Tuesday Talk*: Should PDs Let Their Inner Prosecutors Out?

The problem isn’t hard to explain or fathom. Local prosecutors work hand in hand with the cops. They need each other, even if they don’t necessarily like or respect each other, and both know it. So when a cop does wrong, there is invariably an inherent conflict in expecting the local prosecutor to treat her as he would any other defendant. And it’s not just the one dirty cop, as cops come in packs, and the brethren get rather protective of each other, so the prosecutor faces a police force that might not appreciate that she’s just doing her job.

There are alternatives, of course. There are other prosecutorial offices who can step in when a conflict arises. There are cities and states with special prosecutors to address conflicts in general and cops in particular. And, in fairness, there are local prosecutors who have the integrity to do what the law requires, even if it means making enemies on the force.

Joshua Michtom, an assistant public defender at the Connecticut Office of the Chief Public Defender, offers an interesting alternative.

If mayors, police chiefs and legislatures are serious about instilling real faith in these communities, they should hand over full control of investigations to the one group of lawyers used to treating the police in an adversarial fashion, all of them experts in police rules and procedures: public defenders.

It might be a gross overstatement to call public defenders “experts in police rules and procedures,” but it’s true that they’re used to treating the police in an adversarial fashion.

As a result, our relationship with the police tends to be adversarial. This is not to say that we can’t be cordial and respectful, but there is an understanding that defenders are there to challenge and scrutinize the police, not work with them. Unlike prosecutors, we almost never have to worry about calling officers as witnesses for our clients. And unlike state police or departments from neighboring locales, we will never find ourselves collaborating with the police officers on a case, so we don’t have to worry about whether they will work with us.

That public defenders (though curiously only public defenders, as opposed to private criminal defense lawyers who often have prosecutorial experience before switching to the dark side, and often have hugely greater experience in the law than the vast majority of PDs doing their three year stint) are unlikely to find themselves conflicted is certainly a strong point.

However, is being adversarial toward the accused any better when the accused is a cop than any other defendant? Isn’t it true that we expect prosecutors to exercise discretion, to not just “hate” our clients because they’re presumed evil and guilty, and to seek a just outcome rather than a notch in the belt from another conviction? Does this suddenly cease to be valued when the prosecutor is a PD and the perp is a cop?

But being adversarial is only one point. There are others. Do PDs have the skillset of prosecutors? Do they know how to handle an initial investigation as opposed to a responsive investigation? Do they know how to run a grand jury, how to charge in an indictment, how to use their power to coerce people into saying what they need them to say even when they don’t want to? Can they handle the Reid Technique to get a cop to confess?

And then there’s one aspect of this idea that raises a surprising problem: Is there really a prosecutor buried within passionate public defenders yearning to come out and put people in prison? Not all people, but the “right” people?

It’s been an ongoing curiosity with the spate of “progressive prosecutors” that people who one would think are dedicated to fighting the power are now the power themselves, having been elected to a position that requires them to prosecute and, at least in some instances, imprison defendants. Some are even defendants of color. Is this really what they want to do with their lives? Have they always been prosecutors deep within, just burning for the opportunity to slam the cell door shut when it feels right and good?

They say inside every reformer is an authoritarian waiting to come out. Is this the moment in time when public defenders reveal themselves to be authoritarian prosecutors?

*Tuesday Talk rules apply.

19 thoughts on “Tuesday Talk*: Should PDs Let Their Inner Prosecutors Out?

  1. Jeffrey Gamso

    There’s no shortage of former prosecutors who now do criminal defense either as PDs or privately. There are fewer (at least in my experience) criminal defense lawyers who become prosecutors. Either way, there’s often something problematic in the transition – at least in the early stages.

    The real world just isn’t like law school where students are expected/required to argue both sides of every issue. The roles have very different mindsets. And there’s the thing about however much schadenfreude might lead a criminal defense lawyer to enjoy seeing a cop sent to the hoosegow, actually sending one (or anyone else) there is, at least for some of us, anathema.

    1. SHG Post author

      Exactly. Sending people to prison will never be my gig. Even cops. Let those with the prosecutor blood flowing through their veins do it, as it’s not for me.

      1. Fubar

        Subject to constitutional prohibitions, that leaves fines, property forfeiture, house arrest, stocks or pillory, public humiliation, deportation, and some others I can’t think of at the moment.

        For criminal cops and other public officials, I favor forfeiture of ill-gotten gains, forfeiture of any public salary and accounts accrued, permanent ban on employment by any government entity, and public humiliation that they must advertise at all times (on the person when in public) the crimes of which they were convicted.

        The latter would provide opportunity for cottage industry embroidering fashionable clothing with well wrought calligraphy messages in various languages stating “I was a crooked [cop, tax collector, legislator, or whatever]”.

      2. Casual Lurker

        “Exactly. Sending people to prison will never be my gig. Even cops.”

        If Cabán is successful with her court challenge, she’ll show you how it’s done. (In which case I’d fully expect the ratio of prosecutions of cops to non-cops to be the inverse of the present stats).

        As an aside, I’m still waiting for the agony of the Queens DA race to have some finality. Sigh…

  2. Ross

    Nobody expects the Spanish Inquisition!

    How about a Public Integrity Unit that prosecutes evildoing government employees, including police? Where those exist, they usually have their own investigators and don’t rely on police.

    1. SHG Post author

      Not every city is big enough to afford its own Public Integrity Unit, so it may not be a viable option.

      1. Jardinero1

        Public Integrity Units have their own unique set of problems, especially when they are run by partisan prosecutors with an ax to grind. Think of Rosemary Lehmberg during her glory years in charge of the Travis County DA office and its Statewide Public Integrity Unit. Whew, great times!

  3. CLS

    Been thinking about this all day. Thanks, SHG.

    I’ve known four people in my life who’ve transitioned from prosecutor to criminal defense. One actually went back to prosecuting cases after years working private criminal defense. One went from private practice to a State’s Attorney position, then to public defense.

    I wouldn’t think of any of them as authoritarian by a long shot. Three of the four were incredible attorneys who never cut corners, always played by the rules, and did the best job they could at the end of the day.

    Three of the four are heavily involved in their communities, do community service projects, and seem to possess no desire for wealth, power, or fame.

    Maybe it’s a genetic thing?

    I ask that question because the fourth was honest with me when I asked about the transition.

    “It’s easier to pay the bills when you’ve got a steady paycheck, and I’m still working on a few student loans. Plus I have a Louis Vuitton problem.”

    1. SHG Post author

      I suspect different types of people gravitate toward different jobs. For the PDs who want to prosecute cops, are they interested in doing justice, per Justice Jackson, or nailing the mothers? If the latter, what distinguishes them from the bad prosecutors they despise?

  4. Jardinero1

    Incentives matter and the proposal under consideration does address the incentives problem head on. Whilst we are considering fantasy solutions that will never happen, I propose one of my own that will never happen. Combine the prosecution and public defender pool. They would operate under one unified budget and have access to the same resources. When a defendant is arraigned, a prosecutor and a defender would be assigned by lot from the same pool. Lawyers would play both roles on a case by case basis. A wealthy defendant would still have the option of choosing his own private counsel. This would address a lot of disparities and bad incentives within the system. Sure, the wealthy could still hire Mr Greenfield. But for every other defendant, his defense would be on an equal footing with the prosecution. Lawyers who prosecute and defend might be more inclined to appreciate their colleagues point of view on the other side. Since equal resources would be committed to prosecution and defense, there would be more cooperation to resolve the case quickly and more justly.

    1. SHG Post author

      Since it’s TT, no reason why you can’t dive down your own rabbit hole after blithely dismissing the issue with “incentives matter.” Of course they do. Other things matter too.

      1. Jardinero1

        I am misunderstood. “Incentives matter” is my entire credo, the topmost way I view any public policy discussion, not something I dismiss. Absent from many public policy debates is how the incentives will influence behavior. The best part of utilizing PD’s is that it eliminates the negative incentives to prosecuting the police. I regret appearing to dismiss this.

        1. Skink

          You aren’t misunderstood; you can’t be understood. What you say is junk. Junk, like in the way useless stuff is left in a landfill. Say something or don’t. Is there any meaning to your words?

          We’re lawyers and judges in this Hotel. We thrive on the precise use of words. You use words spit from a blender.

          And stop using words like “whilst.” This isn’t 14th Century England. We aren’t impressed by your dopey word choices.

  5. The Real Kurt

    Yes.

    Oh – you wanted more?

    I find ominous parallels between today’s progressives, including prosecutors, and the Committee of Public Safety, circa 1793.

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