Sunday, January 30, 2022

Prosecutorial Misconduct and Core Problems of Social Justice

In this San Francisco court case against police officer Terrance Stangel, once again, we have Brady Violations-- suppression of exculpatory evidence by prosecutors and police-- rear their ugly head. In this case, evidence is being suppressed by a District Attorney against an accused cop for almost certainly political reasons. This is one of the dangerous misapprehensions of the "systemized racism" narrative for justice reform. Many of the cases I post (usually in snippets on social media) where exculpatory evidence is suppressed are against minority (or indigent) defendants. Certainly, Harris' scandal related to suppression of evidence as a Drug War prosecutor primarily affected indigent and minority defendants. Cases I've commented about in Missouri happen in both Democrat-dominated St. Louis and the Republican portions of the state, often affecting minority and indigent defendants (especially with our dysfunctional public defender system). But that is not what it is about.

[Let me pause here for a moment for the disclaimers that 1) I am making no statement here about either the guilt or innocence of the officer accused, merely about the conduct in pursuing the case, 2) I am expressing purely personal opinion, not that of any group or organization.]

Brady Violations-- and prosecutorial misconduct more generally-- are primarily a political tool. They are used to drive arrests and convictions so that people see police and DAs "doing something". We naturally want police to make arrests and DAs to get convictions in order to keep our communities safe, but we (ought!) want them to arrest and convict the right people, the people actually guilty, not just anyone who can pad the numbers. Political pressure, however, inevitably tempts police and prosecutors-- both consciously and unconsciously-- to push for the victory in front of them, to convince themselves that the suspect they have is the guilty person and rationalize "whatever it takes" to "get them." If our officials were not subject to this kind of temptation, they would be superhuman. We know from Madison that in fact neither our citizens nor our officials are angels and they never will be. That is why we need both police/prosecutors and checks on their behavior, checks like the Brady Rule.

Rules are useless, however, when not enforced. That is true of criminal law and it is true of rules governing the government. So, what happens in most cases where Brady Violations are uncovered? Often just what appears to be happening here: nothing whatever.

"[Investigator] Hayashi said [on the stand and under oath] she was pressured to sign the affidavit after the comment from the witness was removed."

And the response of the judge?

"The judge indicated that because there was other evidence similar to what Hayashi did not disclose, there was no clear indication of evidence being suppressed."

So, because not all of the exculpatory evidence was withheld, no harm, no foul. Never mind that an Investigator has expressed under oath that she experienced habitual pressure to sign (questionable) documents for fear of being fired, and that we therefore have no idea what else might have been suppressed, amplified, or even strategically delayed to harm the defense's case. The judge further says, "the DA is not on trial". Sure, nor are they ever likely to be. That is the problem. If the judge does not deal with misconduct in the case before them, it will almost certainly never be raised anywhere else: is the very prosecutor creating an environment of pressure to suppress evidence likely to voluntarily bring charges against his or her own employee for doing their bidding? Of course not. The idea is laughable.

But the defendant here is hardly minority or even indigent (the common overlap between those categories is another fruitful topic for discussion, one that Sowell explores). They are, in fact, in a category many in politics profess to be immune from this kind of shenanigans. But that is exactly it: no one is immune. It is not 'systemic racism' but run-of-the-mill politics. The DA made a campaign promise to prosecute cops and is delivering on that, no different from the DA who promises to "get drugs off the streets" What's a little rule-bending for such a worthy goal? Eggs and omelettes, after all.

We are, each one of us, a world in an eggshell.

The problem is political, not racial. Systemic, yes, but not "systemically racist". Politics shifts. The categories of people who are valid political targets flop around in the political winds and the attention of the mob, a theme Hannah Arrendt builds around in her works on Totalitarianism. The victims of tomorrow are not predictable from the victims of today, only the attitude that political blood-letting is acceptable-- even necessary--  remains and-- if we allow it to-- builds to the combustion point. In the end, that is everyone's problem, like a fire loose in a packed neighborhood.

As Thomas Sowell frequently points out, a clear view of a problem is necessary to exploring solutions. A politicized view of the problem obscures the deeper truth that it is the political blood-letting itself to blame, the society that not merely tolerates but demands hyperpartisan competition for retribution, where Republicans and Democrats scheme to outflank each other to be "tough on X". That is where CRT fails. That is where the War on Drugs and the War on Terror fails. It is where the present War on Police and War on Trump Supporters fails. It is, ultimately, per Arrendt, where the "Jewish Question" lead. They are all symptoms of the same phenomenon.

So what is the solution? Arendt outlines boundaries between private action, public (social) action, and government action, in some ways analagous to but subtly different from the public/private spheres our Framers wrote about. Conduct which is healthy and desirable in one sphere (say the social) is actively dangerous when it crosses into an inappropriate sphere (say government). This is true even if conduct in its proper sphere cause strife and controversy. When we enact government solutions to social strife, we escalate violence and enable totalitarianism. The same happens if we push private solutions to what are criminal offenses properly under government (vigilantism). Brady Violations, along with a whole host of related prosecutorial and police misconduct, often stem from a boundaries problem. Our system contains a fundamental principle that prosecutors are officers of the court, not merely partisans in a contest: it is not their job merely to 'win' but to seek a just outcome. It is most certainly not the prosecutor's job to seek "social justice", not for any interest or faction. The very idea of "social justice" in that meaning is totalitarian and unacceptable. Whatever social justice this mob or that mob thinks is good and desirable at the moment, the behavior of withholding exculpatory evidence simply does not belong in the government sphere of a free society

These boundaries are seldom enforced in the justice system and, to a large degree, that is because too many people-- inside and outside government-- believe misconduct is desirable. We simply get the government we ask for and deserve.

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