The petulance of power


Let’s lay it out there: who here doesn’t believe that anyone arrested for a crime is automatically guilty of it? Who here doesn’t believe that there is a very good reason someone’s been arrested: they must’ve done something. Who here doesn’t believe that the system is a necessary inconvenience; a rigmarole we must go through before we arrive at the “truth” that everyone’s known about since the time of arrest.

The legal system – and the criminal justice system in particular – is increasingly viewed as an annoying detour on what should be a very short road from arrest to incarceration. If an arrestee is later found guilty by a jury, well then, I told you so. If an arrestee turns into an acquittee, it doesn’t mean he didn’t do it, just that the State couldn’t prove it. What has come before me, I do not know1.

And while it may be excusable for the masses to believe that the system is a technicality, it is exceptionally shameful for those educated in the law and charged with its conveyance to similarly believe so.

While this desire to dispense with the due process of law because we know better is foul when it emanates from law professors2, it is particularly odious when it extrudes from the pores of our own Champions of Justice: a terrible habit that seems to routinely recur.

Prosecutors can’t seem to keep their hands out of the misconduct jar. And when they engage in this misconduct, they do it over and over again, and indignantly soBecause they know better. Because they know how the system really works and how defense attorneys and the “constitution” are just impediments and tricks that prevent them from doing real justice: putting people who they’ve decided are rapists and murderers behind bars.

They have the power to decide who is a criminal and who is not and by God they’ve decided that long before they start to pick a jury.

Take Sharmese Hodge. A prosecutor in Danbury, Connecticut, who prosecuted a man named Michael Maguire. Hodge alleged that Maguire had sexually assaulted an eight-year old. In fact Hodge was so sure Maguire was guilty of this hyenous3 crime that she said the following4 [PDF] to the jury:

Defense counsel concluded his argument by stating: “I don’t ask you for pity. I don’t ask you for mercy. I ask you for justice. I ask you to set [the defendant] free.”

The prosecutor began her rebuttal closing argument as follows: “Ladies and gentlemen, that’s not what he’s asking you for. What he’s asking you for is to condone child abuse. What he’s asking you for is to allow a world in which a forty-one year old man sticks his hand down the front of an eight year old’s pants, claims to tickle her . . . [t]akes his hand out, smells it while his erect penis is sticking out of his pants, and, because he did that to an eight year old child, because he did it in a room where no one else was present, because he did in it in a house where mom and dad were separated and there was a woman staying the night . . . you can’t find him guilty. That’s what defense [counsel and the defendant want] you to believe. That’s what they want you to do. They want you to condone child abuse in this courtroom. They don’t want you to look at that little girl that sat on the stand and testified before you . . . . They don’t want you to look at her testimony. . . . They want you to say, hey, guess what? Because she’s eight [years old] and it was just her [testimony alone, you should find the defendant not guilty].”

After asserting that defense counsel had “lied to [the victim]” when he told her that his questions were not intended to trick her, the prosecutor returned to her earlier theme, stating: “So when [defense counsel] sits here and says to you today, we’re not here to condone child abuse or we’re not trying to beat up . . . on the [victim], listen to that. . . . Is he telling you the truth . . . when he says that?”

Finally, the prosecutor made the following argument with respect to the defendant’s own testimony: “I would assume what you wanted to hear was the truth, not a bunch of excuses, not . . . a big cloud of smoke and mirrors . . . . You wanted to hear the truth. That’s not what you heard. You heard a . . . coached conversation between a defense attorney and his client.” The prosecutor further argued: “[I]t’s not a secret that child abuse is a crime. But what counsel’s asking you to do is to say that . . . child abuse that happens in secret is legal, and that is not the law. I ask you to find the defendant guilty . . . .”

In addition, during the trial, Hodge and the defense attorney Norm Pattis had agreed that the interview of the complainant should be edited to remove portions that did not deal with the current allegations5. Pattis asked the interviewer if he had asked the complainant about inconsistencies in the story (he had not). Hodge then argued in front of the jury that the interviewer indeed had asked about those inconsistencies, but it was in the redacted portion of the interview that the jury was not allowed to see.

Which is not a misrepresentation but a blatant lie.

Why, if you must ask yourself, would a prosecutor argue to a jury that the defendant is asking them to condone child abuse? Why would the prosecutor make an argument so beyond the pale?

Because she believes it. Because she believes it and also believes that juries aren’t to be trusted. Because she knows that her best bet at “winning” is getting people angry. Because emotion is the surest way to a conviction. Because she has decided that Maguire has done wrong and she’ll be damned if she lets due process get in the way of a conviction.

Fortunately, this time our supreme court intervened6:

We agree with the defendant that the prosecutor’s repeated assertions, during her rebuttal closing argument, that the defendant and defense counsel were asking the jury to “condone child abuse” and to find “that . . . child abuse that happens in secret is legal,” and, further, that defense counsel was lying when he stated otherwise, were highly improper and intended not only to appeal to the jurors’ emotions but also to demean the defendant and defense counsel in the eyes of the jurors. In characterizing the defense theory of the case as she did, the prosecutor sought to demonstrate, unfairly, and without a factual basis, that the defense was illegitimate and wholly unworthy of consideration, for no juror reasonably could be expected to credit a defense predicated on condonation or approval of child sexual abuse.

While Mr. Maguire gets a new trial7. it seems that there are no consequences for Ms. Hodge, who appears free to repeat her questionable behavior.

This prosecutorial hubris is not an isolated incident. Defendants and defense counsel are not immune to the petulance of prosecutors. As a jurist, if you stray too far outside the line, you may find yourself banished to traffic court – a tactic seemingly only employed by prosecutors in San Diego8 – or the subject of a 2-year long inquiry into your impartiality. All because you rule in favor of defendants. Another way of saying that is ‘you rule in favor of individual rights and the rule of law.’ But no one says that. You’re partial and need to be banished if you rule for defendants and prosecutors will spend countless hours writing 70-page complaints against you9.

If none of this bothers you, ask yourself why. Even if you are that convinced of the infallibility of individuals who are given this extreme power, doesn’t their petulance and arrogance at being questioned give you pause?


  1. So I am unable to intelligently say if this is a new phenomenon, fueled by the endless episodes of the endless versions of Law and Order and other such procedurals or if this is how it has always been. After all, the Cocktail Party Question has harangued defense attorneys for, it seems, forever.
  2. Or other legal professionals.
  3. Don’t email me to tell me it’s spelled incorrectly. I know. Think ‘My Cousin Vinny’.
  4. Previous post on this case here.
  5. Standard practice.
  6. Though that is not always the case.
  7. The jury did acquit him of all of the serious charges except one.
  8. What is up with San Diego?
  9. But probe prosecutors? Oh no! You hate justice. And children.

9 thoughts on “The petulance of power

  1. that anonymous coward

    I wonder how much of this is fueled by the gameifaction of the process.

    Look for the easy win, if you can spin good press coverage do it.
    If the case isn’t headline grabbing or might be hard to prove… settle or don’t bring it forward.
    Hard cases against powerful opponents rarely move forward, because they might not win.

    One can find a series of cases where defendants didn’t have a fair day in court, some end up cleared of the original charges… and you have the prosecutor claiming how its a miscarriage of justice.
    Not mentioning that it was found they hid evidence that damaged the narrative they spun.
    Not mentioning the misconduct of the government.
    Threats to retry the case, to make the innocent accept a “deal” that merely protects the office not the interests of justice.

    The public doesn’t help matters much, as they just want the “bad people” stopped at any cost. Not understanding that they could be called “bad people” next and find themselves the victim of the protections they cheered being removed/ignored so they could get the last “bad people”.

    1. Gideon Post author

      At first I thought you said “gentrification”, which might also work…

      It absolutely is driven by a shift from “justice” toward “winning” .When it becomes a game, the objective is for your side to win, whether it’s the right outcome or not. It’s a competition, with prosecutors boasting they’ve never lost a case.

      1. that anonymous coward

        The game makes me ill. I admit I sometimes have to catch myself from rooting before all of the facts are known, it is hard not to with all of the spin in the air.
        But then there are the facts no one likes to report…
        A certain sheriff has been ignoring serious crimes while pursuing his media campagin of being tough on crime.
        A certain city regulating soft drinks while ignoring the abuses of its personal army.
        A certain bank who should have faced charges, now employees the lawyer who felt there wasn’t enough evidence to make a case.
        A certain lawyer who started an international incident that appears to be for the benefit of his former and soon to be again employer.

        Read any public commentary of the “case” against Kim Dotcom you will find the following justifications repeated…
        – He’s fat.
        – He did this bad thing that one time.
        – He has to be guilty.
        – He is an ahole who deserved it.
        Very few people want to discuss the concept of due process, the laws violated by the agents of the government bringing the charges, the charges serious lack of common sense. (A corporation paying a bill to an outside vendor is not money laundering.)

        But because people believe the hype, they ignore the railroading. They miss that if we accept them cutting corners in this case, it can and will someday hit them.

        But then I’m just someone who defames lawyers, who is supposed to be a lawyer in disguise, and just want to terrorize people into destroying copyright.
        Maybe I’m just the poster child for don’t believe the hype.

  2. shoirca

    I once won a motion do dismiss where the ADA argued that my client was guilty of passing a counterfeit $100.

    The ADA argued that my client knowingly intended to pass the counterfeit bill, that the cashier (who was unavailable to testify) could tell my guy knew the bill was bogus by the way he held it.

    The judge jokingly observed that the cashier could tell the bill was fake by looking at the defendant’s face (client was black in a predominately white neighborhood). Case dismissed with prejudice.

  3. Scuzza Man (@ScuzzaMan)

    I’ve served on several juries. In every case I had to argue loud and long – and especially with the foreman of the jury, who always seems to be an authoritarian prat – that assertions by the prosecution are not evidence, let alone proof, and that the law requires they prove their assertions, not merely repeat them.

    I would not be confident in a jury of my peers, such is the parlous state of understanding of our civic duties to each other amongst the general public today.

    1. Gideon Post author

      That’s extremely disheartening. Thanks for doing the right thing, but I fear that the tide has long since turned and we are continually swimming against it. I wouldn’t trust a jury, but I’d trust a judge less.

  4. rob

    and if someone has in fact committed a horrible crime, and should be in prison to prevent them doing it again, do you not defend them? Defense attorneys are just as guilty of placing “winning” above justice, probably more so.

  5. Pingback: Virginia prosecutors will do just about anything to execute Justin Wolfe (updated) | a public defender

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