Disciplining or firing miscreants may be necessary, but it's not enough: It doesn't address the root causes of fearful culture and bad incentives.Ī Fearful Office Culture That Doesn't Encourage Introspection About Wrongdoing Although it is surely true that some are natural bad actors, my experience showed me that prosecutors are strongly influenced to disregard and minimize rights by the culture that surrounds them. My criminal defense colleagues who were never prosecutors themselves often assume that prosecutorial misconduct is rife because prosecution attracts authoritarian personality types. I saw them reject my claims that my clients' rights were violated because they were the government and my client was the defendant and that was their job. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them. I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I even learned it by watching prosecutors commit misconduct-the deliberate or reckless infringement of defendants' constitutional rights. I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause. I learned it by watching prosecutorial suspicion-and even paranoia-from the wrong end. I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching how the system ground up clients indifferently and mercilessly. Once again, nobody taught me to think that way, and nobody had to. I'm a defense-side true believer-the very sort of true believer that used to annoy me as a young prosecutor. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. Attorney's office after more than five years, my disenchantment with the criminal justice system had begun to set in. Nobody taught me that explicitly-nobody had to.
If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called "hard blows, not foul ones." But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Three types of culture-the culture of the prosecutor's office, American popular culture, and the culture created by the modern legal norms of criminal justice-shaped how I saw the rights of the people I prosecuted. I didn't expect it to influence how I thought about constitutional rights. After years of internships with federal and state prosecutors, I knew to expect camaraderie and sense of mission. I was 26-a young 26 at that-on the cusp of extraordinary power over the lives of my fellow citizens. Simpson was acquitted, I began my career as a federal prosecutor.