the opportunity to appreciate what it means to be the accused. What impact did that make on you? Were you comfortable defending? Was this what you wanted to do?  What did that experience leave you with going forward?

A. The decision to become a public defender was because of a pair of scissors. My experience was that most lawyers had a lot of room to improve, particularly with their brief writing. And when you read the transcript and looked at the docket, it seemed to me that more than a few lawyers were not adequately prepared when they went into court. That is, except for the state public defender. They routinely had the best briefs, they were the most aggressive at trial, and they generally had the best legal theories. It was a remarkable difference between them and almost everyone else.

One of their attorneys successfully made an insufficiency argument before the court. The case was basically a domestic violence case where the wife stabbed the husband with a pair of scissors. As I recall, the prosecutor indicted the case as a relatively serious form of assault. The defendant was looking at significant felony time, although the victim was not actually injured. The appellate attorney picked up on a key fact that the trial attorney completely overlooked—they were craft scissors without tips. She essentially stabbed him with two blunt pieces of plastic. The attorney included a picture of the scissors in the brief and won.

So, when my term was done, I applied to work at one of the county-level branch offices that do felony trials. I had been a civil litigator, a CJA Panel Attorney, and after the clerkship, I felt like I was ready to really mix it up. It turned out to be the weirdest job offer/rejections I had received. The branch chief felt like my skills would be wasted as a trial attorney and sent me up to the state office to be considered by the appellate division.

Initially, I was in the felony appeal and post-conviction division, but then transferred to the death penalty division. What I learned from being a public defender could fill pages and pages. Generally speaking, I did not have reservations defending my clients. Unfortunately, what I observed as a law clerk was reinforced doing criminal appellate work—there are far too many substandard criminal defense attorneys.

Besides the disparity in money, and that open discovery was not the rule for much of my time back then, my impression is that many of the bad attorneys adopted a volume-based business model, which I understand for pecuniary reasons. It’s not uncommon for personal injury attorneys to do that, but a lazy PI attorney might cost a client a few thousand dollars in settlement. An inattentive criminal defense attorney can cost the client years of prison time. And too many of them were not aggressive enough in their defense, which still puzzles me. This was particular true when it came to forensic experts.

Q. While a public defender, you did some serious cases, trials and post-conviction work.  You were one of the public defenders who represented some nasty killers, Sidney Cornwell when he was spared execution based on the “small testicles” defense, as well as Kevin Keith, whose death sentence was commuted. You were no slouch as a PD. But how did your first trial as a PD go? Were you scared to death, or raring to go? Looking back now, did your first trial go the way you thought it would? Any major screw-ups? How did it feel to get your first two-word verdict?

A. Being part of the machinery of death is difficult to describe. The time I was there was probably unlike any time before or after, and my co-counsel were great attorneys. The state was executing defendants once a month — a couple times, twice a month. There was a lot of pressure, some successes, and some failures. It’s hard to describe the feeling of sitting in the room next to the death house watching the clock and waiting for the phone to ring. And then someone is dead. All of it happened according to schedule and plan. It’s an indescribable feeling.

It is a heavy burden. As counsel, you are often the only person the inmate has frequent contact with, and they are placing a lot of hope on you. Screwing up is not an option. You miss a claim, he dies. You fail to find evidence, he dies. You don’t talk to a witness, he dies.

I was fortunate to be part of the teams that got two commutations. Kevin Keith was a case of actual innocence with national and international interest. Cornwell was a case of a young gangbanger, turned reformed man, who was basically seeking mercy. They were two very different cases that required two totally different approaches. What was interesting in both was how post-conviction counsel impacted the later course of litigation. In Keith’s case, counsel dropped the ball and legally doomed his innocence claim. On the other hand, Cornwell’s attorney somehow suspected that he might have Kleinfelter’s and argued it. That alerted us to the possible claim, which is what formed the basis of his relief.

You really get to know these men as the people they are, not as some caricature. The most difficult thing about the death penalty, I think, is when defendants reform in the decades after the crime. Cornwell was a gangbanger who shot wildly into a house and killed a kid. But when his number was called, he was almost twenty years older. You can’t execute the teenager who shot a little girl. You can only kill the man that kid became. Believe it or not, I carry those experiences with me even as a prosecutor.

Capital litigation is probably the most challenging type of litigation. For me, it brought together a lot of my civil and criminal experience. We did a lot of good work there, and I wouldn’t trade it. It’s hard to say that I enjoyed it because of the stakes, but it definitely was fulfilling. Part of me still misses it. And I am rather certain I am the only prosecutor to have received an award from Ohioans to Stop Executions.

Q. After working as a PD, you struck out on your own. Was there a reason for leaving?  Was there some conflict with what you were doing as a defender and what you wanted to do as a lawyer? When you hung out your shingle, did you plan to continue in criminal defense? How did that work out? Was opening shop what you thought it would be? Your practice was more general than criminal. Was that a matter of choice or necessity?  How did you like being the big boss and janitor?

A. The Ohio Public Defender’s Office has a colorful history. At one point, Billy Milligan, who was found not guilty by reason of insanity, worked for the office that had defended him (so I was told); the office had a couple directors that had basically been fired; and it had a few attorneys that had been disciplined for a variety of conduct.

I didn’t realize it when I started, but the office did not have a good reputation. You can do a LEXIS search and find cases where judges called out attorneys and the office for poor performance, sometimes by name. Unfortunately, it turned out that it was somewhat deserved. As if hiring a guy who successfully beat a murder charge by claiming multiple personality disorder was not reason alone to question the management.

When I started, the Director was still relatively new and trying to turn around a bureaucracy that had lost some of its professionalism. He took over from a Director who was fired for ethics problems. So, there was a lot of turnover in the line attorneys and management. Personally, I had something like six supervisors in nine months. As much as I liked my coworkers and the work, the office was too unstable and poorly managed. Now, years later, from what I hear and see, I think that the Director has put things back together. It is never easy to change an entrenched office culture. So, he deserves credit for doing that.

I was the stereotypical general practitioner, taking a wide range of jobs. I did everything from handling misdemeanors, federal criminal appeals, dissolutions, employment law, contract work, document review, and commercial law. At the time, my kids were still young and my wife had returned to school to become a nurse practitioner. So, it was nice to have greater control over my schedule and make sure my family’s needs were being met. When I was a public defender, it consumed my existence and my family suffered.

Ultimately, I never really settled into being a solo practitioner. For almost my entire legal career, I had been part of a team. It was always beneficial to walk into someone else’s office and get their ideas or get feedback on a brief. When I became Of Counsel at a firm, it reminded me of the benefits of working with others and being part of a team.

Also, there was the pesky problem of cash flow. In the first season of “Better Call Saul,” Jimmy is working out of a closet trying to build his firm. If I had been a young, single guy, then it probably would have been no problem. But I had a mortgage to pay and kids tend to need things. In many ways, I was back to where I was during law school, working a lot of different jobs and spread all over the place. I think every solo practitioner can relate. The upshot about all this is that I did not enjoy it very much. So, when my wife was in a stable job and had her studies under control, and my kids needed less attention, I began to look for ways to get out of running my own practice.

Q. Your solo practice lasted three years.  Was it as hard, or easy, as you thought it would be?  Was three years enough, or too much?  From there, you took a 180 and went to work for the Delaware County Prosecuting Attorney. That’s quite a shift from public defender. Was that where you wanted to be?  Was there a prosecutor hiding inside your PD suit the whole time? Any cognitive dissonance going from keeping them out to putting them in?

A. I have to give my current boss a lot of credit for taking what looked like a risk on me. As I said, the Ohio Public Defender’s Office was a damaged brand. I applied for another judicial clerkship, and the judge treated me like a circus animal, a thing of curiosity. My interview with him was basically him telling me his opinion on the Public Defender’s Office and asking me to respond. On top of it, I drove three hours for such an uncomfortable interview.

Plus, my boss had worked in the Attorney General’s Organized Crime Unit and had some peripheral involvement with the Kevin Keith case. So, I do not think we necessarily saw eye-to-eye on that case. Despite all that, she hired me, and I have never looked back. It’s the best office I have worked for, and she’s the best boss I have had. (Judge Kline was great too, but the dynamic of being a judicial law clerk to an appellate judge is not comparable.)

Here, the prosecuting attorney is both the criminal prosecutor and legal counsel to the county and many local governments. What attracted me to the prosecuting attorney’s office was the breadth of the work. It was everything I liked about being a solo practitioner and death penalty litigator, without the accompanying downsides.

Among the public defenders of similar age, I think we all understood the harshness and unfairness that the criminal justice system can dole out, but at the same time, perhaps being raised during the War on Drugs and after the civil rights era, we also could acknowledge that there was need for putting many of these defendants away. Cops and prosecutors could do bad things in individual cases, but my general sense is there we did not have the pervasive mistrust and assumed an invidious motive.

On the other hand, our clients were rarely with clean hands. For example, a couple of times, we had women who fell in with a bad boy, who got some time in prison. These guys would often convince their girls to do something criminal for them, like illegally convey something into the prison. As a human being, you certain would feel bad for them and could easily argue that they deserved mercy. But on the legal side, it was usually pretty cut and dried that they committed the crime.

When you’re fighting for the little guy as either a criminal defense attorney or personal injury lawyer, it’s pretty easy to rail against the system. And see yourself as the noble David trying to slay Goliath. Personally, most of my family is either Irish or Appalachian hill folk. Consequently, I think I come by my suspicion of authority honestly. The idea of becoming part of the State was intellectually the most difficult part. And there are many days that I feel like Ron Swanson. But fortunately there are a couple kindred spirits that have a similar outlook, so it made it a much more comfortable transition.

Q. As a prosecutor, you’re given a great deal of discretion as to whom to prosecute and, in the event of a plea bargain, fashioning the right deal. Do you have any philosophical approach?  Would you consider yourself an easy touch or a tough guy?  Are there certain types of crimes that you feel are particularly harmful, beyond the obvious? How about the so-called victimless crimes, drugs or prostitution? Do you view all crimes as “violent” in the sense that someone is harmed by any crime?  Is there any crime you feel is less culpable, and should be treated more gently?

A. In our office, the decision to indict is generally made by the grand jury prosecutor, who then hands off the case. Our office generally has the approach to charge the most serious conduct and be ready to go to trial on the indictment, which strikes me as the right approach. Of course it does not always happen that way, but that is the general idea. You shouldn’t be over-charging someone to get them to plea to something else. Nor should cases be indicted prematurely where you happily take a quick plea to avoid preparing for trial.

If you indict a life rape, and then drop it down to a lesser charge and a recommendation of just a handful of years, then that sends mixed signals and weakens accountability. Is the guy a rapist, and you’re too lazy to prepare the case? Or did you overcharge a guy to force a plea? I can appreciate, as a defense attorney, showing your client that you got the charges dropped helps with client management. But it’s really not the role of the prosecutor to empower the defense attorney to lean into the client for a plea.

Prosecutors should generally avoid making sweeping, top-down policy decisions on issues such as marijuana legalization or prostitution. For example, a prosecutor can personally believe that either of those things should be done or the death penalty should be abolished, but that’s not the prosecutor’s role in the process. For example, Hamilton County Prosecuting Attorney Joe Deters supported marijuana legalization, but as far as I know, his office never stopped prosecuting marijuana-related drug crimes.

As I suggested above, I think the generation younger than the Boomers are more open to decriminalizing a number of things. So, those are probably issues that eventually will be taken on by the policy makers. But until then, I am not convinced that it is a proper use of discretion to refuse to prosecute entire classes of crimes simply because you have a personal disagreement with some of the laws.

The question of mitigation is an interesting one. I had a case of a guy for whom I managed to get a re-sentencing. The guy had a terrible trial attorney, had a factual innocence claim supported by the victim, and got a max sentence. But he had a relatively clean record, good reports while in prison, family members spoke on his behalf, the victim asked for mercy, and was doing all the right things while inside. The judge ignored all of it and said that, while interesting, it was not relevant to sentencing and gave the guy the same sentence. On the other extreme, in death penalty cases mitigation is essentially a constitutional right. So, I do think that judges should probably have more guided discretion to depart downwards, rather than the rules always requiring a ratcheting upwards.

Q. Ohio has been through a lot of prosecutorial drama and trauma, with the killing of Tamir Rice apparently being the impetus for Tim McGinty losing his primary race for Cuyahoga County prosecutor. What’s the sense of prosecuting cops? Would you rather not be in that position? Is hard, if not impossible, to go after a police officer who you worked with? Do you find cops’ decisions to fire more understandable because of an inherent sympathy?  What about the old public defender in you? Is it okay with him too?

A. I wrote about the issue of prosecuting cops for Fault Lines. The lesson I think local prosecutors are going to take away from what happen to McGinty and Alvarez is that it is probably best to avoid the appearance of conflict altogether, and bring in an outside prosecutor to handle the case. I do think in many cases local prosecutors can prosecute local law enforcement. Before Rice, most prosecutors would take cases to the grand jury. And usually the no bill was deemed sufficient. But not anymore. Like most things in life, you have to adapt to the changes.

Part of my job is representing and advising the Sheriff’s Office and another local police department. Every elected prosecutor in the state, except McGinty interestingly, represents their county’s sheriff. So, in that capacity you get to see the sausage getting made.

Based on my experience, most people get into law enforcement for the right reasons and truly want to be a good cop. I have literally sat across the table from them and interviewed them. Certainly, there are some people that should not be law enforcement officers. The sad part about that is how difficult it is to get rid of the bad apples. I believe Radley Balko has written on this issue to some degree. I completely understand that if you’ve devoted twenty years to a job and have a pension, you don’t want the newly elected Sheriff to come in and arbitrarily destroy your career. But in most cases, it’s the least deserving that get the most job protection.

I think our office does a pretty good job of fearlessly going after cops that break the law. And part of that may be due to my boss’s background in organized crime, which sometimes involved elected officials. There are probably a few prosecutors who should be more aggressive and are not. And I can see the desire to have something of a backstop in those cases. I just have yet to see a good suggestion.

Q.  While a lot of Fault Lines readers disagree with you, they appreciate the fact that you’re willing to write and, well, don’t hold back, knowing that your views are likely to receive some harsh scrutiny. What they may not appreciate is that you’re able to write because your office allows you to, which is really very impressive. They must have a great deal of faith in you to give you that freedom. How concerned is your office with what you have to say? How concerned are you about speaking your mind, knowing that many readers aren’t particularly simpatico with the prosecution? Do you sometimes soften the blow, or strike a little harder, because of it? Do you think people really understand and appreciate the need for the prosecution function? Do they get it?

A. This will probably be something like the twentieth time I have complimented my boss, but she deserves a lot of credit. I keep her in the loop regarding what I am writing and she has been supportive. I recognize that she’s putting trust in me, so I do keep that in mind when I am writing. Nothing should reflect poorly on her or the Office. But that consideration does not really impact my opinion.

I do my best to call them like I see them. I definitely do not soften the presentation, but you could say that, because I am presenting an unpopular point of view, I tend to be less nuanced about some positions. I can see the other side of issues to be sure, but it’s not particularly interesting to read me argue with myself. So, I think that is more a matter of style and tone than content. Of course, that led my co-blogger to call me a heel (as in a wrestling villain). But I think that is good. It means that what’s written goes deeper than superficial.

It is my belief that a lot of detractors would do well to mind G.K. Chesterton’s admonition about tearing a fence down before understanding why it’s there. As I alluded to before, it’s pretty easy to cast stones at the police and prosecution, but there’s often a reason why things are the way they are. That’s a perspective I work to bring. It may be that the fence was put there for the wrong reasons, but we have to get there before demanding we remove it.