Why Punishing Bad Prosecutors Won’t Fix the System

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Photo by Allen Allen via Flickr

It may have been a new story once, but it’s an old story now.

Many wrongful convictions were influenced by prosecutorial misconduct. Lying jailhouse snitches are recruited and rewarded; exculpatory evidence is buried; perjured testimony is ignored.

The prosecutors pulling these stunts act with impunity. That’s an old story too.

They are immune from civil law suits; criminal prosecution and professional discipline are virtually unheard of; they are almost never held accountable.

So, there was a man-bites-dog element to the media accounts of the disciplinary proceedings brought by the Massachusetts Board of Bar Overseers against three prosecutors implicated in the metastasizing scandal generated by Sonja Farak, the second of two state drug lab chemists (Annie Dookhan was the other) who committed wholesale forensic frauds that ultimately required the dismissal of thousands of cases.

The hearings answered a pent-up desire to see some sort of punishment fall on some prosecutor. They got extensive play.

Systems cannot survive without disciplining their conscious rule-breakers. The criminal justice system is no exception, and there have been numerous efforts (notably Barry Scheck’s) to devise procedural practices that clarify how prosecutorial misconduct can be illuminated and sanctioned.

Still, punishing individual prosecutors is a bad place to stop, and it was hard to read the coverage of the Board of Bar Overseers proceedings without thinking of a scene in Voltaire’s Candide.

Voltaire’s travelers arrive in Portsmouth harbor on the British coast and encounter a large crowd, its attention focused on a finely dressed, blindfolded man kneeling on the deck of a warship. He turns out to be an Admiral.

A firing squad shoots him in the head “with all the calmness in the world, and the whole assemblage went away well satisfied.”

A baffled Candide is told that the Admiral had failed to engage his French adversary at close enough range. When Candide points out that the French admiral was equally distant from the condemned man, his companion agrees, but explains that “In this country it is found good, from time to time, to kill one Admiral to encourage the others.”

You can see this motivation at work in the media response to the prosecutors entangled in the Massachusetts lab scandals.

The prosecutors’ efforts to explain their decisions were reported as craven attempts at distraction and evasion, to be greeted with derision. One headline characterized the proceedings this way: “A Cog In A Wheel: Three Ex-Prosecutors Facing Potential Discipline In Drug Lab Scandals Blame System Or Each Other.”

Stern dismissals of these extenuating defenses are emotionally satisfying. They may even be inevitable in light of the prosecutors’ generally consequence-free history of shattering lives.

But the people who study safety in aviation, medicine, and other dangerous fields tell us that this reaction is fundamentally mistaken―that it reflects a wrong-headed understanding of how things go wrong that cripples any effort to prevent repetitions.

By confining ourselves to hunting down and punishing evil-doers we forfeit an enormous opportunity to learn and to repair the criminal system.

To begin with, even when we catch prosecutors red-handed in an exoneration case, we face the fact that they couldn’t have produced the tragedy on their own.

The cops had to arrest the wrong guy; the defense had to fail to intercept the mistake; the jury allowed the wool to be pulled over its eyes, and the courts’ endemic see-no-evil approach to prosecutors both emboldened the rule-breakers and obscured the damage.

Someone―or many “someones”―devised the incentives, set the workloads, did the hiring, training and supervision. Ask “Who is responsible?” and the answer is almost always “Everyone involved to one degree or another.”

These are “organizational accidents.”

And beyond the question of “Who?” there is the more important question of “Why?”

We tend to assume that we confront scattered villain-prosecutors, toxic nodes of bad character, who cut swashbuckling paths through the rules towards their career ambitions. Identification and excision are the only treatments required.

Safety specialists are convinced that the decisions we deplore in retrospect are―no matter how morally repulsive―“locally rational.” They serve some purpose for the bad actor.

A Flawed System

The prosecutors we’re targeting got to their decisions through a process of “sense-making”: weighing their options, predicting the outcomes. Erring prosecutors are trying to succeed within their systems, not to break them. Leave the same environment for the next prosecutor, and you risk getting the same result.

The criminal system can’t be understood as a simple, linear, sequence in which x happens, and y inevitably follows. It isn’t even “complicated” as, say, a jet airliner at rest is complicated. Instead, like a jet in operation, the criminal system is complex: not an arrangement of switches and gears, but a swirling cloud of overlapping (and often conflicting) conditions and influences that don’t produce inevitable effects, but affect the probabilities.

Punishing the few prosecutors we do catch “to encourage the others” can influence later prosecutors’ decisions, but the enhanced possibility of future punishment will never be more than one influence among many influences.

It isn’t a silver bullet. (After all, the criminal system is jammed every day by long docket lists of defendants who knew perfectly well that they would be punished if they were caught, but offended anyway.)

Voltaire’s Candide episode incorporates an actual event: the execution of Admiral John Byng in 1757 after his court martial for failure to protect the strategically important fort at Minorca. After Byng’s death, further inquiry indicated that much of the fault for the loss of Minorca could be traced to the acts of the Ministry, which failed to adequately man and provision Byng’s ships. In important ways, Byng had been set up to fail.

His prosecution made that more difficult to see.

The Massachusetts prosecutors offered a catalogue of explanations for their conduct during the Board of Bar Overseers hearing. One pointed to her junior status and inexperience. Orders from superiors were blamed by one; the oversights of subordinates were blamed by another.

Gaps and glitches in communications between the state Attorney General’s office and county District Attorneys were noted. The performance of the state public defender agency was criticized. The sheer volume of drug cases implicated in the successive Dookhan and Farak scandal aftermaths came up in repeated references.

Canaries in a Coal Mine

Whether these concerns should absolve the Massachusetts protagonists or extenuate their conduct as a matter of professional responsibility, I don’t pretend to judge.

But let’s note that in the disciplinary proceedings against these prosecutors the counsel for the Bar dismissed their claims as pure obfuscation―as “attacks on empty chairs.” They deserve more attention than that. These prosecutors should be treated as canaries in a coal mine.

Yes, they could have done better. But do we want to put their successors in the same spot?

The adversarial disciplinary process provides performance reviews of individuals. It does not provide the fully-contextualized “forward-looking accountability” that might illuminate the steps we could take to prevent a repetition.

To accomplish that we need to develop the complementary capacity for regular all-stakeholders, all-ranks, “sentinel event” reviews that can pivot from blame to prevention. We need to understand these scandals as, for example, Diane Vaughan did the space shuttle Challenger launch decision, for what they are: system failures.

If we get to work on that we can promote a culture of safety in which everyone—lab technicians, junior prosecutors, and the whole population of frontline criminal justice practitioners―is working together on continuously improving the system’s reliability.

We could develop a culture in which everyone feels his and her own individual responsibility for a just collective outcome.

We could learn the lessons that empower individual workers to step up and “stop the line” when they see something going wrong, and to stop the line before you get to the 10,000th case.

james doyle

James Doyle

The fact is, if Massachusetts had organized a sentinel event review after the Dookhan scandal and learned its lessons, we might not have been forced to endure the damage that the handing of the Farak cases inflicted.

There is more than one way to “encourage the others.”

Like it or not, they all work in a system and they are all dependent on each other. They have to be encouraged to do more than follow rules. They have to actively seek Safety.

James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes readers’ comments.

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