
Confessions of an Ex-Prosecutor	(2016) - Tomte
http://reason.com/archives/2016/06/23/confessions-of-an-ex-prosecutor
======
segmondy
One thing I would love to see taken off is plea deals. It's abused often,
"plead guilt and do 2 yrs take a chance that if you lose we will give you the
maximum 20 yrs" If someone deserves 20 yrs, then they don't deserve 2 yrs no
matter the cooperation. If someone deserves 2 yrs, they don't deserve 20 yrs.
Time served should be all about serious of crime and how long we think it
would take to rehabilitate the person. It's all fucking games.

~~~
csa
According to my defense attorney friend, a 2 plea and 20 trial offer means a
few things:

\- It’s considered a 2-year crime.

\- The 20 (that seemed high to him for a 2 year plea) is a fuck you for going
to trial when you are almost undoubtedly guilty. As someone else mentioned, it
seems to show a lack of remorse.

\- Note that both sentences will probably have time off for good behavior as
well as possible probation. This can make each of the sentences less daunting
(e.g., “2 years” might end up as 6 months served and 1.5 years probation).

\- Cooperating is a totally different issue. They use that to get a bigger
fish (usually).

~~~
gowld
> fuck you for going to trial when you are almost undoubtedly guilty.

Even if this concept is defensible (which is arguable), something like 1 year
extra is plenty of excess punishment compared to the cost of a trial.

~~~
csa
Maybe.

There are a lot of issues involved, and contrition (or lack thereof) is one of
them.

Most of the judges prefer pleas for obviously guilty people since they clog
the docket. Going to trial just because you can even though your case is a
slam dunk guilty verdict is an abuse of privelege, imho.

If a case is not a slam dunk, the judges often don’t give the max out of spite
— it all depends on the details of the case.

If you have some free time, go watch a few criminal court trials. Some of
these things will make of scratch your head and wonder why the person didn’t
plea (e.g., clear cctv footage of the crime being committed with multiple
eyewitnesses who corroborate).

~~~
jacquesm
How quickly you would change your tune when innocently imprisoned after being
falsely accused. 'Slam dunk guilty' indeed. Of course you'd go to trial. Or
would you? 2 or 20?

~~~
csa
If I did the crime, I would plea, and it's not even close (requisite hedge:
assuming that the plea offer is reasonable -- it might not be for a high
profile case that the DA wants to try for political points).

As I have said elsewhere, when the facts are not as clear, the plea offers
tend to contrast less starkly with a court sentence as well.

You seem to think that there are a lot of cases where the DA is just making up
charges against a totally innocent person. That just happens very rarely.
There are some weird domains like CPS/child abuse that have must-try cases for
political reasons, but the various actors all know what's going on there and
conduct themselves accordingly.

Look, IANAL. I am just telling you what my best friend has told me over the
past two decades. If you want to learn more about this, go talk to a defense
attorney and ask them their opinion on this matter. I think you will be
(pleasantly?) surprised at how reasonable the system usually is.

~~~
gknoy
His point was, what if you DID NOT do the crime?

If I were arrested and charged for a crime I did not do, having to choose
between 6 months guilty (_and a felon for life_), or the chance of zero-or-20
years would be Very Difficult. On the one hand, I don't have the money to pay
for a good attorney -- which means I'm more likely to lose, bankrupt my
family, screw any chance of retirement, etc. On the other hand, pleading
guilty to a crime which I know I am innocent of rankles me because of the
injustice, but it also is the (game theory wise one) choice that gets me back
to my family faster. (Of course then, being a felon, good luck getting a job,
so my chances of a good life later are also totally messed up.)

You're looking at this from the perspective of someone who is guilty, and
Might Get Away With it. Of course a plea makes sense there. Try looking at it
from the perspective of someone falsely accused, though, whose option is
either a public defender or being falsely convicted.

~~~
csa
Serious question, what crime do you think you could get accused of with "slam
dunk" level of evidence that you were actually innocent of?

It takes some serious mental gymnastics (e.g., your doppelganger commits a
crime right as you walk by) or you living in a massively corrupt area.

As far as money goes, you can get a publicly appointed attorney that the state
pays for if you cannot afford an attorney on your own. Some of these folks are
really good, some aren't. That said, if you're totally innocent, no lawyer who
has passed the bar should have any trouble getting the charges dropped. Again,
DAs don't just sit around trying to frame people for crimes they didn't commit
-- they have enough actual work to do.

~~~
CaptainZapp
" Again, DAs don't just sit around trying to frame people for crimes they
didn't commit"

Es a "for example" I suggest that you read about Mike Nifong's (DA on the Duke
LaCrosse rape case) actions and his despicable lying. [1]

This may seriously change your opinion on the subject.

DA's regularily lie and cheat for political gain.

[1]
[https://en.wikipedia.org/wiki/Duke_lacrosse_case](https://en.wikipedia.org/wiki/Duke_lacrosse_case)

~~~
csa
I’m very familiar with this case. Note that there obviously was not a slam
dunk level of evidence, the defendants were declared innocent, and the DA was
disbarred. Sounds like the system works to me (although with undue stress).

What percentage of cases do you think are like this? My guess is sub 0.01% —
it’s just not that common according to the defense attorneys I know. When it
does happen, bar complaints fly. My friend tells me that there definitely are
wrongful convictions, but it is often not that the person was innocent of a
crime, but that they were convicted of the wrong charge. As far as I am
concerned, these types of cases seem to be very much the exception rather than
the rule — no system is perfect, and I am fully aware of that.

I have said elsewhere that a corrupt district or DA is a caveat to my stance.
Ditto with high profile “must try” cases (I was a juror in one of those). That
was a district with a corrupt DA — it happens. The cool thing to me is that
the dude was disbarred — the system worked.

I will also add that I think universities interpret rules far too generously
(more like guilty until proven innocent), and I don’t agree with that at all,
but that does not always become a legal matter. When it does, it is often a
must-case for political reasons, and plea deals getnwokky then. I’ve said all
of this elsewhere.

------
firasd
Something that makes me uncomfortable which is not directly touched upon on
this article: in America, being a prosecutor is often a stepping stone to
being a politician. Which (among other career imperatives) is an incentive to
be a 'showboat' and win notable convictions.

The desire to convict also leads to some decisions that seem very wrong-headed
from a common-sense perspective, like prosecuting young people for child porn
for taking pictures of themselves, or imprisoning victims of domestic violence
for not giving testimony...

~~~
Simon_says
Are you talking about in the US? I thought we had an amendment that said that
while we might be compelled to show up as a witness at court, we can't be
compelled to testify if we think it might implicate ourselves?

~~~
code_duck
A victim of domestic violence would be fearing retaliation, not self
incrimination.

~~~
squirrelicus
All people should fear self incrimination. Prosecutors don't know you, your
history, or care. If they suspect they can get a conviction from anyone, they
will try, regardless of their role in unrelated cases. One normal healthy
human accidental inconsistency in your story can ruin you forever. Accidental
self incrimination of the innocent is not to be taken lightly. Always have a
lawyer present when talking to a prosecutor.

~~~
gowld
That's easily standardly solved by immunity grants.

~~~
squirrelicus
Indeed. In the case of an immunity grant, a judge will compel you to testify
or throw you in jail for contempt of court iirc (ianal). But these are all
things your lawyer, which you should already have long before you get an
immunity grant, will tell you

------
rntz
Why is it that the legal profession is split between prosecutors and defense
lawyers? I ask this question in two senses: first, historical - how did it
come about? and second, moral - what is the justification? After all, doesn't
this division promote exactly the kind of tribalism based on prejudice (an
assumption of the guilt or innocence of the defendant) we wouldn't want in a
legal system - the kind of tribalism this article points out when it talks of
"the brotherhood of prosecutors"? Why don't we require those who prosecute to
also sometimes defend; those who defend, also to prosecute?

~~~
cortesoft
It is all part of what is known as the 'Adversarial System' that we use for
our legal system. There are lots of arguments for why it is used, and in fact,
one of the main purposes is to mitigate that kind of 'tribalism' you describe.
The alternative system is known as an 'inquisitorial system', and puts the
state in charge of everything. By explicitly acknowledging that the defense
and prosecution are working against each other, you can help make sure that
the motivations are clear and not misleading.

[https://en.wikipedia.org/wiki/Adversarial_system](https://en.wikipedia.org/wiki/Adversarial_system)

~~~
alain94040
Adversarial is good. What the OP may be suggesting is: take a pool of lawyers,
and have them be either prosecutors or defense lawyers, on any given day.

It has some practical issues (defense lawyers are not paid by the state,
prosecutors are).

~~~
curun1r
It's funny that this suggestion seems so radical considering that a somewhat
related discipline, debate, requires participants to argue both pro and con
throughout the course of a competition. I remember realizing that by arguing
both sides of an argument, it was forcing me to concentrate on the mechanics
of argument rather than the actual topic. It didn't matter which side of the
argument was better, only which side was argued better.

Similarly, I'd expect lawyers who were forced to alternate between prosecuting
and defending to concentrate more on the mechanics of the process and less on
the result.

~~~
pseudalopex
Competitive debate is a performance for a self-selected audience. Voters and
especially defendants are more interested in the results than the mechanics.

------
paultopia
Highly recommended: the scholarship of Georgetown Law professor Paul Butler.
He's an African-American former prosecutor who writes about the criminal
justice system from that perspective---as someone who has been on the
prosecutorial side and now rejects the whole thing on the basis of its racial
injustice. Really incredible work.

~~~
gowld
Also (defense attorney) Bryan Stevenson's _Just Mercy_ and (ACLU / academic)
Michelle Alexandar's _New Jim Crow_

[http://newjimcrow.com/](http://newjimcrow.com/)

[http://bryanstevenson.com/the-book/](http://bryanstevenson.com/the-book/)

------
DannyBee
This is Ken White, who runs popehat.com, which is a great read about legal
stuff, if you haven't seen it.

~~~
jonhendry18
He's also an entertaining follow on Twitter.

------
nobody271
Prosecutors: "Eh, I'm sure he's guilty of something."

------
downandout
_”I market myself to potential clients as a "former federal prosecutor....it
makes potential clients charged with crimes trust me more”_

I dont know if that is the case for everyone. Make no mistake about it:
prosecutors destroy lives, families, and careers for a living, and the vast
majority of those on the receiving end have not committed conduct worthy of
such destruction. They know this, and they still do it anyway. For some it’s
just a paycheck, and others just enjoy making people suffer. But regardless of
why they do it, I certainly wouldn’t knowingly allow someone that can sleep at
night after throwing thousands of people to the wolves to be in the same room
with me, let alone trust them with my criminal defense (or anything else for
that matter).

------
JudasGoat
I think someone should note that in most cases it wouldn't be possible for
pressure of this magnitude to settle as a plea without the Police over
charging in the beginning. Yes, as a felon I have personal experience.

------
ilovetux
This might not be a popular opinion, but I feel that plea bargains are the
result of an overextended legal system. The war on drugs has overburdened our
courts with cases which should not exist in the first place. Imagine how many
less cases there would be if there were none involving possession or sale of
narcotics. Sure, there would be tangential crimes like an addict resorting to
theft but those exist now and I doubt the number would increase significantly.

------
mhneu
Probably many people know this, but since it's important to know the owners of
our media and information sources:

 _Reason_ is published by the Reason Foundation which is funded by several
right-wing donors, including the Koch Family Foundations. The Reason
Foundation is a member of the State Policy Network whose goal (as measured by
their past history) is to advance the interests of right-wing wealthy donors.
And leaders at the Reason Foundation have strong ties to ALEC, an organization
that coordinates and advances bills across states that benefit right-wing
wealthy donors.
[https://www.sourcewatch.org/index.php/Reason_Foundation](https://www.sourcewatch.org/index.php/Reason_Foundation)

So keep Reason's editorial bent in mind when you read its articles. Some are
good, but Reason leadership has an agenda.

~~~
azernik
In this case, the view is traditionally _left_ -wing; Reason is an explicitly
_libertarian_ publication ("Free Minds And Free Markets").

~~~
icebraining
What do you see as left-wing? US-style libertarians are usually considered
right-wing, since (unlike libertarians/anarchists of other persuasions) they
tend to put a tremendous value on strong private property rights.

~~~
mindcrime
First of all, the whole "left wing / right wing" spectrum is an outdated,
archaic legacy of a bygone age, and has no place in modern society at all.

That said, to the extent that you can squint real hard and find some meaning
in the idea of "right wing" or "left wing", American libertarians are
typically described as "simultaneously left of left, and right of right".

Ultimately that just goes to illustrate exactly the point that a simple one
dimensional spectrum cannot even begin to model the diversity of political
beliefs in the world.

~~~
dragonwriter
> First of all, the whole "left wing / right wing" spectrum is an outdated,
> archaic legacy of a bygone time and has no place in modern society at all.

Not really. It doesn't tell the whole story, but it reflects a real and
current axis of variation.

> That said, to the extent that you can squint real hard and find some meaning
> in the idea of "right wing" or "left wing", American libertarians are
> typically described as "simultaneously left of left, and right of right".

American “libertarians” (that is, people referred to that way in America) are
typically right-libertarians. To the extent they sometimes seem left, it's
because some of the popular perception of the right is set by right
authoritarians.

~~~
mindcrime
_It doesn 't tell the whole story, but it reflects a real and current axis of
variation._

Actually it conflates and muddles several different axes of variation, leaving
a situation where almost nobody is actually correctly described by the term
"left wing" or "right wing".

 _American “libertarians” (that is, people referred to that way in America)
are typically right-libertarians._

That is a myth which has no basis in reality. Libertarians in America adopt
huge swathe of positions which are more typically associated with the "left
wing" label: drug decriminalization, opposition to the death penalty,
religious freedom, etc. The fact that they tend to take those same issues even
_further_ than others is how you wind up with the "left of left, and right of
right" label:

Typical American "left wing" position: decriminalize weed

Typical American libertarian position: eliminate all drug laws, what you put
in your body is no business of the State.

So, "left of left".

Typical American "right wing" position: "lower taxes"

Typical American libertarian position: "taxation is theft, end all taxes".

So, right of right.

You really can't model things in a sufficiently rich way to describe
Libertarianism on a one-dimensional spectrum like the left/right scale. It
just doesn't work.

~~~
dragonwriter
> That is a myth which has no basis in reality.

No, it's really not.

> Libertarians in America adopt huge swathe of positions which are more
> typically associated with the "left wing" label

Libertarians in America are more likely to agree with the left on issues where
the left believes the government should be inactive, sure, but they tend to
agree with the right on what the important functions of government are.

> Typical American "left wing" position: decriminalize weed

That's just the typical _American_ opinion, now. But, sure, most on the left
would go _at least_ that far.

> Typical American libertarian position: eliminate all drug laws

Not really; the scattered polling I've seen over the years have shown self-
described libertarians as only slight more supportive of legalization of any
drugs (even just marijuana) as the US public as a whole, much less the left.

Similarly on your other points.

> You really can't model things in a sufficiently rich way to describe
> Libertarianism on a one-dimensional spectrum like the left/right scale.

Libertarianism is at least another axis, sure, and even that is more about
broad categorization. And it may not even be the second most significant axis
in US politics; there's a race policy axis that has historically been
stronger.

~~~
jessaustin
They call themselves libertarian, and they don't want to end drug prohibition?
They're fooling themselves more than they're fooling us. That's table stakes.

~~~
dragonwriter
Textbook No True Scotsman.

~~~
crunchatized
I'd have to see this scattered polling, but this really seems like a claim
somewhere between "Catholics who say they don't believe in
transubstantiation," and "self-identified Scots not from Scotland,"
considering.

[https://www.lp.org/issues/war-on-drugs/](https://www.lp.org/issues/war-on-
drugs/)

------
0xdeadbeefbabe
In summary, youth is a problem.

~~~
TimTheTinker
> youth is a problem

Youth is a vast treasure and a glorious opportunity. Unfortunately, it's
disproportionately vested on individuals who lack the wisdom and experience
that comes with age.

~~~
eric_the_read
“Youth is the most beautiful thing in this world—and what a pity that it has
to be wasted on children!” - G. B. Shaw[0]

[0]
[https://quoteinvestigator.com/2015/09/07/young/](https://quoteinvestigator.com/2015/09/07/young/)

~~~
quickthrower2
Conversely... wisdom is wasted on old people.

~~~
TimTheTinker
That doesn’t follow.

~~~
quickthrower2
Correct - it doesn't follow, it is a different assertion.

