299. Prosecutorial misconduct
"Prosecutorial misconduct" is one of those great phrases, like "right to life" and "right to choose," that settles the argument before it begins. It's an example of "unspeak," or more formally of framing. The phrase "prosecutorial misconduct" is all over the internet, as it is all over the legal world. A Westlaw search of national criminal law cases found 9,574 usages of the phrase since 2004. (Westlaw won't return more than 10,000 hits for a search.)
Prosecutors shouldn't feel too paranoid, though. "Ineffective assistance" is the roughly corresponding term applied to defense lawyers. It means that the defendant was only convicted because his (or, occasionally, her) defense lawyer "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" That's an essentially vegetative standard: it means the lawyer was so hopelessly incompetent that he or she really was Brendan Sullivan's potted plant.
The phrase "ineffective assistance" has appeared in 8,315 opinions in the Westlaw database just since the beginning of this year. No joke.
Obviously, then, we have an epidemic of incompetent defense lawyers out there to go with our epidemic of evil prosecutors. Either that or we have a lot of people in prison who want to get out.
The LA Times recently ran an article on prosecutorial misconduct. My first thought was that the humor was in poor taste, but on second reading I perceived internal clues raising the disturbing possibility that it may not have been intended as a parody of legal journalism. The article reads:
Sounds like a pretty stark disparity, doesn't it? Wouldn't you expect the reporter to, say, spend a moment or two attempting to explain where the truth lies, or to explain why the speakers were both providing accurate and even non-contradictory numbers?
And wouldn't it be helpful to the reader to know what the subject of their debate - "prosecutorial misconduct" - means? The reporter, Henry Weinstein, doesn't think so - or, more likely, doesn't himself know.
Patterico provides a hilariously-thorough takedown of Weinstein here. Despite Professor Ridolfi's anti-feminist credentials as frontwoman for the Rape-Decriminalization Project (hey, two can play at the unspeak game) (see post 246 and post 290), there's no reason to think that the figures dug up by her work-study helper Jessica Marz are skewed. Ms. Marz simply concluded that out of 2,130 cases in which prosecutorial misconduct was alleged, appellate judges agreed with the defense 443 times. But during the same time period, of course, California's many appellate courts heard vastly more than 2,130 criminal appeals. So the professor's figures didn't actually contradict those of the deputy district attorney.
How hard would it have been for the LA Times to explain that to its readers? Ah, but that's not a journalist's job, you see. We're objective, we just report the facts. If our presentation of the facts deprives them of all meaning, well, that's because our task is so sacred, you see. (See post 295.) As everyone knows, mystery is always at the heart of the sacred.
Anyway, as to the even more basic question (what is prosecutorial misconduct?), we can turn for guidance to the reliably-entertaining Kansas Supreme Court. (See post 284.) In the course of affirming Martin Miller's conviction for murdering his wife - a very big story in Lawrence, home of the two Bills, Burroughs and James - the court found the prosecutor had committed misconduct. You see, in his closing argument, the prosecutor referred to the murderer as ... a killer!
No, really. Horrible, isn't it? It gets even worse. The prosecutor, in the summation of the prosecution's case, used the word "killer" to describe a murderer no fewer than six times. It almost makes you weep, doesn't it?
So now you know what "prosecutorial misconduct" means.
Saturday, August 11, 2007 at 10:18AM in Academics and violence, Covering the courts, Legal rhetoric
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