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.
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.