Category Archives: The Prosecutor Series

The Education of a Maverick Prosecutor, Part I: Life in the NOIR Zone

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by Bruce Han­ify

The fol­low­ing Pros­e­cu­tor Series encap­su­lates what I learned dur­ing my 15 years as a deputy pros­e­cu­tor. They are intended to shed some infor­mal light on a very dark area: crime.  Hope you enjoy them.

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I was born before 1960, when the world was Black-and-White. Repressed men and women mum­bled innu­en­dos through cigarette-clenched lips. Dan­ger­ous, exis­ten­tial con­flicts cir­cled rest­less dreams like a hun­gry lion — kept in check by house pay­ments, kids, and alco­hol. You know what I mean. If you are 50-years-old or older, you were likely con­ceived in a cloud of Chester­field smoke and learned to accept lip­stick on your restau­rant glass as a part of the Sur­geon General’s rec­om­mended diet for future depres­sives. Yeah.

That’s Noir, man.

The A&E execs pay peo­ple to answer the ques­tion: “What is film Noir?” Are you kid­ding me? Noir is not a film, man. It’s the world America’s World War II com­bat vets revealed through films like Black Angel and The Asphalt Jun­gle. The world of Noir started with All Quiet on the West­ern Front and ended with Cape Fear. That’s Noir, Jack. About 30 years. If you throw in Twi­light Zone’s five sea­sons, 35 years.  Noir is the world that shaped my soul.

My sis­ters and I grew up in a house where the specters of the dead did not let us for­get the shad­owy side of life. My mother’s first hus­band was killed at Nor­mandy; her sec­ond hus­band — my father — landed at Nor­mandy and sur­vived the Bat­tle of the Bulge through VE Day. We didn’t watch war movies with either of our folks around.  The end result of my early years was that I was always more at home in the 1940s than I am in our own time, which seems so .… so much like a pam­pered kid from a one-child fam­ily. They’re only cute to their par­ents. The rest of us are forced to endure their specialness.

Flash for­ward to the sum­mer of ’88. Freshly divorced, and rest­less, I began what would turn out to be a near-career of pros­e­cu­tion in Yakima County. One after­noon I was argu­ing a sum­mary judg­ment motion in a civil case against the County. I turned and saw that Jeff Sul­li­van, the elected pros­e­cu­tor, was watch­ing me in action. I barely got back to my office when the phone rang. It was Sul­li­van. On a sweaty August day in 1988, I hung up my spurs as an insur­ance defense attor­ney and became a deputy pros­e­cu­tor.  I would spend my next 12 years in that office.

Yakima was a shoot­ing gallery. It seemed there was a drive-by shoot­ing almost every week. A friend of mine in the defense busi­ness went with his client’s fam­ily to the Pizza Hut for lunch break dur­ing his client’s trial for .… a drive-by.  A car back­fired. Every sin­gle per­son at that table instinc­tively ducked for cover. That’s how it was. With­out even real­iz­ing it, I learned to check belt lines when I was on the street, in stores. Yakima was my sweaty intro­duc­tion to America’s post-Noir world, a place where there was nei­ther romance, nor honor.  Smarmy greed and cruel force were the dom­i­nant cur­rents in America’s dete­ri­o­rat­ing social scene.

Man per­fected by soci­ety is the best of all ani­mals; he is the most ter­ri­ble of all when he lives with­out law, and with­out jus­tice.  Aris­to­tle

The only entity that can medi­ate between the indi­vid­ual and the tribe is, for bet­ter or worse, a state, and it is the prosecutor’s pecu­liar respon­si­bil­ity to enforce the will of the state against an indi­vid­ual.  Because jus­tice is rooted in pro­por­tion­al­ity, and pro­por­tion­al­ity can­not take shape with­out some­thing with which to mea­sure its appli­ca­tion, i.e., force, it nec­es­sar­ily involves the use of power against oth­ers.  Hence there is always an ele­ment of war in pol­i­tics.  You can­not impose an income tax with­out mak­ing “polite” war on the cit­i­zenry.  There is no nice way to part some­one from what they’ve cul­ti­vated through effort and intel­li­gence.  You have to take it from them, and if they resist, you have to imprison or kill them.  Peo­ple want to hear these things expressed in terms of ideals, but up close, it doesn’t work that way.

Still, if it weren’t for the state, we would soon find our­selves in a Hobbe­sian night­mare of end­less strife.

It is in jus­tice that the order­ing of soci­ety is cen­tered.  Aris­to­tle

The entire uni­verse is a power sys­tem. In any dynamic, whether mechan­i­cal or psy­chic, there is an exchange of energy.  In inti­mate rela­tion­ships there is sex­ual power, emo­tional power, finan­cial power, even psy­cho­log­i­cal power — unless the two per­sons are excep­tion­ally evolved. Even kind­ness can be used to manip­u­late the other. Some­times one party is an extremely secure per­son, the other is not, and so on.  Always there is con­flict in human rela­tion­ships.  The best rela­tion­ships are the ones where each party pulls his or her own weight and respects the other per­son with­out resort to guilt, or fear.  It is by this mech­a­nism that our per­son­al­i­ties and our char­ac­ter evolve.

Almost all the world’s prob­lems can be traced to the improper exer­cise of power.  The pur­pose of foren­sics in the law is to shape the per­son­al­ity so that it gives expres­sion to the prin­ci­ple of pro­por­tion, which could be defined as the “cir­cum­scribed appli­ca­tion of force.”  True matu­rity in the law and in pol­i­tics con­sists of get­ting the per­son­al­ity out of the way.

There is no human being who can­not fall prey to greed or evil.  It takes a tremen­dous amount of work to free your­self from dis­torted attach­ments to the power dynamic. Most of us prac­tice power rit­u­als we believe are unique and use­ful but which are, in fact, prim­i­tive force plas­tered over with a Smi­ley Face.  In the final run, Death is the Joker that forces us all to let go of all our delusions.

The law is rea­son, free from pas­sion.  Aris­to­tle

Over time, the force of per­son­al­ity is con­cen­trated by respon­si­bil­ity, whereas eva­sion of respon­si­bil­ity weak­ens its force, which is why I’ve told the pros­e­cu­tors I’ve trained that you can­not achieve jus­tice with polit­i­cal ide­ol­ogy or per­sonal pref­er­ence because when you do that, you are impos­ing your per­son­al­ity upon other peo­ple which is — to use the old-fashioned term — tyranny.  To apply force justly upon oth­ers, your will must be guided by prin­ci­ple.  It takes an uncom­monly evolved per­son­al­ity to under­stand how quickly prin­ci­ple can be dis­torted by greed, pet­ti­ness and cru­elty, whether open, or concealed.

Therein lies the pri­mary issue of power: whether its appli­ca­tion is con­scious or uncon­scious, prin­ci­pled or tyran­ni­cal.  It is the same for all human beings, in all cir­cum­stances. You can only dis­en­gage from manip­u­la­tion if there is a con­scious effort to cul­ti­vate a ster­ling char­ac­ter for­ti­fied by solid prin­ci­ple — or the pain of adver­sity forces you to let go.

In my 15 years as a pros­e­cu­tor, I actu­ally got to know, and exer­cise, power, albeit at mod­est lev­els. In the next install­ment, we’ll con­tinue with real life sto­ries of pros­e­cu­tion, and how I learned to observe the State in action.

Or, more prop­erly, how I learned to exer­cise power.

Wel­come to my world.

Books by Bruce Han­ify at Smash­words
Bruce Han­ify 2010 All Rights Reserved

The Education of a Maverick Prosecutor, Part II: Isolation

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by Bruce Han­ify

The sin­ful­ness of crime might be described as an unjust appli­ca­tion of power, and the “cry of dis­tress” that fol­lows. A crime is a crime because it leaps the fence of per­sonal space and takes what hasn’t been earned.  This is true not just of those indi­vid­u­als soci­ety labels as “crim­i­nal”, but also of most politi­cians, quite a few mar­riages, and per­haps all employ­ment rela­tion­ships.  A per­sis­tent flaw in human nature is to try to scalp what hasn’t been earned, which is why we say that those who have evolved beyond such things have “char­ac­ter.”  They have mas­tered the arts of self-control.  It’s not until we are chal­lenged by pow­er­ful events — or per­haps even a pow­er­ful per­son — that we are forced to mea­sure our per­sonal use of power and begin to reckon whether our char­ac­ter is in proper work­ing order.

Peo­ple like to tell me, “You just see the world that way because of the work you do!” This is whistling past the grave­yard, a tal­is­man that keeps the bogey away, I’m sure, but it’s also a touch dehu­man­iz­ing. Think of it this way: peo­ple inside the med­ical field observe what folks do to their bod­ies. We inside the crim­i­nal jus­tice sys­tem observe what folks do to their souls. The rea­son peo­ple can’t address that is sim­ple: they don’t want to. We lawyers remind peo­ple of the moral and spir­i­tual real­i­ties they don’t want to face. The more some­one hates lawyers, the less they want to talk about what’s real. It’s the law.

High Priests? A freshly minted lawyer, talk­ing to me my last sum­mer before law school, passed on some­thing I never for­got: “If noth­ing else, law school teaches you how to think.” Of course that is not true in many cases — I have known my share of dun­der­headed lawyers — but there is cer­tainly truth to it. The law school process, if prop­erly con­ducted, forces you to divorce your ego from from the facts, from prior assump­tions, from your cher­ished opin­ions. An unan­swered legal ques­tion doesn’t care if you’re Repub­li­can or Demo­c­rat, Bap­tist or Catholic. You learn to tan­gle with the mer­its of an idea, not hold your expec­ta­tions hostage to one out­come or another. The best lawyers are often iso­lated from the com­mon run of human­ity, because the com­mon run of human­ity asso­ciates truth with pas­sion.  Lawyers learn how to dis­man­tle pas­sion and exam­ine the mer­its of the idea.  Bill Clin­ton called it ‘com­part­men­tal­iz­ing.’  Bril­liant.  And very true.

I don’t know how many peo­ple truly appre­ci­ate what lawyers do. The truth is, our func­tions as lawyers are priestly.  Lawyers are con­di­tioned to keep con­fi­dences; forced to per­form duties in areas of fear and degra­da­tion that other peo­ple would flee; develop skills of problem-solving that defy ordi­nary under­stand­ing. My early years as a deputy pros­e­cu­tor were a hot house that forced me to grow in ways I would have oth­er­wise never under­stood. You learn to keep your cool under the most demand­ing cir­cum­stances.  Just the facts, ma’am.

One of the ear­li­est things you must accept as a pros­e­cu­tor is that there’s nobody to talk to. Lawyers talk to other lawyers about their cases; they talk to cops; they talk to peo­ple inside the sys­tem. But your friends and the peo­ple in your fam­ily have no idea what trial attor­neys actu­ally do — the stress, the uncer­tainty, the con­stant push­ing of self past the last default posi­tion you thought was the extreme — even if they think they do from watch­ing tv. And attor­neys tend to talk about their cases, not yours. Most of us don’t — actu­ally, can’t — talk about the mis­treat­ment we daily receive from mem­bers of the pub­lic.  We learn to joke about it.  We very sel­dom receive praise; and the crit­i­cisms are, by and large, cliches that are mocked behind closed doors.  The mock­ing masks a lot of pain, and that pain, over the long run, is what builds skill.

To be a lawyer means to be out­cast, more often than not.  The sum­mer before I went to law school I made an appoint­ment with a doctor’s office for a phys­i­cal, to com­ply with uni­ver­sity require­ments. In response to the nurse’s ques­tions, I inno­cently men­tioned that I was going to law school. She frowned, made a note, and left the exam­i­na­tion room. Next thing I know, I’m get­ting a cat scan. That was the start of my edu­ca­tion: the mere whis­per of the word lawyer changes the weather in a doctor’s office, and that was 30 years ago.

When you say “There are too many lawyers in this coun­try” you are describ­ing a symp­tom, not a cause.  The cor­rect diag­no­sis is, “There are too many peo­ple in this coun­try who are unwill­ing to hon­estly take respon­si­bil­ity for them­selves.”  Lawyers are forced to step into that space where peo­ple abdi­cate per­sonal respon­si­bil­ity.  That’s what lawyers do.

Many peo­ple dis­agree with this state­ment, but think it through: the more self-sufficient you are in your deci­sions, in your actions, the less exter­nal author­ity is required.

Reg­u­lar peo­ple have never spent a rest­less, sleep­less night, roil­ing in the sweat of their anx­i­ety, the night before a trial.  They do not know about the fever­ish dreams, the doubt, the mani­a­cal rep­e­ti­tions of ques­tions, and answers, that roll through the night.  I have walked into court know­ing that I owed money, or know­ing that a girl­friend was break­ing things off with me, or know­ing that some­one was angry with me, and had to give that case all that I had.  Do peo­ple really know what goes into try­ing a case?  A lot of really great artists would give up their dreams at that point, but the indomitable trial lawyer con­tin­ues to slog his way through enemy ter­ri­tory.  Win, lose or draw, he or she is among the tough­est breed of human being ever made.

And then there is the dam­age done to the fab­ric of one’s soul .… .

My first two weeks at the prosecutor’s office, I learned a les­son I never for­got. Uncer­tain what to do with myself one after­noon, I wan­dered into an office and casu­ally picked up a hand­ful of pho­tos, turned them over and dis­cov­ered they were autopsy pho­tos of a six-week old baby, burned with cig­a­rettes, and beaten, method­i­cally, by his mother and her boyfriend over the course of his short, nasty, brutish life. There were other pic­tures, other reports, as the weeks went by. There were busted eyes, swollen vagi­nas, pro­trud­ing bones, carrion-riddled bod­ies. Drugs. Insan­ity. Death. The lit­tle dead boy, bat­tered and burned, remains in my mind to this day. Note to self: don’t look at pic­tures.  To this day I expertly fil­ter out infor­ma­tion that doesn’t con­cern me.  I don’t watch law shows.

I had a tal­ent for crim­i­nal stuff. Can’t tell you why, exactly. I just did. The cops loved me. “Han­ify smiles when he gigs ‘em”, they joked. I was just a grunt, but I was a grunt with style. My abil­ity to inflict pain became razor sharp. I made it per­sonal. Like col­lect­ing scalps.

It didn’t occur to me that I might be get­ting sick. Sick? The whole world was sick, chump. Don’t tell me what’s sick. Sick is hav­ing some idea of the suf­fer­ing that goes on in this world and shov­ing it from your mind so that you don’t have to deal with it. That’s sick. Sick is know­ing your teen is fill­ing his mind with garbage and call­ing it “cul­ture.”  That’s sick.

Inside the crim­i­nal jus­tice sys­tem, those anom­alous shapes and dif­fi­cul­ties get worked through a mas­sive fac­tory press that pro­duces still fur­ther anom­alies.  Uni­for­mity of result is never a part of the process, but wis­dom, even­tu­ally, is.

Books by Bruce Han­ify at Smash­words
Bruce Han­ify 2010 All Rights Reserved

The Education of a Maverick Prosecutor, Part III: Combat

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by Bruce Han­ify  Seat your­self at a large wooden table, a dinged-up relic from the mid-1960s. Before you sits 60 to 80 files, which you learn to han­dle the way a short order cook han­dles burg­ers. Some of them have been hang­ing around since before your time and give off a dis­tinct odor.  Your court cal­en­dar has 60 to 70 defen­dants’ names on it. Most of the entries are pre­tri­als that can be han­dled in a few sec­onds, but then come the motions that need be argued and, at the end of the cal­en­dar, maybe 3 to 4 bench tri­als. The cops sit in the back row, bored, frus­trated, angry — count­ing their over­time, maybe, or hat­ing you, if it’s their day off, or maybe just because they hate you. You are play­ing the key­board of Jus­tice; many in your audi­ence hear only the sour notes.  Cat­calls and boos are expected.

Behind you sits a room­ful of crim­i­nal defen­dants, their friends and fam­ily. The bulk of them want to see “the man” — uh, that would be you, poo­dle — eat it.  Maybe the judge decides this is the right moment to play “whip the pros­e­cu­tor.” On the slight­est pre­tense, he finds some­thing to nit­pick — some­thing entirely irrel­e­vant, mind you. His nit­pick­ing is con­sciously inac­cu­rate, designed to dimin­ish you and enlarge him. He gets appre­cia­tive tit­ters from an audi­ence that can’t vote. Oh ha ha! A laugh at the prosecutor’s expense.

Breaks the day up.

The Sys­tem doesn’t have a brain, only a stom­ach. There’s a guy who told the truth about a hunt­ing vio­la­tion who got hit with the entire fine and sus­pended jail time for telling the truth, whereas the mother-son check schemers walk out the door because the sub­poe­naed bank wit­ness doesn’t bother to show up, and the judge dis­missed the case.  I turn around to watch the kid check-writer mouth “f _ _ _ you” to me as he leaves.  He and his mother will be laugh­ing when they hit the curb. Have to remem­ber to send that kid a valen­tine next spring.

You get through your 40 to 50 pre­tri­als and pro­ba­tion vio­la­tions.  Now it’s on to the motions. The troop­ers, deputies and offi­cers in the back row have been grum­bling, and rest­less. Well, some of them. The lazier ones who don’t like to work, but like the over­time, are con­tent. You might get a call from a sergeant later: “God­damnit, I don’t want to pay overtime!”

Yeah yeah.

Two sup­pres­sions went okay; the judge sup­presses the third. I dis­miss that case. On to the bench trials.

The monkey-man in the wife-beater grins through mot­tled teeth while he scratches his pits from the wit­ness stand. He makes a weird mon­key sound when he grins and has an odd habit of scratch­ing at his pits, like .… you know. A mon­key. He tells his side of the story through a perma-fried grin. Yeah, I saw the crip­pled woman beat the hell out of Joe. Sure, Joe is big and mean and lazy as a cut dog, but on this par­tic­u­lar day he was all vic­tim! Poor Joe didn’t stand a chance!

The crip­pled woman is con­victed. Can’t have peo­ple her that on the street! Peo­ple like mon­key man deserve to feel safe, too, you know. The law is blind to clothes and body odor. And brains.

Well, and some­times blind to truth, but that doesn’t matter.

I hug my files to my chest and leave the court­room, four new con­vic­tions to forget.

Back to the bunker, with its sur­plus desk and tired, beige phone, cracked and smudged with black stains.  Back to the other grunts who have the same dark humor I do.  We crank out rounds of sar­casm and deri­sion while clos­ing out files and mak­ing notes before going home.

Come 5:30 I’ll go home to a dark house and watch Clint East­wood movies.  By the time I lay down, this day will no longer be.

But tomor­row?  Promises more of the same.

Books by Bruce Han­ify at Smash­words
Bruce Han­ify 2010 All Rights Reserved

The Education of a Maverick Prosecutor, Part IV: Darkness

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by Bruce Han­ify  I can’t point to a day on the cal­en­dar, but I know it hap­pened, because one day I looked around and saw it.

My cur­tains were closed; the lights were low. I hadn’t had any­one over to the house for prob­a­bly six months. The sighs of the dead heaved across the dimly-lit nether world I now inhab­ited.  Hell had seized my heart and silenced my tongue. The winds of mad­ness drove upon my shat­tered gate. I looked around the dark­ness. When had it hap­pened? Had there been a spe­cific day?

It wasn’t a day, but a thing. There was the elderly cou­ple stabbed to death by two teens who knocked at their door just as they sat down for din­ner. The frail lit­tle cou­ple — farm­ers, born in that same Amer­ica my par­ents knew — died dur­ing din­ner. The woman had got­ten up from the table to answer the door. It was the last thing she ever did. In death she wore a look of res­ig­na­tion and sor­row.  Her brave, devoted hus­band had put up quite a fight. Of course, it was one of the chil­dren — their middle-aged son — who had to find his par­ents this way. Where do you go with that horror?

Some­time after that I brought home the movie Con­sent­ing Adults. Wow! Great erotic opener! Two sexy cou­ples get­ting to know each other, a pow­er­fully erotic scene that left you wondering:

Would they?

And then came the next scene. Eddy Otis kills his wife, Kay, by club­bing her to death. I turned off the tele­vi­sion and wept. I wept hot tears, but my heart was cold as ice. I pretty much quit watch­ing movies after that. Plato’s Repub­lic stands unre­solved: there are cor­ro­sive souls who cor­rode oth­ers. Hol­ly­wood is a mag­net for the spir­i­tu­ally maligned.

The straw that broke me was the fam­ily of four killed in Out­look. The elected pros­e­cu­tor and a senior deputy tried the case, but I, who han­dled the felony appeals by then and was con­sulted on pro­ce­dural mat­ters, was famil­iar with all the facts, and even­tu­ally inher­ited the appeal.  That case proved more than I could bear, though I yet live.  I was plunged into dark seas with­out a map or com­pass. It would be some­time before I crawled ashore, a weather-beaten, mis­er­able rat.

But I sur­vived, and became some­one entirely dif­fer­ent from who I had been before.

Books by Bruce Han­ify at Smash­words
Bruce Han­ify 2010 All Rights Reserved

The Education of a Maverick Prosecutor, Part V: JUSTICE

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by Bruce Han­ify

Kill ‘em All, Let God Sort ‘em Out. I wan­dered in dark­ness for 3? 4? years. I don’t remem­ber. I wore the mask; tied the ties; occa­sion­ally pol­ished the shoes, and always I car­ried the grav­ity of the state in my bear­ing which, from many years prac­tice — not to men­tion a nat­ural pre­dis­po­si­tion — I did quite well. I spoke the pros­e­cu­tor mantras and, ring­ing in tune with the author­i­tar­ian notes that sound through­out the choir of gov­ern­ment, obtained con­vic­tions.  My soul wan­dered in realms of shadow while the wheels of jus­tice spun out bones and bits of flesh. Per­haps I excelled in my duty and harmed no one. Only God knows. I don’t. I was lost in darkness.

After 9 years of felony pros­e­cu­tion, an oppor­tu­nity pre­sented itself for me to super­vise the dis­trict court unit. On many occa­sions I had dreamed of going down­stairs to super­vise the dis­trict court pros­e­cu­tors, where I had started out.  The fate of young lawyers in that raw infantry unit never failed to inter­est me. Here was a chance to do some good!

I had no idea what was in store for me.  When last I had been in dis­trict court, I was a 31-year-old kid pros­e­cu­tor mak­ing his way around. What I now saw hor­ri­fied me: sin­gle moth­ers who couldn’t pay tick­ets, whose licenses were sus­pended by face­less bureau­crats in Olympia, went to jail for it; par­ents whose chil­dren were mur­dered, or who com­mit­ted sui­cide, were pun­ished when it was clear that they were suf­fer­ing from men­tal ill­ness, not crim­i­nal intent; peo­ple whose lives were tor­mented by obses­sion, pos­ses­sion, despair, dis­trust, finan­cial inse­cu­rity, whose actions betrayed panic, not design, were tor­mented and ridiculed by a sys­tem that did not want to see their suffering.

Who was I to con­demn them? What was I?

I super­vised four deputy pros­e­cu­tors and a mod­est staff. With 5,170 dis­trict court crim­i­nal fil­ings in 1999, that meant each of us han­dled 1034 cases per year — 86 per month. Con­trary to the pub­lic protes­ta­tions against evil plea bar­gains, it is phys­i­cally impos­si­ble to resolve these num­bers by trial. Unfor­tu­nately, most peo­ple inside the sys­tem never explain these details to a gullible pub­lic who want to find fault with any­one they sus­pect is cod­dling crim­i­nals, but refuses to hold police and pros­e­cu­tors account­able for their stake in the cir­cus. Believe me, elected offi­cials use this wall to their advan­tage. It is the rare elected pros­e­cu­tor who tells it like it is. If he or she did, they wouldn’t get elected. The pub­lic demands illu­sion; the politi­cians gladly give it to them. Who is at fault: the pub­lic who can’t han­dle the truth, or the politi­cians that strum their lit­tle ban­jos for votes?

The num­bers jam­ming the crim­i­nal jus­tice sys­tem have been ris­ing in absolute terms since the early sev­en­ties. When my boss, Jeff Sul­li­van, was first elected pros­e­cu­tor in Yakima, he might actu­ally try a mar­i­juana case. That would have been a laugh­able propo­si­tion by 1990. What peo­ple went to jail for in, say, 1978 — even 1992 — would be incon­ceiv­able now. Thank God for mature, expe­ri­enced lawyers in these volatile conditions.

There were (and still are, I pre­sume) four dis­trict court court­rooms in Yakima County. At that time there were three elected judges, plus one com­mis­sioner. Under max­i­mum stress to the sys­tem, to jurors, and to the attor­neys, it was the­o­ret­i­cally pos­si­ble to try 3 cases per week, for 52 weeks (includ­ing hol­i­days, in our exam­ple) — a total of 156 cases per year. That would also mean that the entire civil prac­tice for dis­trict court would be put on hold to make way for get­ting tough on crime. The 156 cases that the­o­ret­i­cally could be tried, under opti­mum con­di­tions, rep­re­sented only 3% of the total crim­i­nal fil­ings and would likely neces­si­tate emer­gency assis­tance from the governor’s office to main­tain pub­lic order. Any­thing over 3% would break the machine.

I may have been the only deputy pros­e­cu­tor in that line of work who both­ered to look at the num­bers and try to design a sys­tem that effec­tively elim­i­nated the cases that would never go to trial. I devised a sys­tem that I hoped would reduce the sched­uled tri­als from 70 to, say, 10, the ben­e­fit being that the cases which needed to be lit­i­gated, could be. How to do that?

First to go were the Dri­ving While Sus­pended (DWLS) cases. Unbe­knownst to me, Spokane County was at that very moment in the process of adopt­ing a “diver­sion” pro­gram for its  license offend­ers. We devised our own “diver­sion” pro­gram. We gen­er­ously con­tin­ued cases out to give the per­son a chance to get re-licensed. If they came back with a license, we dis­missed the case. I told my crew I didn’t want to see any DWLS cases on my trial cal­en­dar. If there was one there, it best be for a good reason.

I also lighted upon a plan of sin­gling out the indi­vid­u­als who, by their actions and their his­to­ries, deserved con­dem­na­tion, while attempt­ing to fer­ret out the many lost souls who stum­ble into the sys­tem every day of the week. I adopted two sim­ple rules, which I passed on to my crew:

1) If some­one makes it to 40 or 45 years of age and has no crim­i­nal his­tory, assume they are good peo­ple hav­ing a bad time; and

2) Try to resolve “chippy” cases as fast as you can (with­out sac­ri­fic­ing too much).  Get them off my trial cal­en­dar, I told them.

What I dis­cov­ered was, the ABA injunc­tion to “seek jus­tice” was incom­pat­i­ble with the momen­tum of a sys­tem that could or would not check itself. Only a human can apply the brakes to a sys­tem, but what if the humans shrink from that respon­si­bil­ity? When I tried, I was pun­ished. Oh, not for­mally, of course. I was under­mined by those too uncom­fort­able in their own skins to accept indi­vid­ual judg­ment. The Amer­ica I had grown up in — of men step­ping up to the plate with­out all the fancy talk — had been replaced by bureau­cratic machinery.

I got into a run­ning bat­tle with a judge who wanted to know why I was dis­miss­ing cer­tain cases. Either he could not grasp that the exec­u­tive branch was sep­a­rate from the judi­cial branch or — as I believe — he sim­ply could not tol­er­ate it. Take the hot topic of domes­tic vio­lence. Because of leg­is­la­tion prompted by activists, police offi­cers are required by statute to make arrests in domes­tic vio­lence cases on prob­a­ble cause alone. They lack dis­cre­tion to do oth­er­wise, if they can locate the Perp within four hours of the inci­dent. Think of that: if you’re a defense attor­ney try­ing to save your client, it may well come out at trial that your client had been arrested. Arrested because he was guilty of a crime?

No. Arrested because the law required it.

Johnny Cash — Soli­tary Man

I got a call from a sergeant friend late one night. He was at a farm house where a 70-something alco­holic woman was drunk and out of con­trol. The hus­band called the police out of des­per­a­tion.  My sergeant friend by-passed the on-call pros­e­cu­tor and called me, instead. Do I have to make this arrest, he pleaded?

No, I replied. We had both inten­tion­ally — and quite hon­or­ably — vio­lated RCW 10.31.100 and we did it with mis­chief afore­thought. We refused to put cuffs on a 70-something-year-old woman when her hus­band sim­ply called the police for help. The kindly sergeant also failed to take her to the hos­pi­tal for a forced detox. He put his job on the line by being kind. We both did. Look­ing back, some of my finest moments as a pros­e­cu­tor occurred when I dis­obeyed the law. There were many more after that.

The report came to my desk the next day. I called the husband.

“What do you want to see happen?”

“What do you mean?”

“Do you want me to pros­e­cute your wife into treat­ment, or do you want to han­dle it.”

“I’ll han­dle it.”

So I drafted a dis­missal order and took it to the judge, who called my boss to com­plain. My boss called me to inform me of the judge’s posi­tion: from this day for­ward motions to dis­miss were to be accom­pa­nied by an affi­davit jus­ti­fy­ing the basis for dis­missal.  He was not going to per­mit any­one else to make deci­sions.   I refused to bow to a sep­a­rate branch of gov­ern­ment.  My gen­uine edu­ca­tion had began.

This par­tic­u­lar judge, whom I had known when he still was a mis­de­meanor defense attor­ney, did not know what to expect when a battle-fatigued felony attor­ney showed up as the unit super­vi­sor. When last we were equals, I was in the per­sonal injury busi­ness; he defended drunks. Now he was a judge, and I was a sea­soned pros­e­cu­tor. Nei­ther of us could have pre­dicted the war that would fol­low between the exec­u­tive and judi­cial branches on the sec­ond floor of the Yakima County cour­t­house. My sub­se­quent bat­tle with him clar­i­fied a num­ber of crit­i­cal fea­tures of my life and would, indi­rectly, lead to that par­tic­u­lar judge los­ing his next elec­tion. In that caul­dron of ‘con­form or suf­fer’, a mav­er­ick was born.

One day I real­ized, as I watched the ego on the bench sneer and twirl in all his glory, that I would likely trust at least half the defen­dants in that room more than I did that judge. It hit me hard, as if I was com­ing out of a night­mare, that I saw hun­dreds of peo­ple every year who were bet­ter peo­ple, harder work­ers, kinder, bet­ter souls than the per­sons impos­ing judg­ment. It was a chill­ing realization.

One day I looked up from the arraign­ment table to see a cute wait­ress I saw every Thurs­day. There she was. She was get­ting arraigned for dri­ving while license sus­pended.  Vio­lat­ing the rules of ethics, I asked her in open court how much she owed.

“$700″

“How long will you need to pay it off.”

She looked stunned, but fur­rowed her brow.

“Three .… months?”

“Come back in three months with a license, and I’ll dis­miss the case.”

Bil­lows of indig­na­tion issued from Mt. Wor­ship Me.

When next the wait­ress was on the cal­en­dar, I advised the pros­e­cu­tor who was han­dling the cal­en­dar to make sure the wait­ress had a chance to get her license and, if she had one, to dis­miss the case. My attor­ney didn’t look impressed, but she promised she would. It was maybe an hour later I heard a soft knock at the door. It was the wait­ress. She was crying.

“He gave me 10 days in jail. I’m going to be in jail on Thanks­giv­ing. I’m get­ting mar­ried that week. Our hon­ey­moon is in Canada.”

She was sobbing.

I was able to piece together that she had pled guilty, prob­a­bly think­ing she had no choice. I was pos­i­tive there was a wide grin on the nice judge’s face when he gave her the 10 days in jail, plus a bar­rel full of new fines. Per­haps she tried to explain about want­ing to take her Hon­ey­moon in Canada. If so, she just fed his gluttony.

Worst part?

With tear soaked, trem­bling hand she showed me her newly-minted license.

“Sit here”, I instructed, point­ing to the bench in the hall­way. I dis­ap­peared into the bunker and went to work on the keyboard.

A notice of appeal; a state­ment of arrange­ments. After get­ting her sig­na­tures to the doc­u­ments, I made copies and told the wait­ress to sit tight while I went to the clerk’s and filed a notice of appeal. I went back to where the wait­ress was seated and told her to come back in a week.

One of Yakima’s strongest supe­rior court judges was Michael Leav­itt, a Mor­mon, now deceased. I took “her” appeal into Mike’s cham­bers and laid it out. There was a lit­tle war going on down­stairs, in dis­trict court, I explained. If he signed the order dis­miss­ing the case, he was step­ping into a war that didn’t involve him at all.

He stud­ied me through his glasses.

“I made her a promise, and I’m going to keep it.”

With a dis­be­liev­ing, and bemused, purse of the lips, he signed the order dis­miss­ing the case. I gave copies to the wait­ress when she came back. I wished her a happy wed­ding. She really was a nice kid.

I was no longer a prosecutor.

Bruce Han­ify 2010 All Rights Reserved

Rolling Stones, Sym­pa­thy For the Devil

The Education of a Maverick Prosecutor, Part VI: Compassion

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by Bruce Han­ify  Things changed for me as a result of being put into “the bucket” — the Invol­un­tary Treat­ment Act (“ITA”) hear­ings at the Memo­r­ial psy­chi­atric unit in Yakima.  Each of us pros­e­cu­tors in that rota­tion were there for a month at a time, twice a year.  With two “men­tal” hear­ings every week, that meant you were at the hos­pi­tal by 8 a.m. eight times a month.  Dur­ing that time I became famil­iar with the face of men­tal ill­ness.  How that affected me I could not have foreseen.

It grad­u­ally dawned on me that many decent human beings are trapped in some sort of rep­e­ti­tious chem­istry pat­tern from which they can’t escape.  I’ve heard crim­i­nal defen­dants say, “Your Honor! This isn’t me!”  And from my con­di­tion­ing, and my own prej­u­dice, I assumed they were mak­ing excuses.  My rota­tion through the ITA hear­ings taught me oth­er­wise.  What I finally saw was that there is this kind of sta­tic, or white noise, that oper­ates like an Atten­tion Deficit Dis­or­der in many peo­ple.  It’s like they can’t get their lit­tle mar­ble to roll down the same track every day.  Peo­ple who don’t overeat assume peo­ple who do are weak; peo­ple who per­form sim­i­lar func­tions every day assume those who can’t are moral fee­blings.  The fact is, depres­sion, overeat­ing and, in many cases, crim­i­nal con­duct, are func­tions of brain chemistry. But we don’t dis­cuss brain chem­istry. We thump peo­ple. Then we won­der why they don’t get fixed.

The dra­matic exam­ples are per­haps less instruc­tive.  I saw a lit­tle fel­low so far out of con­trol that it took three big lugs to throw him to the floor and strap him to a board.  Two days later, after the meds kicked in, he was a lucid and very intel­li­gent — and very charm­ing — fel­low.  His mother was a long-time edu­ca­tor, a Ph.D.  There was no short­age of intel­li­gence in that fam­ily!  What I learned from sev­eral of the psy­chi­a­trists was that fre­quently very intel­li­gent peo­ple are also not very sta­ble men­tally.  It goes with the turf.  Sev­eral psy­chi­a­trists have told me, for exam­ple, that you can’t have bi-polar dis­or­der unless you have a fairly impres­sive IQ.  One psy­chi­a­trist put it bluntly: “Stu­pid peo­ple don’t go bipolar.”

But the truly trou­bling cases are those folks who wan­der in and out of society’s insti­tu­tions with ghostly anonymity.  Their lives never gel.  They live with fear and anx­i­ety and con­flict, all of which com­pound one another over the years, a thick layer of scar tis­sue that suf­fo­cates the life from them.  After God knows how many tours through jails and men­tal hos­pi­tals, their self-image is shat­tered; and no mat­ter how much peo­ple put on the face of com­pas­sion, deep down these folks know them­selves as rejects.  They don’t really believe any­one is there to help them; they’ve stopped believ­ing any­one can.

It is truly aston­ish­ing how many peo­ple in the men­tal health pro­fes­sions don’t seem to have any gen­uine insight into suf­fer­ing.  The sys­tem is loaded with psy­chol­o­gists who believe they’re per­form­ing heal­ing func­tions when they say things like ‘cog­ni­tive’ or ‘behav­ioral’ while adopt­ing the most intel­lec­tual expres­sion they can muster.   It takes a rough and tum­ble Irish-American like myself to see it.  I some­times joked, “The Irish are born bipo­lar.”  Those of us who have felt the sting of lonely anguish have a gen­uine con­nec­tion with those who cry out, “Your Honor! This isn’t me!”  The prob­lem is, see­ing that and doing some­thing about it are two very dif­fer­ent things.

Bureau­cra­cies are not geared to address that very human side of things, which is a bit ironic when you think of it.  If gov­ern­ment funds can’t sus­tain an effec­tive heal­ing sys­tem for the men­tally ill, what would?  That’s a legit­i­mate ques­tion, to which there is no ready answer.  Most Amer­i­cans lazily assume that once the gov­ern­ment has spent money, the prob­lem is solved.  When you and I slough off our cre­ative, problem-solving pow­ers to an abstrac­tion, we really haven’t done any­thing except evade the issue.  I would describe that iner­tia as typ­i­cal of how we gov­ern our­selves in Amer­ica.  Cre­ativ­ity is local; gov­ern­ment is abstract.  Want to solve prob­lems?  Get in there and go to work.

A reader asked the other day, “Do you really believe that we have lawyers because peo­ple won’t accept respon­si­bil­ity?”  She then observed that when peo­ple try to argue their own cases in court, they are shut out.  This posi­tion has two prob­lems.  First, it assumes that ordi­nary peo­ple typ­i­cally make ratio­nal argu­ments, which isn’t true.  Peo­ple make emo­tional, not ratio­nal, argu­ments.  If it were oth­er­wise, this coun­try would be a very dif­fer­ent place.  The sec­ond prob­lem is that she missed my point. If your life can only be resolved in the court­room, you are not tak­ing respon­si­bil­ity for it.

As a result of my tour through the men­tal health sys­tem, I con­cluded that we are bar­bar­ians when it comes to address­ing human suf­fer­ing.  We really don’t know what we’re doing.

And no, I don’t have an imme­di­ate answer.  One thing I do know is, Amer­i­can soci­ety would be wealth­ier and more peace­ful if peo­ple were encour­aged to pull their own weight with­out resort­ing to blame, whether penal blame, polit­i­cal blame, or any other kind of blame.  Blame doesn’t heal.  Respon­si­bil­ity does.

How to do that?  Do you have any ideas?

ALL RIGHTS RESERVED BRUCE HANIFY 2012