This is the right way to finish the year.
For those of you who do not know him, (and that means 99% of the robed readers who inhabit the REGJB and think nothing ever went on before they arrived in all their majesty) David Troyer was the Chief of Narcotics in the 1980's at the Dade SAO when Janet Reno was the boss. Talk about being in the right place at the right time.
David was a fierce advocate, and like all prosecutors reaching a position of responsibility under Reno, he took his obligations towards justice very very seriously. If there was a prosecutor who, by turning over some piece of discovery, knew s/he would likely lose the case because of the disclosure, David Troyer would be at the top of the list of ASAs who wouldn't blink in doing so. You can add Abe Laeser, John Hogan, Richard Shiffrin, David Gilbert, Bill Howell, Lenny Glick, Kevin DiGregory, Reid Ruben, Howard Rosen, Paul Mendelson, and a host of others who would do the same. (we know we have missed many many names from the old days- feel free to chime in). Being a prosecutor in Janet Reno's office meant "doing your level best" (a phrase she liked to use); "going where the evidence took you" (ditto); and scrupulously adhering to the highest level of ethics as a prosecutor.
Thus, we are not surprised to have received this comment from Mr. Troyer. He speaks from personal experience, and he is both right and wrong and we shall explain why. But first, let us say that it pleases us to no end when people like Mr. Troyer read the blog and comment. It is part of the reason we put pen to paper, so to speak.
David Troyer said...
I am so very disappointed in this post, Rumpole. Painting all prosecutors with the same brush, based on the actions of a few? Shame on you. Make no mistake, any prosecutor who lies to the Court does not deserve to be a prosecutor, and should not even be practicing law. Same goes for a police officer who lies in his/her testimony. In 40 years as a prosecutor, I have seen mistakes and bad judgment, but I have never seen a prosecutor lie to a judge. Those of us who started under Janet Reno were told by her that our first job was to protect the innocent, and our second obligation was to convict the guilty. This is a lesson I never forgot. And nothing is more important than an attorney's integrity. A reputation takes a lifetime to build, and can be ruined in a moment. I am sorry that some have become so jaundiced that they view this as a common occurrence among prosecutors. I dare say it is not.
Rumpole responds:
You are right about the ideals of prosecutors David, but sadly wrong with how that honourable profession is practiced today. We can recite a litany of cases where prosecutors have been caught doing just what the AUSAs did in the case we blogged about. The SDNY has had several recent and notable cases, all reported by the NY Times. In one case, exculpatory material was hidden, mid -trial, in a large discovery dump, and in the emails later reviewed by the judge, the placement was intentional. The NPR article is here.
And here is the NPR article on federal prosecutors hiding evidence in the prosecution of Alaskan Senator Ted Stevens. Their misconduct was so egregious that the conviction was reversed and the case dismissed.
The fact of the matter is you come from a time, an office, and a leader, who recognized the very special privilege it was to be a prosecutor. But have you been on the defense side recently? Speak to lawyers who handle post-conviction cases, and they will uniformly tell you that most prosecutors and judges, even when confronted with compelling evidence of innocence, will default to process and procedure over doing what's right. Janet Reno would have never stood for an innocent person being incarcerated, even where deadlines to challenge such convictions may have passed. She would have said "do the right thing".
What we differ on is not what is right, and not what should be done, and for that matter not what the prosecutors under Janet Reno did- but what occurs today. Very simply, it is much worse than you think. And as bad as it is with prosecutors, it is worse with police officers- which is what led us to warn judges in the post you write about, about justifying decisions by defaulting to the old trope "Police officers (and/or prosecutors) do not lie in court."
They have. And they will.
9 comments:
Police are the worst. Not because they are bad people, but because so many have a basic misunderstanding of the law and their role in a society of laws. My overwhelming experience is that police officers think and operate in terms of "good guys and bad guys." That way of thinking may be a necessary attitude for them to maintain their sanity in that very difficult job, so I don't wish to judge them too harshly. But that attitude is antithetical to the rule of law. When viewing the world through the "good guys and bad guys" lens, it's easy to tell a "white lie" on the stand, to fudge a police report, or to cover up a fellow officer's "mistake" in the interest of protecting the good guys from the bad guys. Every time, without fail, that I have engaged with a police officer in a chat about the problems with this mentality and its conflicts with the rule of law, I have been met with one of two responses: 1) a blank stare and complete failure to comprehend, or 2) some mix of contempt and sympathy for my "naive" mentality. Several have become downright furious when I have suggested that breaking the law (lying on the stand or in police reports, needlessly roughing people up, etc.) makes the cop who does so into a "bad guy." These individuals, who are probably a minority but a meaningful part of the force, are completely detached from notions of rule of law.
I have personally witnessed a prosecutor telling a bold-faced lie to a judge. I put that in the 2% club of prosecutors.
Except for former ASA Colleen Dunn in Key Largo, almost nobody does anything about it. She got fired and suspended for a long time and now has yet another complaint.
Broward ASA sent an email to the arresting officer that said...when the defense lawyer asks you this question, this is your answer..." we found out after the trial in a public records request. Complaint made, nothing done. Broward SAO did everything possible to fight the motion for a new trial.
Miami ASA told me and judge that a witness was available and he spoke with the witness.... yup, witness was dead. Complaint made, nothing done about it.
Miami ASA told a cop to change his testimony. Cop came to me (def atty) and told me. ASA County Chief Pat Trese had him fired that day. He was pressured by the cop who wanted to arrest the ASA for asking him to change his story.
Flip the coin, suspended defense lawyer Jonathan Schwartz lied to judges almost every time he opened his mouth. It took years for anyone to do anything about it.
I am sad to report that Rumpole is correct when he refers to the current crop of judges at REG. I need but one hand to identify the judges who have the testicular fortitude to declare a convicted murderer actually innocent when the evidence justifies it. And soon we'll have none. Milton Hirsch (in his last term), Ellen Venzer (in her last term), Miguel De la O (soon to be a federal judge), Nushin Sayfie (no longer in criminal) and William Thomas (no longer in criminal). The rest are afraid of the State, the cops, the media and the voters. I fear for justice in our hallowed halls.
Troyer's right. You are generalizing from anecdote. As with any other group, the vast majority of prosecutors and cops are good people. And, they serve the public good for a far lower salary than they deserve and can obtain in the private sector.
I understand the need to expose the corrupt, but how about highlighting the majority who do good? Trashing public servants as if they're all a bunch of evil bureaucrats who want to warehouse the innocent discourages people from joining and/or staying.
Really disappointing to see you doubling down on the hyperbole like this.
BTDT
Remember the "dropsy twins"? Every time a defendant saw them approaching he/she would suddenly "drop" the drugs so the twins could see it. A couple of lying cops that got away with it for years. Everyone in the building knew that Lange and his partner were not truthful under oath.
Hey 4:43pm. Don’t forget the honorable Judge Michael Hanzman. He overturned murder convictions in several cases and let innocent men go free from long prison sentences. You want brilliance and a hero to the Justice system? Ask him to return to the criminal division.
Harvey Rubin passed away. I just saw a post ans nothing here.
There is a federal judge, who, when [s]he has determined that law enforcement has obviously lied in a suppression hearing, says to the AUSA something along the lines of “you may want to go back to your office and discuss what you want to do with this case and let me know whether you want me to write an order.” [S]he started this practice after the judge had granted a suppression motion and explained that she found the cop not to be credible. On that occasion, the prosecutor submitted a filing requesting the judge withdraw her opinion and explaining that the judge’s order would handicap the officer’s career and that the prosecutor’s office wouldn’t be able to use him as a witness in the future.
@138 - that judge is too kind. A LEO who lies on the stand should have his/her career handicapped (ended, in fact) and is not a credible witness in future proceedings.
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