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They Know Not What They Do

Recently, a rather astounding ruling — astounding to those of us who practice criminal defense in the United States, anyway — came out of a courtroom in Santa Ana, California.

The Truly Honorable Cormac J. Carney of the United States District Court for the Central District of California, in a frank and blistering opinion, threw out charges against two defendants in the Broadcom stock options back-dating case. I read the opinion last night. Then I read it aloud to my wife. Then I read it again before going to bed. It is a succinct, scathing, amazing read and I strongly encourage you to read the whole thing yourself. (It’s less than 19 pages of double-spaced text, so it’s a quick read.)

Since being alerted to the opinion, a number of criminal defense attorneys and ordinary people (including at least one criminal law attorney from the other side of the pond, as they say) have engaged in discussion of the case.

The lawyer from across the pond wrote:

In the face of clear intimidation… Judge throws out the case. I take it this was a surprising outcome. Why?

The answer I gave — which was based on my experience in State court, but echoing comments made by the lawyers involved in the Ruehl case, as well as criminal defense attorneys from Fresno and elsewhere — had two components.

First, it’s unusual for a judge to be able to actually see the intimidation. It’s not that the intimidation isn’t there. And it’s not that it’s not obvious. It’s that they just don’t want to believe it.

To believe it happens as often as it does would be a major indictment of the system, as my friend across the pond stated after seeing my answer to his question. Judges and other ordinary Americans want to believe in the system. They want to believe that criminal defense attorneys who try to tell them what’s really happening are biased. If what criminal defense attorneys say is happening really is happening — and happening as often as criminal defense attorneys say it is — then the system is in serious trouble and in need of a major overhaul.

But that’s the critical second component: major overhaul will have to come at the hands of judges. And, make no mistake, that takes a great deal of courage. Courage such as was exhibited by Judge Carney.

As I type this, I’m sitting at a Barnes & Noble and don’t have access to my office computer to look up the quotes I’ve used in briefs where I’ve tried to encourage judges in this regard, but periodically appellate opinions (even in California!) have noted that until and unless there are serious sanctions for deliberate prosecutorial misconduct, deliberate prosecutorial misconduct will continue.

After all, the pay-off is significant. Obtaining a conviction while following the law is hard. It was intended to be hard. Our Founders knew that innocent people are too easily railroaded into prisons by governments with unbridled power. Governments, typically, have more resources than your average accused person. So, if you want to think of it this way, you could say that the Founders decided they were going to “level the playing field” by requiring the government to fight with one hand tied behind its back.

In reality, this metaphor is inaccurate. The truth of the matter is that all the law requires is the government prove its case beyond a reasonable doubt. If the evidence brought to the jury is insufficient to do that for whatever reason, the accused person should go free.

The reality, however, is that people hate to lose. We all hate to lose. Individual prosecutors, like anyone else, hate having to fight with one hand tied behind their backs. Besides, by the time a case is going to trial, the prosecutor “knows” that the accused person is guilty, even if the accused person is not guilty.

So when a prosecutor has decided to bring a case against someone — or as more often is the situation, is told to bring a case against someone — the tempation is strong to do anything possible to win. If you’re a prosecutor and you’re aware that there is evidence favorable to the accused person, you’re going to want to find a way to negate that evidence. This inclination is perfectly natural.

But as Judge Carney noted, quoting the United States Supreme Court,

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

(I have taken the quote directly from Berger v. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629, 79 L.Ed. 1314] so as to avoid minor transcription errors in the Carney transcript.)

In many cases, as in the Broadcom case, this does not happen. Something goes wrong. I don’t know exactly what the cause is, but prosecutors — and the number is higher than you or I want to believe — strike foul blows. They threaten witnesses.

Sometimes the threats are direct and quite tangible. Perhaps the witness has children. The prosecutor decides that anyone who would provide testimony or evidence favorable to an accused person must be a bad person themselves. So it’s no problem for them to point this out to the potential witness and include their opinion that bad people are not the best people to be raising children. Child Protective Services might need to be called. When I first started working in criminal defense, this was the most shocking thing I discovered.

But there are worse things. After all, if you’re willing to provide testimony or evidence favorable to an accused person, which makes you a bad person, too, then probably you shouldn’t be “out on the streets.” Maybe you should be charged with a crime and locked up, too. Now not only might CPS have your children, but you’re locked away where you can’t be with them. Even if family gets to keep your children, you aren’t going to be taking care of them.

And then there are the less tangible things. You’re going to testify for someone? Well, maybe your family should be dragged through the mud along with you and the accused person. Maybe your 13-year-old son will have to be subpoenaed, brought to court, and forced to testify. (He will, of course, be subject to the same pressures to which you and other witnesses are being subjected.) This was one of the threats to a witness in the Broadcom case.

Nothing traumatic about that.

This has a truly wonderful effect on the American “justice” system. Even when witnesses try to testify truthfully, the process rattles them. Their nervousness on the stand can easily be interpreted by juries as evidence that they are lying. Their testimony is less trustworthy. But it is fear of the prosecutor that causes this, not something else.

If you want to know just how Orwellian this can get, I’ve had prosecutors play on this fear — particularly in gang cases — by pointing out that the witness appears to be fearful. The prosecutor then asks, “Has anyone threatened you regarding your testimony?” Well, hell yes someone has threatened me! You did!

But, remember, no one wants to believe that. So it’s no strain for the prosecutor to point out that the nasty gang member on trial, or his friends, must have threatened the witnesses. Thus, if there was anything helpful in their testimony, the jury is wise to ignore it. It is, the prosecutor suggests, the product of intimidation of the witnesses…by the accused!

(Yes, this really happened in a home invasion robbery case I worked. I have heard of it happening in other cases, as well.)

These things are hard to believe. How could any prosecutor — those who fight to keep the rest of us safe by locking up only bad guys — do such things? This, after all, sounds evil. There’s no way you’re going to convince me that prosecutors are evil. Sure, maybe one or two bad apples exist now and then, but not as many as criminal defense attorneys want us to think!

But it doesn’t require evil people to do what are admittedly evil things. If only it were that easy. Then these things truly would be rare.

It’s not because they’re evil that prosecutors do these things. People have jobs to do. And if they don’t do their jobs, they lose them.

Once a prosecutor, or (as is more often the case) a superior in the prosecutor’s office, has decided a person is worthy of being charged, then, to them, that person is guilty. “After all, if we did not believe they were guilty, we would not have charged them.” All that is left is to make sure the jury does not disagree. Anyone who fails at this task too many times is looking for work elsewhere.

Is this not reasonable, after all? If you were a prosecutor, would you charge someone with committing crimes if you didn’t believe they had done so? Of course not! So if you had charged someone, or your supervisor had charged someone, or the person in your office responsible for filing charges had charged someone, then they must be guilty!

With these “guidelines” — reasonable assumptions all — in place, it is simply a matter of you doing your job. If, however, there is evidence tending to show someone is not guilty of the crime, you have to figure out how to deal with that.

I’m serious about this. I’m not making a joke. I’m deliberating trying to point out that it does not require evil intent on the part of the prosecutors to do whatever it takes to negate evidence favoring the accused. I know some prosecutors who are really perfectly nice people, but once they have a case, they simply cannot see things the way I see them. They’re just vigorously pressing their case.

If they did see things the way I see them — at least if they saw them that way too many times — they could not do their jobs.

Well, yeah, you’re thinking. But that’s different from actually doing bad things, like what happened in the Broadcom case.

Is it? Did you follow my suggestion above and read the transcript? Did you happen to make it to pages 17 and 18? Did you see these words from the prosecutors?

…[O]bviously we have heard your decision. Respectfully, we disagree with it. I don’t think that will come as a surprise to you. We have submitted our papers. We believe we have set forth our position in our papers and the other pleadings. And I don’t believe there is any point in saying anything further here. You understand our positions. I understand you disagree with them. I hope you understand we disagree with your ruling and we will need to decide what we do next.

Do you think that prosecutor believed that what he did was wrong? Do you believe he thought it was improper to threaten witnesses? Do you think he even recognized that what they had done was threaten witnesses?

This prosecutor is not abnormal. I don’t know him, but he might even be a nice guy. I have no doubt that he believes he is performing a duty, a public service, protecting all of us from people he believes are truly bad. Falsifying charges to coerce testimony? No way! The people he threatened really did those things, he would say. I’ve no doubt his papers did say that. Threatening another witness by offering to torture his 13-year-old son, traumatizing him by coercing his testimony against his father? No way! We have to get to the truth and this 13-year-old can shed light on what happened in the $2.2 billion dollar stock back-dating case at Broadcom!

This — yes, this — is the sort of thing that was meant when Jesus, hanging from the cross, reportedly said:

Father, forgive them; for they know not what they do. (Luke 23:34.)

Fortunately, this time, the judge did know what they’d done. Judge Carney had the courage not to look the other way. He had the courage to do what was right.

Would that the world had more such judges. Sadly, for us, many judges, like these prosecutors, “know not what they do.”

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