Tuesday, September 28, 2010

Commentary: We Have Always Done It That Way

Very early in my legal career, I hung around the Travis County courthouse, soaking in the wisdom of seasoned criminal defense attorneys. One such gent was Jack Darrouzet, who handled all kinds of traffic offenses. This was back in the days when Texans still labored under the doctrine of fundamental error in charging instruments. Jack became an expert in this area and applied it with rigor to each and every traffic crime, no matter how small. If you sat with him in the courthouse café, inevitably a big name attorney with a big time case would come by Jack’s table and seek his advice on some obscure point of indictment construction.

Jack also loved to hold forth on the banality of prosecutors. Jack knew Texas criminal law and procedure and all of the Supreme Court precedents, and he knew how to argue the law in front of a Texas judge. It really bugged Jack when he made a cogent legal argument against some county attorney’s action and received the following response: “But Your Honor, we’ve always done it that way.” More than anything else I witnessed during my brief sojourn at the courthouse, this drove Jack crazy. “We’ve always done it that way is not a legal argument,” he would remind anyone gathered around his table.

For some reason Jack’s lament has always stuck with me. You don’t see this kind of argument much in federal court anymore, as the government can usually come up with some god-awful precedent to justify even its most absurd actions. But you certainly see the same mindset when federal prosecutors use tactics that are lawful but unfair.

Think about arresting white collar defendants at home in front of their children or at work in front of their colleagues. Prosecutors have the absolute right to do it. But is it right or fair, when the same prosecutors will not oppose pretrial release? The defendant is presumed innocent and will be processed and freed within hours. Why should he or she suffer the humiliation and potential prejudice of a public arrest? And how about the closely connected practice of perp-walking, in which the arresting agent walks the alleged perpetrator to the federal courthouse, parading him or her before the waiting media hordes? Granted, this practice has decreased in recent years, but it still happens, as it did in the case of the late Ken Lay.

I have a feeling that several routine practices engaged in by prosecutors could stand re-examination. With respect to many of these practices, I’m sure that the AUSAs in question do not even stop to think about the fairness of what they are doing. This is not because they are bad people, or because they intentionally do bad things. (Indeed, they would be, and often are, shocked and offended when you suggest that they are not being fair.)  It is because they have always done it this way.




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This is exactly correct. In many white collar cases there is no need for this. Yet it goes on much to the humiliation of the person arrested. Unfortunately the government does have a right to do it and it is unlikely to change.

Posted by: tom gorman | Sep 28, 2010 2:19:35 PM

Does it absolutely have that right? I've always wondered whether defendants, who often know they're coming (and indeed often have several days to prepare their bond and for their self-surrender), could/should try to enjoin such prejudicial perp walks. You mention Ken Lay's, the photo-opts from which immediately became iconic. How harmful was that?

Posted by: Preston | Sep 29, 2010 6:29:42 AM

"Fair" is a word that is not in many prosecutors' dictionary. It is also a word that is often ignored by judges. Lawyer- "This is not fair, Your Honor!" Judge- "Do you have case law supporting that, Counselor."
A colleague (who later became a judge) used to say "Judge, this is just wrong!" At first, I thought it somewhat unlawyerlike, but I have grown to like it.
At argument, and sometimes in papers, I argue, "This is just wrong! It's wrong!" Some judges treat this like everything else, but occasionally a judge looks up and seems to focus on whether it is "wrong." Of course, you can't cry wolf much and you need some personal credibility to make the argument effective, but I have found it effective sometimes to tell the judge that it may be legally permissible but it's not fair, it's wrong.

Posted by: Lawrence Goldman | Sep 29, 2010 7:31:10 AM

As for arresting someone at their residence or place of work, I can say that sometimes it is a necessity. For example, if you know the person travels internationally quite often or has connections outside the United States, that may be a reason to deny them an offer for self-surrender. In my experience, an offer to self-surrender often turns on 2 things: (1) has the person been cooperating or debriefed by the government? (in which case the prosecutor will typically extend the courtesy) and (2) the relationship between the prosecutor and the defense lawyer (i.e., does the defense lawyer have a reputation as someone whose word you can trust).

Posted by: AR | Sep 29, 2010 8:30:53 AM

The irony is that the abhorrent practice is not arresting white collar defendants and treating them like every other defendant. Why should they get breaks? Are there any crimes that are as cold, calculated, and premeditated than the white collar thieves? Why is it okay to arrest the poor, Hispanic drug dealer but not the well off, college educated white thief? They are not a better class of criminals, just criminals.

Posted by: Guy Harvey | Sep 29, 2010 1:17:06 PM

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