HAD YOU CHECKED THE WEBSITE OF THE TULARE COUNTY, CALIFORNIA, DIStrict Attorney’s Office in November 2012, you’d have seen a studio portrait of a smiling, middle-aged, balding man with a closely trimmed white beard. He wore a dark suit and appropriately somber tie. A U.S. flag dangled on a pole behind his right shoulder. The man was District Attorney Phillip Cline, a member in good standing of both the local Rotary Club and Chamber of Commerce. (Cline announced his retirement in October 2012, effective in December, approximately two years before the end of his term.) Before becoming district attorney, the site would have told you, Cline “specialized in the prosecution of homicide cases and won a number of high-profile death penalty cases.” His office’s mission was “to represent the people of the State of California in an efficient, effective and ethical manner.”1
Nowhere did the site mention that five years earlier, in 2007, a state appellate court determined that as a deputy prosecutor two decades earlier, Cline had withheld a vital audiotaped statement from a key witness that pointed to a murder defendant’s innocence. But the discovery was made too late. By that time defendant Mark Sodersten had died in prison, having served twenty-two years for a crime he almost certainly didn’t commit. Sodersten’s death turned the smothered evidence into what the law calls a moot point. However, the appellate court was so upset by the finding that it made the ruling anyway—a highly unusual decision that at least put Cline’s deeds on the record.2 Cline had sought the death penalty for Sodersten.
As it turned out, Cline’s luck held. The criminal justice system took no action against him, and the state bar association never expressed so much as mild disapproval. Thanks to Supreme Court decisions that protect prosecutors (but not police), he was immune from civil liability, accorded a legal status that mimics that of medieval monarchs who ruled their kingdoms and principalities by divine right.
The Northern California Innocence Project (NCIP), a legal group dedicated to exonerating wrongfully convicted individuals, is affiliated with the Santa Clara University School of Law. In a study of court records from 1997 to 2009, it reported that in 707 Northern California cases, courts found that prosecutors had committed misconduct. Three percent of these 707 cases went to trial, but in only six was anyone disciplined.3 There’s no reason to believe this phenomenon is peculiar to Northern California. A New York Innocence Project study found that the many cases reversed by Innocence Project offices around the country “exposed official misconduct at every level and stage of a criminal investigation.”4 Common forms of misconduct discovered include employing suggestion when conducting identification procedures; coercing false confessions; failing to turn over exculpatory evidence (although in some cases police fail to turn the evidence over to prosecutors); deliberately mishandling, mistreating, or destroying evidence; allowing witnesses to testify when authorities know or should know they aren’t being truthful; pressuring defense witnesses not to testify; relying on fraudulent forensic experts; and making misleading arguments that overstate the conclusiveness of testimony.
In the landmark case of Brady v. Maryland, the Supreme Court ruled in 1963 that prosecutors have a duty to share evidence that indicates a defendant is not guilty.5 But in case after case, prosecutors treat this decision as though it never happened. Even when a prosecutor is caught withholding evidence, nothing much happens. It’s a phenomenon that appears to have much in common with on-ice fights in the National Hockey League. If the league really wanted to end them, it clearly could do so.
The Northern California study, conducted by Kathleen Ridolfi, NCIP’s executive director, and Maurice Possley, a Pulitzer Prize–winning journalist, examined only those 3 percent of cases that went to trial. The 97 percent of cases resolved without trial nearly all ended in a guilty plea.6 These cases were no less likely to involve misconduct, but whatever transpired may as well have been on the dark side of the moon. The public sphere saw only the judge banging a gavel to pronounce the negotiated outcome.
In other developed democracies, judges and prosecutors are usually appointed civil servants. But in the United States, state prosecutors are mostly elected. And although federal prosecutors are appointed, they are more likely than their European counterparts to be angling for future political office—and are therefore more inclined to seek a spotlight. Some experts believe that this politicizing of prosecutorial duties has much to do with America’s incarceration syndrome.7 Playing the role of a crusading prosecutor is a traditional political path. Campaigns for prosecutorial office can devolve into a duel decided by which candidate best exploits the voters’ fear of victimization.
Cline, after winning a conviction in the Sodersten case, moved up to the elective office of district attorney in 1992 and kept that office for twenty years. He served in California’s mostly bleak Central Valley, where the principal industry is agriculture, primarily dairy, grapes, and citrus. Although Hispanics are in the majority in Tulare County, their voter turnout is low. Hard-core conservative Republicans rule, although criminal justice isn’t strictly a liberal-conservative issue.
Savvy defense attorney Kevin Donahue, who’s practiced almost thirty years in the Democratic stronghold of Los Angeles County, is still puzzled from time to time by the implacable attitudes of prosecutors he faces, and he’s not afraid to say so. I asked him to name an instance that particularly bothered him, and he immediately chose the case of a young man who was unquestionably guilty as charged:
I had this client who was twenty-five years old. He had two years of college. He was a good kid, and he had a clean record. But one night he got drunk and somewhere he got a gun, and he was out there and he was with these people and he was just wobbling drunk, and they were having a good time. They were all friendly. He had his arms around their necks, and at some point he said, “Give me your wallet.” And he took their jewelry too.8
His offense, Donahue readily concedes, was inexcusable and deserved conviction and punishment. But in California, the minimum for robbery at gunpoint is twelve years. With good behavior, a convict can get 15 percent lopped off the sentence, meaning his client would have to do a minimum of ten years, two months, a far lengthier term, Donahue believed, than was merited. His client needed a lesson, not obliteration. But he was up against another one of those statutes that can often be counterproductive, taking the clay of human beings who still have potential and molding them into broken or bitter ex-convicts whose survival skills aren’t taught in any scouting manuals. Donahue, wishing he could do more for the young man, knew the facts of the robbery were clear and made peace with the situation. But when he spoke to the prosecutor, he came away astonished. “She was set on giving him twenty-six years,” he recalled. He paused. “Twenty-six years. He’d never been in trouble before, and he didn’t hurt anybody. He was just a kid. And twelve years wasn’t enough?”
The assistant district attorney was adamant, but Donahue, who knows all the essential names and numbers in the Los Angeles criminal courts, managed to get his client before a judge he thought might show leniency in such a case, someone who would think twice before throwing a life away. Meanwhile the assistant district attorney continued to amaze him: “She told me, ‘If he doesn’t get at least 22 years I’ll never take a case before this judge again.’”
Finally, Donahue negotiated a deal for sixteen years with possibility for parole only after the defendant served 13 years, 6 months. Given the facts of the case, he was convinced that going to trial would have dug a deeper pit for his guilty client. Only after he banged the gavel on the sixteen years did the judge notice that no one had mentioned the other charges. There were several other charges against Donahue’s client relating to the one incident, which is typical.
“What you do in these cases,” Donahue explained, “is you plead guilty to one charge and drop the others. That’s the way it works. But the assistant [district attorney] told the judge, “We’re going to trial on the other charges.” She was trying to pile on more years. The judge looked at her and said, “I want you to go back to your supervisor and explain what’s going on here, that you made an agreement and this is what you’re doing about it.” Finally they dropped the other charges, and I was supposed to feel like I got a victory because my client got only sixteen years.
Are exceedingly stiff mandatory sentences ever a deterrent to potential lawbreakers? Probably. But the more pertinent questions are, Are they necessary? Are they fair and reasonable? Patrick Russell, a world-renowned boxing referee and retired detective who spent many years as an investigator in the San Diego District Attorney’s Office, points out that after carjackings began to surge, Congress passed a new federal statute that made them a federal crime punishable by ten years. “Word got out on the street that what looks like an easy crime isn’t so easy after all,” Russell recalled. “Just like that, carjacking pretty much disappeared.”9
The trouble is people like Donahue’s client don’t hear about these changes. Because they’re not hard-core criminals, they’re out of the loop. They get the scoop only after it’s too late. And the judges, no matter who’s in front of them, no matter what the extenuating circumstances, must pronounce at least the minimum statutory sentence. In practice, that means judges no longer have the right to exercise discretion, and that right has been handed to prosecutors who decide whether to file charges and, if they file, the specific nature of those charges. If someone’s been killed, for example, the prosecutors might press for first-degree murder, involuntary manslaughter, or any charge in between. They typically seek whatever they think they can get away with in the giant bazaar that operates outside the courtroom. The two sides play a game of chicken, with lawyers testing one another for weakness.
Defendants represented by public defenders or court-appointed attorneys, although they may win the lawyer lottery and end up with a spirited, able defender, are often assigned lawyers who are basically overwhelmed. If you can’t afford to hire your own attorney, contends Sergio Ayala, who is doing twenty-five to life in California, “the public defender will only lead you to the slaughterhouse.”10
Louisville attorney Nathan Miller recalls that when he worked in the public defender’s office in southeastern Kentucky, he would routinely carry an impossible caseload of thirty-five to forty felony cases:
At one point I also was responsible for five hundred misdemeanors. People would leave the office and they were supposed to hire new people to take their places, but often there were no replacements. The cases would just be turned over to the people already there. The caseload was such that I couldn’t give attention to cases that they deserved. The first time I would see my clients was the day they would walk into court to plead guilty. I wanted them to understand they didn’t have to take the deal. But a lot of public defenders are not like that. There’s just a lot of pressure to move cases. It’s just the same song and dance every day. It’s heartbreaking, frustrating, and the pay is not very good.
Often, Miller said, cases cried out for the defense attorney to file a written motion of some kind, but there just wouldn’t be time.11
The Sentencing Reform Act, part of the Comprehensive Crime Control Act of 1984, was a federal statute that was supposed to increase consistency in federal sentencing.12 The act abolished federal parole and established the U.S. Sentencing Commission, an independent panel within the judicial branch. Panel members are appointed by the president and confirmed by the Senate. They serve six-year terms.
The new federal sentencing guidelines went into effect in November 1987. They weren’t really guidelines anymore but rather mandatory decrees requiring longer minimum sentences, even for first-time offenders. District Court Judge J. Lawrence Irving of San Diego, a conservative who’d been appointed by President Reagan, ruled the new guidelines unconstitutional, but he was overruled by the Supreme Court in January 1989. Complaining that the mandatory sentences were too harsh, he soon resigned. “If I remain on the bench I have no choice but to follow the law,” he said. “I just can’t, in good conscience, continue to do this. There are rarely two cases that are identical. Judges should always have discretion.”13 Mandatory sentencing, he said, turns judges into “robots.”
Meanwhile, many states retooled their own statutes, using the harsher federal sentences as a model. Again, the discretionary power lost by judges flowed mostly to prosecutors.
Jed Stone, a defense lawyer who works in Waukegan, Illinois, noting that prosecutors sometimes seem to exist inside an intellectual enclave, said there’s a danger when individuals operate from an insular system in which “there is a failure to see the other side. You begin to view people as others. And when you begin to see people as other than you, they begin to become expendable.” Cutting corners to get convictions and piling on additional years can look like a correct course when the mind has fashioned an image of the defendant as a kind of subhuman target. When a person reaches such a mind state, he or she may view evidence that conflicts with a settled conclusion as having no bearing on the case. In Florida, for example, after DNA testing showed that the pubic hairs at the scene of a rape did not belong to the man convicted of the crime, prosecutors arguing against his appeal said that pubic hairs found on the victim’s bed could have come from movers who brought furniture to the bedroom a week or so earlier. “They essentially argued that there were naked movers,” said Nina Morrison, a senior staff lawyer in the national office of the Innocence Project.14
Prosecutors who use such extreme means to attain questionable ends have lost their moral standing. Out on the street, they come to be viewed as just one more criminal gang. That raises the stakes for everyone—police, suspects, and everyday citizens, and society becomes more dangerous, which is precisely opposite to the desired outcome.