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January 13, 2014
Does Gov. Christie kerfuffle suggest being a bully is always a big part of a former prosecutor's playbook?
I have been thinking about the question in the title of this post for a few days, and a helpful reader altered me to this post at Above the Law talking through a similar line of thinking. The post by defense attorney Joe Patrice is titled "Governor Chris Christie Did What We All Should Have Expected From An Old Prosecutor," and here are excerpts from a lengthy and amusing screed against Christie and all modern prosecutors:
Unless you’re living under a rock or stuck in traffic on the George Washington Bridge, you know that N.J. Governor Chris Christie spent [Thursday] digging himself out of the Fort Lee traffic scandal in the most Jersey of manner — by placing a proverbial bullet in the back of the neck of one of his most trusted allies Tony Soprano-style. He even invited the media over to the Bada-Bing for a couple of hours after he did it.
Deputy Chief of Staff Bridget Kelly took the rap for closing lanes on the GWB and creating a traffic snarl for Fort Lee residents after a smoking gun email emerged where the staffer seemingly ordered David Wildstein, himself a once highly-paid Christie staffer who resigned last month, to stop up the bridge to make life miserable for Fort Lee. The mayor of the town — a Democrat — had failed to fall in line and endorse the Republican Christie in his re-election campaign, and Kelly’s email outlined the chosen means of retaliation. It seems dumb, but people may have died over this issue.
Liberal columnists are calling Christie basically an overfed Pol Pot and conservatives are comparing this — because they cherish beating their dead one-trick pony — to Benghazi. But whether Christie was directly involved in this scandal or not — and so far the digital paper trail seems to begin with his mild-mannered aide showing uncharacteristic initiative and ends with a high school crony whom Christie put in charge of the bridge — this scandal falls somewhere between unsurprising and utterly inevitable.
Christie is a former prosecutor, serving as a U.S. Attorney from 2002 until 2008. The modern prosecutor is armed with the luxury to exact petty, brutal revenge on any and all who cross him or her, and this is the mentality that Christie brought into the Governor’s Mansion. Indeed, he made this mentality his political calling card.
Oh, and will this matter in 2016? Yes, this will matter in 2016. Sort of. Or sort of not. Look, we’re getting ahead of ourselves....
[The Gov. Christie administration] atmosphere flows directly from the arrogance of a prosecutorial office. Chris Christie frigging loves being a prosecutor. He talks about it all the time. He gets off bullying journalists who ask him simple goddamned questions by pointing out that he’s a prosecutor....
[U]nabashed imperiousness is not just a product of Christie’s thuggery; rather, it flows from the modern prosecutor. More and more, society judges prosecutors by their ability to make public spectacles of securing big prison time for low-hanging fruit — even to the exclusion of taking on the harder cases. Acting as a neutral purveyor of justice has fallen so far to the wayside that defense lawyers are legitimately shocked when prosecutors adhere to their constitutional duties. They are the masters of their own little kingdoms, with nearly limitless power over the fates of all those who brush up against the criminal justice system in their domain. No wonder they get a little drunk with power.
Armed with extensive discretion and so many potential charges to bring, prosecutors can, and do, construct draconian threats by heaping additional and enhanced charges on defendants who refuse to play ball. Plea deals are no longer limited to “going up the chain,” as the masterminds of wrongdoing are now given deals to rat out their underlings for harsher punishment....
Prosecutors are incentivized to use all of their vast power to get more people convicted, and they’re willing to use a bazooka to kill a cockroach if it advances that ball. Listen, I spent a lot of time working with current and former prosecutors. And whether I represented a cooperator working with the government or I was sitting on the same side as a defense lawyer freshly out of the prosecutor’s office, it always disturbed me how quickly they would leap to asking “how do we screw them?” over the most minor of slights.
When this is the model of success that propels you into office, how does one reset? In Christie’s case, he never eschewed this model of leadership. He may well have directly ordered these lane closures, but even if he didn’t, the mentality he has championed in his meteoric rise to prominence invited this sort of behavior. And now we’re supposed to be forgiving when he says his deputy acted alone when plotting to make life hell for someone unwilling to kowtow to the Governor’s overtures?
January 13, 2014 at 11:36 AM | Permalink
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Christie's actions here should not be used to represent even an average politician, no matter an average prosecutor. Forcing it into a frame too much.
Posted by: Joe | Jan 13, 2014 11:57:51 AM
My take on the Christie defensive (perhaps as a former prosecutor, with much of law/procedure militating in govt. direction, he hasn't a familiarity with the practice):
womenfolk are going to be angry that Christie's first inclination was to throw a woman to the wolves.
Posted by: BRENDA | Jan 13, 2014 12:21:39 PM
Absolutely right Joe. The average prosecutor is far far worse. (boom tish)
Posted by: Daniel | Jan 13, 2014 12:58:01 PM
Someone should tell Mr. Patrice about the large number of defense lawyers who started off as prosecutors, but then decided they wanted to make money.
Posted by: Bill Otis | Jan 13, 2014 1:35:30 PM
LOL good one bill. But your not helping the cause. Simply making sure that when the American public get's fed up. BOTH groups get the axe!
Posted by: rodsmith | Jan 13, 2014 2:22:40 PM
Chris Christie was not really a "prosecutor"---he was the presidentially appointed U.S. Attorney (i.e., a politician). There is a big difference. If you don't believe me, ask any AUSA who has dealt with U.S. Attorneys who are only sitting in the office because they have a law degree and were friends with a congressman. But, that point aside, Patrice's article is such a poor piece of journalism that I am surprised somebody of Prof. Berman's caliber would re-post it. The article itself actually makes no sense.
Posted by: Not really | Jan 13, 2014 4:03:37 PM
Not really: I called this piece a "screed" because I do not regard it as journalism. But it provide a perspective that I find noeworthy, and it sort of echoes the line I often hear former prosecutor (and now Georgetown Law Prof) Paul Butler often say: "I became a prosecutor because I hate bullies. I stopped being a prosecutor because I hate bullies." (These are the first two lines of the second chapter of "Let’s Get Free: A Hip-Hop Theory of Justice" by Paul Butler (which is reviewed here; http://rhhr.org/2010/06/24/book-review-let%E2%80%99s-get-free/).
You are right that Christie's job was more political that most who work for DOJ, but I think Bill Otis and many other former AUSA would rightly say that it is still right to call every appointed U.S. Attorney a federal prosecutor. In addition, and perhaps even more valuable in this setting, many U.S. Attorneys take pride in being the biggest bully in town working for the good guy. Consider this post from last year about an the USA of the Southern District of Indiana bragging that his office has "produced the longest average prison sentences in the country over the last two years." http://sentencing.typepad.com/sentencing_law_and_policy/2013/02/should-a-us-attorney-take-pride-in-helping-to-have-produced-the-longest-average-prison-sentences-in-.html
Posted by: Doug B. | Jan 13, 2014 5:20:12 PM
US Attorneys vary considerably in prior experience. Christie was somewhat unusual in that he had no experience either as a prosecutor or a defense lawyer.
Defense lawyers specialize in complaining. The reason for this is not necessarily that they have personality defects. The reason is that the client is guilty as sin, so the smart thing to do is change the subject.
Often, the subject gets changed to "The Prosecutor Is Satan," or some variant thereof, which is what we see in Mr. Patrice's article. The key, as a prosecutor, is to recognize this as a tactic and thus not to take it personally.
I got a good lesson about this early in my career. I was having a fairly candid, but not angry, conversation with a prominent defense attorney, who said, "Look, I can't try the facts and I can't try the law, so I have to try you."
Posted by: Bill Otis | Jan 13, 2014 5:44:05 PM
[music--tune of the Armour Hot Dog Song]
Chrisie. He's a fatso.
What kind of kids like mister fatso?
Fat kids, skinny kids, kids who climb on rocks.
Dumb skids, wrinkled squids, even squids with chickenpox! Like fatso.
Mister Fatso. The dogs, kids like, to bite.
Posted by: Liberty1st | Jan 13, 2014 5:52:21 PM
If Bill Otis thinks that a presidentially-appointed U.S. Attorney who has never walked into a courtroom and prosecuted a case is a "prosecutor," then I would have to respectfully disagree with him. Some U.S. Attorneys rise through the ranks and have worked in the trenches, and it is fair to call those U.S. Attorneys "prosecutors." A civil lawyer and lobbyist (like Christie) who becomes the U.S. Attorney because of politics is no more a "prosecutor" than the CEO of an airline is a pilot.
Posted by: Not really | Jan 13, 2014 5:53:21 PM
Not really --
In the everyday sense, you're right: A prosecutor is a person who obtains an indictment, presents the government's case to the jury, cross-examines defense witnesses, writes and argues the sentencing memo, etc. In that sense, neither Christie nor many US Attorneys was a "prosecutor." (Neither is Eric Holder, for that matter, although he is often referred to as the nation's "top prosecutor").
In a formalistic sense, the US Attorney is a "prosecutor" simply because he can set office priorities and veto any of the work of his subordinates.
US Attorneys vary widely in how they approach the job. Many take an interest in the work going on in the Office. A few are more interested in making nicey with the private bar in order to facilitate their political plans/next career move.
Posted by: Bill Otis | Jan 13, 2014 6:55:34 PM
Some prosecutors are bullies. Some defense attorneys are bullies. So are some judges. The premise of Mr. Patrice's post is strained and the point elusive.
Posted by: USPO | Jan 13, 2014 7:30:42 PM
Bill Otis writes: "Defense lawyers specialize in complaining." This may be true. of some. But they complain because prosecutors cheat and hide the ball. As recently noted by the Chief Judge of the Ninth Circuit (a quite conservative judge, Brady violations are "epidemic." So defense lawyers will keep complaining (and they should) until prosecutors play fair. I would not hold your breath.
Posted by: anon | Jan 14, 2014 1:18:05 AM
Yes, I did say that defense lawyers specialize in complaining. The next two sentences were: "The reason for this is not necessarily that they have personality defects. The reason is that the client is guilty as sin, so the smart thing to do is change the subject."
Do you disagree with that?
My experience over 18 years in a USAO is that factual guilt is almost never in question, which is overwhelmingly the reason there are so many pleas.
I also said, "I got a good lesson about this early in my career. I was having a fairly candid, but not angry, conversation with a prominent defense attorney, who said, 'Look, I can't try the facts and I can't try the law, so I have to try you.'"
Does that sound like something a defense lawyer would say in a moment of candor, or not?
Posted by: Bill Otis | Jan 14, 2014 3:34:14 AM
It's a game. It is theater. It is a feminist witch hunt. It is self dealing. It has tort immunity, which is unconscionable given their frequent misconduct and incompetence. It is a stepping stone to a lucrative private practice.
Bill should comment on the $2 million cost of the Martha Steward prosecution on a $40,000 insider trading beef. The original crime could have been settled for a small fine. She was prosecuted for lying to the FBI. There is a patriotic duty to stymie those lawyers, even to seek their personal destruction. She ended up buying her depressed stock, and making $billion upon release from prison. Meanwhile, MS13 illegal alien gangs behead people who have offended them with impunity. Is it possible that lawyers use that office only to promote their personal self interest and not he public interest? They want to see their names in the paper so they have a huge pageant trial on the alteration of phone records by Martha Stewart, and do nothing about murderous maniacs in our nation illegally.
Welcome to the business model of Inquisition 2.0. The V1.0 ended when French patriots beheaded 10,000 high church officials. That is their model. That remedy is our model.
Most unforgivable act of treason, for which they must all hang? Intimidation of our warriors, and the cancellation of orders down to the tactical squad level. Lone Survivor depicts a debate about killing a shepherd who spotted our heroes and reported them to the Taliban that surrounded them and killed our heros. The federal lawyer filth must be named, arrested for treason, and must be hanged. A federal lawyer traitor cancelled the order of a 4-star general to shoot at the limousine of Mullah Omar. The federal lawyer traitor has provided federal price subsidies to the producers of child porn in criminal syndicates abroad, to the drug cartels, to the Taliban producing heroin. But they will prosecute our heroes protecting our nation. They are the Commissars of feminist political correctness embedded into our military units.
Posted by: Supremacy Claus | Jan 14, 2014 7:01:56 AM
In the Sopranos, in Casino, which have reputations for accuracy, the Feds really take their time in their investigations. So slow. The bad guys do their business undeterred by the the FBI surveillance. They are a joke in both shows.
Posted by: Supremacy Claus | Jan 14, 2014 7:09:22 AM
Bill makes the point of universal factual guilt of defendants. However, the charges are often violations of trumped up, pretextual mala prohibita, sharp business practices. So they rough up the office staff and destroy a doctor up coding ambiguous procedure codes. Meanwhile, the Russian mafia submits bill of fictitious Medicare patients and scores $hundreds of millions, with no resistance.
I have proposed counter measures including total e-discovery of all personal and work computers of the prosecutors, searching for an improper motive, and reporting all child porn to the FBI. I have proposed a black list of these traitors, allowing 9/11 for political correctness, by all service and product providers. I have advocated continual stream of reports of ethics violations for every dubious utterance. If there are evolving standards of decency in appellate courts, then they should allow tort liability for deviations from professional standard, including the ethics rules that apply to prosecutors. Personal information should be posted to generate public protests at the churches, the homes, and the clubs of these lawyers, so they become anathema. As they are driving the productive male out of business, so they should be driven out of office by making their lives a waking nightmare.
They are not even human. They give no quarter in destroying the lives of innocent defendants. No quarter should be shown them. Their tort immunity fully justifies violence against them in formal logic.
Posted by: Supremacy Claus | Jan 14, 2014 7:27:04 AM
anon. I would make you a bet. For everyone case of the prosecutor "hiding" the ball (and many of the Brady violations are the police simply not forwarding all of the reports to the prosecutor or a court criticizing the level of detail in a report), I bet there are 1,000 cases of defense attorneys not complying with their duties under the state discovery rules -- most of which never end up in a reported case because calling a defense attorney on a violation is a lose-lose proposition for the prosecutor -- either a court will find an excuse on appeal why any sanction on the defense went to far and impaired the defense or a later court while find that defense counsel was ineffective for not complying with the rules.
During my time as a defense attorney, I only had one case in which something came up at trial that the State failed to properly disclose. During my time as a prosecutor, I only know of one defense attorney that I regularly dealt with who strictly complied with the rules on discovery. Most of the rest made untimely disclosure but knew that as long as they did it three weeks or so before trial that they would never get sanctioned for it.
Posted by: tmm | Jan 14, 2014 10:15:20 AM
Correction for Bill Otis. Bill implies that Eric Holder did not have real prosecutorial experiences, such as trying cases, arguing sentencing positions, or doing grand jury investigations. In fact (as Wikipedia confirms), Holder was a prosecutor at DOJ's Public Integrity section for 12 years. Only after that did he become a judge, then be one DC's U.S. Attorney, then go on to other DOJ roles. (Check the Wikipedia bio if you have doubts.). He may not have done line-prosecution recently -- but 12 years is pretty substantial prosecutorial e pertinence.
Posted by: Correction | Jan 14, 2014 10:38:09 AM
Bill Otis, you write: "The reason is that the client is guilty as sin, so the smart thing to do is change the subject. Do you disagree with that?"
I've been a practicing defense attorney for many years. I have no idea what you mean. Why would I change the subject? The subject is always the same: my client's best interests. My role a defense counsel is to represent the guilty and innocent alike as best I can. I counsel and advise them and I advocate for them. For those who insist on a trial, we have a trial. For those who don't want a trial, I try to persuade prosecutors to offer reasonable plea agreements, and to take reasonable positions at sentencing. If grounds exist to file motions to suppress evidence, and if it's in my client's interest to file them, I file them. With judges I take the same position. I never change the subject.
You write that "My experience over 18 years in a USAO is that factual guilt is almost never in question, which is overwhelmingly the reason there are so many pleas." Your point? Would you have the guilty go without counsel? Would you have the guilty face the justice system alone? Don't constitutional rights, like the rains from heaven, fall on guilty and innocent alike? Didn't we decide that point along time ago?
You also write a defense attorney once told you: "Look, I can't try the facts and I can't try the law, so I have to try you.'" I don't know who you spoke to, but I certainly have never said such a thing. Of course, if grounds exist for a motion to dismiss for prosecutorial or police misconduct, and if otherwise in my client's interest to do so, I file it.
Posted by: anon | Jan 14, 2014 12:29:49 PM
1. The subject in a criminal prosecution is not you or your view of your job. The subject is your client's behavior. And that is the subject defense counsel wants to steer clear of by changing the topic to anything else, frequently (and as we have seen on this very thread) that the prosecutor beats his wife, or some such.
As I say, I learned not to take this stuff seriously, because it's just a tactic to get everyone's mind off what the client did.
2. "For those who don't want a trial, I try to persuade prosecutors to offer reasonable plea agreements, and to take reasonable positions at sentencing."
That's not true if your prior remarks are correct. You don't want the prosecutor to offer reasonable positions, you want him to give away the store, since it is that, and not what's reasonable, that would BEST serve the client. Is that not so?
3. "You write that 'My experience over 18 years in a USAO is that factual guilt is almost never in question, which is overwhelmingly the reason there are so many pleas.' Your point?"
My point is that the wail that AUSA's are plotting to send innocent men to jail is complete baloney. They're not innocent (as, I suspect, you know at least as well as I do). In the huge majority of cases, they don't even CLAIM to be innocent.
4. "Would you have the guilty go without counsel?"
Ummmmm, have I ever said I would have them go without counsel? No, as you may know, I have said the opposite numerous times. But I would like a little more honesty and forthcomingness in the system, you bet. If there's something wrong in telling the unvarnished truth rather than trying to dodge it or bury it in a dust storm, my parents never told me about that.
5. "You also write a defense attorney once told you: 'Look, I can't try the facts and I can't try the law, so I have to try you.'" I don't know who you spoke to, but I certainly have never said such a thing. Of course, if grounds exist for a motion to dismiss for prosecutorial or police misconduct, and if otherwise in my client's interest to do so, I file it."
And suppose the grounds are flimsy, or exotic, or (you have strong reason to believe) concocted, but it's still in your client's best interest to accuse the prosecutor or being a cheater, extortionist, thug, punk, Nazi, child molester and God knows what else I've seen (both in litigation and on this forum, while we're at it).
Do you go ahead and do it?
With the client's best interest being the touchstone, why not?
Posted by: Bill Otis | Jan 14, 2014 2:48:35 PM
// You write that "My experience over 18 years in a USAO is that factual guilt is almost never in question,
which is overwhelmingly the reason there are so many pleas." Your point? //
Very telling; that the "practicing defense attorney for many years" does not challenge this speaks volumes.
To the general, non-lawyerly class, the issue of factual innocence or guilt reigns supreme over games and self-interest.
Posted by: Adamakis | Jan 14, 2014 3:03:14 PM
If you actually read what I wrote, you would see that I'm talking about what Eric Holder does now, not what did 20 or so years ago.
P.S. Holder and I were colleagues at Main Justice a-way back when, although I didn't know him at the time and didn't meet him until later.
Posted by: Bill Otis | Jan 14, 2014 3:17:18 PM
COMMENTS ARE INTERESTING .
The curve of distribution applies to all lawyers , whether judges , justices , prosecutors , defense counsel or otherwise .
I have seen extremes at both curve ends and near the curve middle
Posted by: Just Plain Jim (Just Another Guy) | Jan 14, 2014 4:16:40 PM