Tuesday, January 04, 2011

Ha Ha Ha, A Prosecutor Got Arrested

That's not the reaction of every defense lawyer.

But recently, a Texas prosecutor, tough on DUI cases, was arrested for DUI. Former Houston prosecutor Murray Newman got upset at the reaction, calling it a "double standard."

The entire situation sent the criminal defense blogosphere in to a frenzy, as noted by Scott Greenfield:

Taken from a particularized instance to a generic battle, this blew up into a seething animosity lurking just below the surface between prosecutors and defense lawyers. It spawned posts by Matt Brown and Jeff Gamso about the relative nature of our work, our relationship with legal concepts and human reality, and the philosophical foundation for irony. These are all big concepts.

It all started with Houston's own Mark Bennett responding to former Houston prosecutor turned defense lawyer Murray Newman's post:

The presumption of innocence exists and applies to Murray’s friend as much as to anyone: if he is punished for DWI when the government hasn’t proven its case beyond a reasonable doubt, that will be offend our senses of fairness. Any criminal-defense lawyer, called upon to represent Murray’s friend, would set aside personal feelings and fight like hell for him, or—if she finds that impossible—decline the case.

But there is irony here that cannot be ignored: not only did Murray’s friend faithfully serve for years the system that now has him in its clutches, but he also has, more than once, argued for harsh punishment in alcohol-related cases to “send a message.” When he has done so, he has hurt human beings. Did they deserve it? Murray and his ilk think they can tell; I’m not so sure, especially when the difference between a maximum of six months in jail and life in prison is—as in Howard’s case—nothing more than dumb luck. I think that knowing what a person deserves would require a godlike wisdom that no prosecutor I have ever met has had.

Blizzard and Allen thought that Howard deserved life in prison. I think they might well have been wrong. Right or wrong, Blizzard and Allen harmed Howard, as prosecutors harm human beings every day. They think—how could you do the job and not think this?—that the people they are harming deserve the harm. And they may be right; the harm they do may be justified … but some of the risk that they are wrong falls on them. If they are wrong, and there is Justice, there will be consequences.


Mark then makes the point regarding the reaction when someone on the "other" side of the criminal justice system winds up a defendant:

A criminal-defense lawyer might feel schadenfreude at a cop’s or a prosecutor’s unfortunate encounter with law enforcement; this is entirely natural. When we feel it, we should note it, think about its roots, and not be ashamed: criminal-defense lawyers are allowed to have feelings, emotions, and even prejudices.

Murray says that when he was a prosecutor:

I never relished in the misery of a defendant that I was prosecuting. I was always keenly aware of the repercussions prosecuting somebody had on collateral matters such as a defendant's family, his job, etc.

That's not the philosophy of every prosecutor, and Murray makes the point:

Somewhere along the way, people picked up the erroneous perception that prosecutors, and by extension, police officers do their jobs because they just truly enjoy ruining people's lives. They enjoy the power trip. They enjoy the chaos.

I am sure that there are probably some prosecutors and police officers that fit that description. And maybe I'm naive, but I truly believe they are in the small minority.

Problem is that those on that power trip are in the same courthouse as Murray. The defense lawyers that went up against Murray, went up against those he calls the "small minority."

Murray is mad at the defense bar. He says that:

Those same defense attorneys, who will gladly stand by any accused murderer, rapist, or pedophile, will vocally celebrate if a police officer or (fingers crossed!) a prosecutor gets arrested for anything. Die-Hard civil libertarians who will (rightfully) proclaim any citizen's Presumption of Innocence, suddenly forget that standard if the person accused is a public servant enforcing the law.

He goes on to say that:

The irony of the situation is stunning, because as members of the Defense Bar celebrate and rebroadcast the arrest of a prosecutor or police officer, they are abandoning the most sacred principles of the Constitution.

But I will never think that they are bad people deserving of trauma in their lives simply for being prosecutors, because that is nothing short of absurd.

And I would never take pleasure in the troubles.


Anyone in the criminal justice system for a few years has seen a colleague, prosecutor, cop, arrested. Hell, when I was an intern in a state attorney's office in law school, a public defender was arrested for his third DUI.

And there was a feeding frenzy. Happiness abound.

Let's not dance around this - anytime someone who enforces law, or defends alleged criminals is arrested, there is a certain "see how that is" reaction.

The reactions, however, depend on two things:

1. The maturity of the lawyer; and,
2. The character of the arrested.

I've known a bunch of prosecutors and defense lawyers arrested, many cops - even judges.

Bad things happen to bad people, and bad things happen to good people.

Upon hearing of the arrest of a prosecutor, my reaction may be, "damn, that's too bad, he was a good guy, always fair, always professional. Or my reaction may be "damn, that's too bad, and too bad the guy's an asshole."

It's real simple for me. It has nothing to do with it being a prosecutor, cop, or judge. It has everything to do with my knowledge of the hell that is the criminal justice system, along with my thoughts on the person arrested. Even the most mature lawyer, upon hearing that the "toughest, meanest" prosecutor was arrested for something, is going to have some sense of Kharma. Some may even wish for jail for a prosecutor that never considered giving anyone a break.

Any defense lawyer that relishes in the mere fact that "a" prosecutor is arrested, better hope they never step off a sidewalk when a cop is around, or have one too many ar the bar on Friday evening.

I've seen some of the most aggressive prosecutors, after arrest and on their way out of the office for good, become different people. It's a humbling experience. While I don't hope for the arrest of any prosecutor, I hope that every defense lawyer out there has the chance in their career to go up and shake the hand of a tough nose prosecutor after they were arrested and wish them luck and watch them almost driven to tears.

I've done it, several times.

The lesson here is that if you are seen as someone who uses what power they have, to the fullest extent, then when you are on the other side of that power, people are going to want to see you incur the wrath.

It's just the way things are, in criminal justice, in everything. We want celebrities to fall so we can say they are just like us. We want people who we perceive as abusing their power, to get abused. When people fall, there are those who want them to get up, and those that want to push them down. Some of this is revenge, some is of the person's own doing.

Kind of all comes down to the Golden Rule, huh?

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter