Twenty-one years ago, the day O.J. Simpson was acquitted, I began my career as a federal prosecutor. I was 26—a young 26 at that—on the cusp of extraordinary power over the lives of my fellow citizens. After years of internships with federal and state prosecutors, I knew to expect camaraderie and sense of mission. I didn’t expect it to influence how I thought about constitutional rights. But it did.
Three types of culture—the culture of the prosecutor’s office, American popular culture, and the culture created by the modern legal norms of criminal justice—shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called “hard blows, not foul ones.” But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly—nobody had to.
When I left the U.S. Attorney’s office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I’m a defense-side true believer—the very sort of true believer that used to annoy me as a young prosecutor.
15 thoughts on “Confessions of an Ex-Prosecutor – Reason.com”
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Ken is a much needed counter to the endless political & media cheerleading of DAs.Report
Word.
Would we had more of him.Report
Yup, we were all getting tired of the hero worship of Marcla Clark and Chris Darden.Report
The irony with that case is that, had it been just some random black man, Clark & Darden would have been worshipped as heroes.Report
Sorry, not following. Do you mean that because a random black man wouldn’t have had a legal Dream Team, they would have gotten the conviction easily?Report
Pretty much. It would have just been a pair of noble, hard working prosecutors taking a homicidal black man off the streets. No one would have looked hard at the evidence, no one would have asked tough questions of the prosecution’s case, etc.
Hell, it probably would have never made it to trial, just settled with a plea deal after they indicted with every charge they could spin the thinnest justification for.Report
He murdered two people, which is already life (perhaps death for a multiple) so I don’t think padding the list of charges would have been useful in that case.Report
“It would have just been a pair of noble, hard working prosecutors taking a homicidal black man off the streets.”
I thought that’s what it was?Report
Except they didn’t.Report
If the defendant had been some random black man, it would have been just another day at the office for any of the hundreds of felony prosecutors in the Los Angeles County DA’s office.
And the Clark / Darden were outworked, outargued, and out-litigated by the defense team. They went the publicity route and got their asses kicked. Ask any public defender and they would tell you that it absolutely was a winnable case for the prosecution. The DA’s office has a small, virtually unknown and highly-respected prosecution team they use on death penalty cases. (Quickly, what’s the name of the prosecutor who just won the Grim Sleeper case?) For reasons that remain unclear to me, the DA selected Clark / Darden as the prosecutors, when they were simply not ready to handle a case that complicated.Report
@mike-schilling
Do you contest Oscar’s (and Ken White’s) larger point that our popular culture has sent and continues to send a lot of pro-prosecutor messages?Report
When I think of prosecutors who are considered heroes, the examples that stand out are people like Giuliani, who went after the Mafia, Curiel (the judge Trump went after), who went after the Mexican drug cartels, and Eliot Spitzer, who went after malefactors of great wealth. Typical ones, not so much.Report
What about the TV shows that White alludes to in his main article (Law & Order comes to mind)?Report
Your not thinking like an average person. Most people and nearly the entire media tend to see prosecutors as heroes putting away the baddies. Its why you rarely see defense counsel depicted well in most police procedurals if you see them at all. Defense counsel for profit are depicted more despicably than the ones that work for the public defender, who might get shown as good moral people.Report
Anyone remember that one TV show, maybe 15 years ago or so, based on the Innocence Project? I seem to remember some plots were based around various types of prosecutorial misconduct. If you don’t you can be forgiven since it only lasted one season, if that.Report