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A run of recent developments and news commentary this week underscores the powerful role that line prosecutors play in perpetuating a culture that favors abuses of power, overreach and misconduct in local DA offices.

A recent article in The American Conservative highlights the ongoing corruption of our justice system by law enforcement and prosecutors who are not held accountable for unethical behavior. After outlining a series of scandals involving police who deliberately framed individuals to secure arrests or used inappropriate and suggestive forms of evidence collection, the article goes on to decry prosecutors’ use of unreliable informants, using Orange County as an example. It concludes:

Informants have been caught planting evidence, but often their testimony alone is enough for a conviction. There are too many draconian examples to list succinctly, but a PBS film, Snitch, perfectly encapsulates the severity of the problem.

All this is to show there is a clear crisis of credibility within the criminal justice system. Not everyone is part of this win-at-all-costs culture. However, that contingent is far too representative, and they are hardly held accountable, making it a self-perpetuating injustice.

Changing the culture in which prosecutors make decisions that implicate their ethical duties is one way to address accountability, but it’s easier said than done. Andrew Pantazi at the Florida Times-Union reports that surveys conducted of line prosecutors who are working under “reformer” district attorneys reveal that they are often deeply resistant to their new leaders’ priorities. The surveys, which were part of a larger report by Florida International University and others about prosecutorial performance, were conducted along with in-depth interviews of prosecutors working in four DA offices around the country: Chicago, IL, Jacksonville, FL, Milwaukee, WI, and Tampa, FL. Writing about Jacksonville, Pantazi highlights the limits of what a reform-minded district attorney might accomplish when she doesn’t have middle-managers that share her vision:

When Nelson took over, she fired 11 employees and brought in a new leadership team. But prosecutors in the report consistently identified a gap between Nelson’s views and their direct bosses. “If you want a change, you have to make sure those below you have the same mindset,” one prosecutor said. “If you have a division chief that is not in line with the mission, then you will lose.”

One of her prosecutors expressed a particularly recalcitrant – if revealing – attitude toward oversight in respect of plea bargaining:

“You really do walk into a courtroom and adapt to your judge. But in an ideal world the prosecutor would own the courtroom. It’s our decision; we charge the case; the courtroom should be ours. Instead, judges turn us down all the time. So we just go with it. And we adjust our plea offers.”

The report can be found here.

In St. Louis County, Missouri (the home of Ferguson), line prosecutors are going one step further this week to express their hostility towards their new reform-minded leader, voting to join the local police union. The decision is presumably an effort to make it harder for the incoming Prosecuting Attorney, Wesley Bell, to oust the old guard. Radley Balko at The Washington Post describes the scene:

But as we’ve seen with Philadelphia’s Larry Krasner and elsewhere, even when elected with overwhelming majorities, reform-minded prosecutors can expect resistance from entrenched interests who benefit from the system as it exists now. (The new St. Louis city prosecutor, Kim Garner, is also a reformer. This year she both announced that she’d no longer be prosecuting low-level marijuana possession cases, and submitted the names of 28 police officers from whom she said her office would no longer be taking cases, due to concerns about veracity.)

And so with Bell’s election, the county’s career prosecutors are now looking to unionize. The sudden interest in union representation likely comes from fears that Bell will clean out the old guard upon taking office. In theory, career prosecutors should adopt the agenda and priorities of the incoming county prosecutor-elect. But career prosecutors aren’t likely to be all that receptive to Bell’s agenda. So unionizing could make it tough for Bell to implement reforms by providing additional job protections to any prosecutors who refuse to play along.

Balko goes on to outline the problems and conflicts of interest implicated by the prosecutors’ decision to choose the St. Louis Police Officers Association to represent them. As one commentator on Twitter noted:

Prosecutors should join whatever union they want, but that’s not what this is about. A bunch of public servants – who work for a democratically elected official – are engaging in an act of resistance, saying “screw you” to the outcome of an election.

The question for Bell and his reform-oriented peers is not simply whether they can “win over” their subordinates, but what lengths they will go to in order to stand up to them. These latest developments suggest that change at the top is not going to trickle down quickly, and when the elected officials move on, it’s the line prosecutors that stick around.

 

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