The Lords of (Lax) Discipline

[Update, Monday, November 29, 7:55 AM]: We are on the road today, driving from Chattanooga to Garrett County. I hope to resume posting tomorrow. Hope everyone had a great weekend! [End Update]

Prosecutors are different than you and me, and even different than other lawyers. Where all of the latter can be sued, investigated, hauled into court or worse for engaging in misconduct, American prosecutors are free of such worries, for they not only are protected by immunity statutes and court rulings that reflect the "I've got your back" relationship between judges and prosecutors, but also are protected by the one entity that can discipline them for misconduct: the state bar.

A recent study from the innocence project at the Santa Clara University School of Law found that prosecutorial misconduct in California was rarely reported and when it was, the California State Bar usually did nothing. After my experience with the Georgia State Bar last summer, I am not surprised at all at what the Santa Clara study revealed.

Anyone who followed Tonya Craft's criminal trial in Ringgold last spring could see that the prosecutorial misconduct by Chris "Facebook-Cruisemaster" Arnt and Len "The Man" Gregor was massive. These men helped to fabricate false evidence, they lied to jurors, suborned perjury, made a mockery of the proceedings, had secret (and unreported) meetings with "judge" brian outhouse, presented charges they knew were false, made inflammatory pre-trial statements, and generally made a mockery of anything we might call "justice."

After Tonya's acquittal, I spoke to one of the assistants of Carmen Rojas Rafter, the Senior Grievance Counsel of the Georgia State Bar, who made it absolutely clear that the bar had no problem whatsoever with what Arnt and Gregor were doing. "Hey," she said to me, "She was acquitted, wasn't she?"

I replied, "Yes, she was acquitted after she and her family forced to spend over a millions dollars just to fight charges that were transparently false." The assistant's answer was chilling: "Well, they (the prosecutors) were just doing their jobs."

She clearly did not like my response when I asked her if falsifying evidence, lying and suborning perjury fit into the "jobs" category of Georgia prosecutors. The assistant then hung up.

Readers should not be surprised when I say that it probably is more likely that your house will be attacked by a herd of rogue elephants than the Georgia State Bar will discipline a prosecutor. The "I've got your back" syndrome with the only Georgia authorities that do anything about prosecutorial misconduct is par for the course not only in Georgia, but also in the rest of the country.

It is human nature that when someone is given power and authority and there are no checks on that person's behavior, that sooner or later the person will abuse his or her authority. If a person can lie with impunity and never have to worry about facing punishment, then we should not be surprised when we find out that the person, well, lies with impunity.

In the case of prosecutors, we can see a pattern of self-selection of certain kinds of people into that line of work. The pay is not that good, so a talented lawyer is likely to try to find a position in a private law firm that pays better. Thus, we often see the ranks of prosecutors filled with people who are mediocre lawyers, but relish being able to bully others.

Even prosecutors who have a strong moral compass find that they will find themselves in situations in which they can compromise their ethical standards and get away with it, and the temptation to cut corners always is out there. Thus, even ethical people can succumb to the lure of winning and telling a few "white lies" in the process, and never having to worry about being caught.

Many prosecutors also have strong political ambitions. Arnt, for example, has long set his sights on higher office, and he had hoped to ride a high-profile conviction against Tonya Craft to better electoral fortunes. If that ride included lying, suborning perjury, helping to fabricate false evidence, and generally breaking the law at every turn, well, so be it. A prosecutor's gotta do what he's gotta do.

There is another problem, as the great attorney and civil libertarian Harvey Silverglate wrote in his book Three Felonies a Day: there is a "Gresham's Law" effect which especially is found in the ranks of federal prosecutors in which the liars and cheats drive out the honest people, who no longer can stomach the prospect of having to lie in order to "do his or her job." Over time, the ambitious and dishonest people rise to the top and push out prosecutors who actually believe in the Rule of Law.

A close friend who spent a year as an assistant district attorney after being graduated from law school told me that she had to get out because the mentality that permeated the office was intolerable for someone who actually cared about right and wrong. She said that she found herself seeing everyone else as a criminal and that "I was a hammer, and everyone else was a nail."

Had she stayed on, as do many prosecutors who don't have this woman's moral compass, one wonders if she would have become jaded and bitter and easily would have hidden exculpatory evidence or lied just to get a conviction. It was clear to her that she did not want to become another Chris Arnt or Len Gregor, who demonstrated during Tonya's trial what happens when prosecutorial misconduct and lies go unpunished. Had either men actually believe that he could lose his law license and maybe his freedom for lying, suborning perjury and fabricating evidence, would we have seen the proceedings turn into something that resembled a scene in "Animal House"?

In Matthew 20, Jesus tells his disciples that the ruler of the Gentiles loved to use their power over others. However, he added that his disciples were to have the heart "of a servant." in The United States of Ambition, we have corrupted the language to a point where those who lord it over everyone else call themselves "public servants" when, in fact, they are as ruthless and dishonest as those rulers of long ago that Jesus condemned.

This is the "justice" system we have today. It is populated with ambitious, dishonest people who know they won't face any consequences for lying and lawbreaking because the authorities have their backs. It is true in California, it is true in Georgia, and it is true everywhere in this country.

As I see it, only the Grace of God prevents the judicial system of this country from sinking even further into the sewer. Tonya Craft, in the end, was acquitted despite the best efforts of Arnt, Gregor, outhouse, the Georgia attorney general, and the Georgia State Bar. Every once in a while, the honest people win, and I thank God for those fleeting moments of justice.