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 so. Because 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.
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?