Your friendly neighborhood prosecutor.
So, as of a few weeks ago I’m banned at Scott Greenfield’s popular Simple Justice blog. Here’s the scene of the crime. In reply to Scott’s last comment (“My favorite thing about your comments is your self-deprecating metacognition and utter lack of defensiveness. It’s what I admire most about you.”), I wrote: “You too can become self-deprecating and lose your prickly defensiveness with a little effort. I’m rooting for you. You can do it!” For that Scott (SHG) sent me an email banning me from his blog and stating that my last comment was “evidence of your behaving like a pompous little asshole.” Now, if in fact SHG’s comment claiming to admire me was not intended by him to drip with sarcasm, I would wholly agree with his assessment of my behavior, as I would have drastically misunderstood him. However, given what I”ve seen of SHG’s “prickly” demeanor towards other commenters who venture to comment on his blog, I have no reason to think I misinterpreted him.
Here’s a notable example. What’s notable about commenter John R.’s comments in this thread is their good sense and uprightness. Nevertheless, SHG responds to his first comment by calling his thoughts myopic, naive, childish and silly, among other things. After John R. patiently explains in further comments what should have been evident in his first comment, by the end of the thread SHG’s “quibble” has dwindled to “[y]our problem is that you care.” I found these remarks by John R. to be especially worthy:
Occasionally, you have an innocent defendant; and then the system is hell bent on murdering him, usually figuratively but sometimes literally, and always morally and spiritually. And then you have been thrust into a desperate moral struggle where you are at a severe disadvantage.
In that kind of circumstance, the concept of “practicality” does not apply, nor does its subset, “finality”. It is like war. It is a fight to the death. Finality and practicality in those instances are just euphemisms for surrender.
. . .
The members of the establishment team, which includes police, prosecutors and judges, just naturally chafe at an assertion of innocence. To them it is moral effrontery. They can’t help it.
Jurors are less inclined toward reflexive hostility to innocence claims, but they are still affected by what I call the “institutional momentum” which is present at every trial I have done.
Winning a trial for a criminal defendant is incredibly difficult. I think it’s one of the most difficult things on earth to do. Having a winnable case is a very long way from winning it.
Of course you’re right we have no magic ways to tell the innocent from the guilty, although in particular cases the DNA stuff comes pretty close.
But still there are times you can know, because the evidence tells you.
And that’s when you’re up against the establishment hostility. They see the same evidence but they get stubborn. You’d think it’s maybe because they don’t understand, but then their hostility and panic when you try to actually use the evidence betrays them: they know exactly what the evidence means, otherwise they wouldn’t be so hostile.
John R.’s observations caused me to reflect that where a lawyer is convinced that an innocent man has been sentenced to decades of his life in prison after a tilted and twisted trial, there is no room for actually respecting those who did it to him based on niceties like “professionalism.”
John R.’s observations also caused me to reflect again on the Gabrieles, a local eye doctor and his wife who decided to commit suicide two days after being indicted by a federal grand jury. They were being prosecuted by an Assistant U.S. Attorney, Donald Schmid, who lived just three houses down from them. Their suicide note reiterating their innocence of the charges and explaining their decision to end their lives, as well as numerous letters from their attorney to the AUSA documenting their attorney’s efforts to demonstrate their innocence and prevent the indictment, all of which were mailed by the Gabrieles to a local television station, can be found here.
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Mr. K.,
Great peice. I have a delimma regarging “institutional momentum” & “prosecutorial misconduct” that I would appriciate your thoughts on.
In 84, my hired attorney (Daniel R. Jackson) & ADA (Casey J. O’Brien) played “let’s plea all over this one” during lunch recess on the first & only day of trial. Their fancy footwork (no contest) resulted in a grand prize of 10 yrs., out in 3 yrs. but actually sentenced for life.
In 98, my wife (paralegal) told me I could be anything I wanted despite the X on my back. After one year, I graduated with a shinny new “private investigator” diploma with instructions to locate a closed case to study. We chose mine, purchased the Houston PD Report, case file and mugshot. She read it and found that I was just sold proof of my innocence. We filed for a full pardon based in actual innocence.
Denied of course, & again in 04. The “I.M.” was not about to allow them to admit that the HPD, Harris County Sheriff’s Dept. & slime-ball O’Brien conspired to gain a convition via plea bargain, so I refused any further attempts. Instead, I chose to create PROJECT: Not Guilty and name names and let the “public @ large” in on it.
I confronted my attorney with the info. & he gave me a letter of reccomendation for a full pardon “based on facts in the case.” I confronted the ADA (O’Brien aka: jigmeister) on Simple Justice (Plea Bargaining 201) about his role in rail-roading me. He had nothing to say about; planting a .38 cal. revolver as a state’s exhibit that had no records of it’s chain of custody, the descriptions of the robbery suspects not even close & having 5 alibis witnesses to my exact whereabouts. He said he’s sorry that I felt that I was wronged by the system & claimed his memory had faded. I offered to forward him the documents and he ran away to another BLAWG.
With this all in mind, Would you consider my next move to fly the info. in a balloon over his house, unfurrel a banner in his neighborhood like the “Bong Hits for Jesus” kid did for attention, file for a pardon until I die or burn it all? Thanks for your humble thoughts in this matter for I respect your work and the professional way you go about it.
1Mr. K.,
2Great piece. I have a dilemma regarding “institutional momentum” & “prosecutorial misconduct” that I would appreciate your thoughts on.
In 84, my hired attorney (Daniel R. Jackson) & ADA (Casey J. O’Brien) played “let’s plea all over this one” during lunch recess on the first & only day of trial. Their fancy footwork (no contest) resulted in a grand prize of 10 yrs., out in 3 yrs. but actually sentenced for life.
In 98, my wife (paralegal) told me I could be anything I wanted despite the X on my back. After one year, I graduated with a shinny new “private investigator” diploma with instructions to locate a closed case to study. We chose mine; purchased the Houston PD Report, case file and mugshot. She read it and found that I was just sold proof of my innocence. We filed for a full pardon based in actual innocence.
Denied of course, & again in 04. The “I.M.” was not about to allow them to admit that the HPD, Harris County Sheriff’s Dept. & slime-ball O’Brien conspired to gain a conviction via plea bargain, so I refused any further attempts. Instead, I chose to create PROJECT: Not Guilty and name names and let the “public @ large” in on it.
I confronted my attorney with the info. & he gave me a letter of recommendation for a full pardon “based on facts in the case.” I confronted the ADA (O’Brien aka: jigmeister) on Simple Justice (Plea Bargaining 201) about his role in rail-roading me. He had nothing to say about; planting a .38 cal. revolver as a state’s exhibit that had no records of it’s chain of custody, the descriptions of the robbery suspects not even close & having 5 alibis witnesses to my exact whereabouts. He said he’s sorry that I felt that I was wronged by the system & claimed his memory had faded. I offered to forward him the documents and he ran away to another BLAWG.
With this all in mind, would you consider my next move to fly the info? In a balloon over his house, unfurrel a banner in his neighborhood like the “Bong Hits for Jesus” kid did for attention, file for a pardon until I die or burn it all? Thanks for your humble thoughts in this matter for I respect your work and the professional way you go about it.