The Politics of Criminal Justice

politicsMy mother taught me many years ago to never discuss religion or politics with friends because it can only lead to discord and animosity. Religious and political convictions run deep. We are raised with these beliefs that often shape us, define us and form the core of who we are. An attack on these beliefs is often felt to be an attack on who we are as people. These beliefs can change with time as we travel through life, shaped by our experiences and our new beliefs become as firmly rooted as the old and reflect who we are today.

I don’t recall a political or religious climate more contentious, more divisive or angry than today. We are a country divided on nearly everything, especially immigration, the economy, social benefits and the war on terror. Political events have devolved into brawls and visceral screaming matches. Instead of celebrating our differences, that which has always distinguished America as a beacon of individual respect and personal freedom, we now debase each other for the very differences that make us unique. Racial and religious intolerance is justified by ignorance. We have denigrated ourselves in front of the world and become a joke. There is not a day that goes by that someone does not express their political views on social media. These are beliefs that years ago were kept private. It was as rude to ask someone who they voted for as it was to ask them how much money they made. Today, there is no such stricture.

The Constitution guarantees religious freedom and freedom of expression. That does not mean you have the right to insult me for what I believe or to try to shove your beliefs down my throat. Somewhere along the way we have lost the ability to show one another respect for who we are and what we believe. Too many of us are afflicted with a sense of “If you don’t believe what I believe you are less than me.” Too many folks believe the rest of us are entitled to their political opinions and it has become entirely personal. Some posts are smart and thought-provoking while others are demeaning and stupid. Last week a friend of mine posted on Facebook that if any of his friends vote for a particular candidate they should un-friend him because anyone who can vote for that candidate and share his or her beliefs cannot possibly be his friend. I understand where he’s coming from and why, but it also shows how fragile relationships have become and how willing we are to walk away from those relationships because of political differences.

The one place politics does not belong is in the courtroom but we cannot ignore that it exists. The courtroom is no place to be a standard-bearer for any particular political party but all Texas state court judges run for election as Republican or Democrat or other political party. With the elections quickly approaching, courtroom politics is the ugly baby that can’t be ignored. Judicial and district attorney races traditionally have small voter turnout and the majority of the voting public has no idea who stands for what so they vote along party lines. The voters most interested in these races are those of us who work in the criminal justice system. Judges want to keep their fiefdoms and prosecutors want to keep their jobs. Defense attorneys and their clients just want to be treated reasonably and fairly, which is a pipe dream in some courts. Justice is supposed to be blind not political. The only agenda a criminal court judge should have is to ensure the just administration and due process of law and not to propound a particular political ideology. Any judge who runs on a “law and order” or “tough on crime” platform shouldn’t be a judge. That’s not a judge’s job. It is not the judge’s job to be the reserve prosecutor or to hamstring the accused from presenting a vigorous defense. The judge is a referee whose job is to call balls and strikes, not to determine the outcome of the game.

Unlike the judge, the prosecutor has a dog in the fight but it is the prosecutor’s job to ensure that justice is done, not to convict at all cost. Not to justify the ends by the means. Every Harris County prosecutor takes an oath that they will preserve, protect and defend the Constitution and the laws of Texas and of the United States.

I, (name), do solemnly swear (or affirm), that I will faithfully execute the duties of the office of District Attorney of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.
Article 16, Section 1(a) of the Texas Constitution. (emphasis added)

The importance of this oath is that each and every prosecutor swears to protect and defend the very laws that were established for the protection of those accused of committing a crime. Justice Sutherland best described a prosecutor’s duty in his opinion in in Berger v. United States, 295 U.S. 78 (1935).

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. (emphasis added)

That “guilt shall not escape or innocence suffer” is a prosecutor’s paramount function and should be his or her only consideration. In Texas, a prosecutor has sole authority to file and dismiss charges. Judge’s cannot dismiss charges except on motion of the state. That is a tremendous amount of authority concentrated in a single office, which brings me to the point of this article, the race for Harris County District Attorney. The Harris County District Attorney’s Office is one of the largest and most powerful prosecutor’s offices in the country. Recently, this office has demonstrated a shocking lack of common sense and good decision-making. From jailing a rape victim to secure her testimony to waiting seven months before disclosing that the Precinct 4 Constable’s office destroyed evidence that supposedly affected only 1,600 cases and allowing defendants to plead guilty and go to prison even though the evidence in their cases was destroyed.

What I found most disappointing and the only thing truly transparent about the DA’s office is the leadership’s attitude towards the duties it swore to uphold and the defense bar. In her debate against Kim Ogg last week, Devon Anderson made the following statement:

[Kim Ogg] is clearly not fit to be the Harris County District Attorney. She has not been a prosecutor for twenty-two years. For twenty-two years she has not been a prosecutor. She has the mindset of a defense attorney and a politician … For the last ten years she’s been representing people that we put in prison every day. Child molesters, dope dealers, murderers, even human smugglers. (emphasis added)

For what it’s worth, I’ll give you my two cents on the topic in spite of my mother’s advice.

This statement is chickenshit politics. Pandering to political supporters, the well-heeled set that don’t give a damn about defendant rights. The kind of folks who don’t want to hear about defendant rights. The kind who would like to see defendants buried underneath the courthouse.

And Devon’s message to the Yee Haw! Hang ‘em high crowd? By God, I’m your girl because Kim Ogg is a criminal defense attorney and I spent twenty-two years as a prosecutor! Oh, except for the four years I didn’t. The four years I spent representing criminal defendants all of whom were innocent, salt-of-the-earth folks, the kind you see in Norman Rockwell paintings! But forget that and vote for me!

For those of you who need a reminder of this apparently dark and shameful period in her legal career, go to Anderson’s bio on the Harris County District Attorney’s Office website, which states, “In 2009, Anderson left the bench and started her own criminal defense firm. Her firm’s focus was on the representation of citizens accused of state and federal criminal offenses.” That’s a cute turn of phrase, “citizens accused of state and federal criminal offenses.” I guess she thinks it sounds more wholesome than child molesters, drug dealers, murders and human smugglers. By her own statement she should be disqualified from seeking the office of district attorney but, apparently, thank the Lord, she recovered from this brief period of poor judgment. That’s politics, folks.

Anderson’s statement not only shows a clear disdain for those of us who represent criminal defendants but a desperation to distance herself from the four years she was a criminal defense lawyer. Worse, her handling of the recent Precinct 4 debacle and how it affected defendant rights and jailing a rape victim to ensure her testimony at trial, shows a disconnect from the oath she took as a prosecutor.

The implication that defense lawyers are somehow incapable of doing what is right and just or following the law is unmitigated bullshit. It is an arrogant mindset demonstrated by so many prosecutors who run for judge or district attorney, that they are somehow uniquely qualified for these positions solely because they are prosecutors. They are not. They are, in fact, by a large margin and with few exceptions, not the most qualified. Lawyers are taught in law school to argue both sides of a legal issue. To passionately advocate for both sides before making an argument for the right or best outcome based on the law. Most prosecutors have never seen the law from both sides. Most have never represented criminal defendants, much less took the time to see them as human beings. Many just don’t get it when they negotiate pleas or seek punishment from juries. Many don’t understand the true value of a case or how much of a defendant’s life they are seeking to take away. To them, it is just a number with no context. A two-dimensional perspective. Some crimes and some defendants demand harsh punishment. So many others do not.

I am not beating the drum for Kim Ogg. I don’t know her, never met her. And I don’t have a political agenda. I firmly believe that politics shouldn’t have a seat at the table in the criminal courthouse. My only “agenda” is to represent my clients vigorously and ensure that they are treated fairly by the prosecutors handling their cases and the judges tasked with ensuring they receive due process as guaranteed by the Constitution. If we want a just system, we have to demand that those who run for judge or district attorney give their loyalty to the Constitution, not to their political constituents. Until then, we will have to not only fight for our clients’ constitutional rights but against the political ideologies of the powers with the hope that justice be done and innocence not suffer.

About Brian Roberts

Brian M. Roberts is a criminal defense lawyer and former prosecutor. He has prosecuted virtually every type of state case and has an even broader defense background. He participated in the proceedings of the International Criminal Tribunal for the Former Yugoslavia as a member of the defense team for the former president of what was known as the Republic of Serbia – Autonomous Region of Krajina Crisis Staff. He is fluent in Serbo-Croatian and conversant in Spanish. Brian appreciates that people who find themselves facing criminal charges literally come from all walks of life. Additionally, Brian is board certified in criminal law by the Texas Board of Legal Specialization. Connect with him on twitter: @BMRlawyer.