Tag Archives: Maverick Prosecutor

Clallam County Age Discrimination Case Settled for $1.6 Million

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May 22, 2012, by Bruce Han­ify  Three for­mer Clal­lam County employ­ees and the daugh­ter of one for­mer employee have accepted a $1.6 mil­lion set­tle­ment in an age dis­crim­i­na­tion suit for dam­ages they suf­fered as employ­ees of the Clal­lam County Pros­e­cut­ing Attorney’s Office in Port Ange­les, WA. Deb­o­rah Kelly is the elected pros­e­cu­tor of Clal­lam County.

The for­mer employ­ees included deputy pros­e­cu­tor Carol Case, legal assis­tant Kathy Nielsen, and admin­is­tra­tive assis­tant Elaine Sundt. Hol­lie Hut­ton, daugh­ter of for­mer employee Robin Porter, who was fired in Feb­ru­ary, 2007 and died within a year of her ter­mi­na­tion, appeared on behalf of her mother in the lawsuit.

In an 80-page plead­ing to the supe­rior court, attor­neys Stephanie Bloom­field and James Beck of Tacoma law firm Gor­don Thomas Hon­ey­well alleged a dis­turb­ing pat­tern of age dis­crim­i­na­tion that resulted in the fir­ing of Carol Case, Elaine Sundt and Robin Porter. Admin­is­tra­tive assis­tant Nielsen, who suf­fered severe phys­i­cal and emo­tional dis­tress brought on by work­place harass­ment, resigned under extreme duress. While only four indi­vid­u­als joined in the law­suit, there appeared to be an office pol­icy of sub­ject­ing older employ­ees to a cal­cu­lated pat­tern of Machi­avel­lian harass­ment, accord­ing to alle­ga­tions con­tained within the legal pleading.

The alle­ga­tions in the plead­ing, while not proven in a trial, appar­ently were suf­fi­ciently cred­i­ble to induce the county to set­tle the lawsuit.

In a press release issued by Gor­don Thomas Hon­ey­well, it was revealed that elected pros­e­cu­tor Deb Kelly admit­ted that her office suf­fered a turnover rate between 210 and 215%. How­ever, Kelly blamed the set­tle­ment on the legal system:

“This settle­ment was made by the excess insur­ance com­pany strictly for eco­nomic rea­sons,” Kelly said in a state­ment released Saturday.

“The county had no option for going for­ward on its own, short of hir­ing its own attor­neys and spend­ing hun­dreds of thou­sands of tax­payer dollars.

“If Wash­ing­ton were a loser-pays state, this law­suit would never have been filed.”

Going Younger The Clal­lam County Prosecutor’s cam­paign against her older work­ers com­menced when she appointed 30-something deputy pros­e­cu­tor Mark Nichols to the posi­tion of chief deputy, which one for­mer employee allegedly char­ac­ter­ized as “putting a five-year-old in charge of dyna­mite.” Kelly stated in a depo­si­tion that it did not mat­ter to her that Nichols, two to three years out of law school when she made him king, did not meet the job require­ments of hav­ing “exten­sive expe­ri­ence in munic­i­pal law.” Some might argue that his expe­ri­ence with prin­ci­ples of lead­er­ship shared a sim­i­lar depth.

Upon Nichols’ appoint­ment to that admin­is­tra­tive post, a cam­paign of “going younger” was waged against those unfor­tu­nate enough to have the capac­ity to exer­cise inde­pen­dent judg­ment. The cam­paign con­sisted first of harass­ing and intim­i­dat­ing older work­ers, then replac­ing them with younger work­ers — with the appar­ent inten­tion of chill­ing dis­sent. Both Kelly and Nichols were sur­pris­ingly can­did in their aim to replace those they regarded as obso­lete. Nichols told one employee:

“Look, Carol [Case] is an older gen­er­a­tion, or is older and she just doesn’t under­stand young peo­ple. Over the past year we’ve been try­ing to get younger peo­ple in the office.”

“Key­stone Nazis” One anony­mous source shared with this writer that for­mer mem­bers of the office secretly referred to the tac­tics Nichols and Kelly engaged in as befit­ting “Key­stone Nazis.” Exam­ples of their hos­tile work­place con­duct allegedly con­sisted of:

While pros­e­cu­tor Kelly used her county com­puter to shop eBay, employee Porter was fired for “inter­net use” within days of receiv­ing a work­place eval­u­a­tion that praised her work and dedica­tion. A num­ber of ques­tion­able dis­ci­pli­nary issues were lev­eled against Porter, who com­plained of being sin­gled out and treated unfairly. Sev­eral employ­ees agreed that Nichols was out to “get” her. Porter’s fir­ing estab­lished the pat­tern of cre­at­ing con­di­tions that couldn’t be met, so that the employee could then be fired.

After Porter was fired, Nichols then turned the tools of his Inqui­si­tion toward Nielsen. While Nielsen had been receiv­ing glow­ing work­place eval­u­a­tions, she was now being accused of insub­or­di­na­tion for con­sult­ing with her super­vis­ing attor­ney about office prob­lems. In one par­tic­u­larly chill­ing inci­dent, two younger employ­ees were invited to one of Nielsen’s dis­ci­pli­nary meet­ings, where they taunted her.

Insub­or­di­na­tion On Jan­u­ary 16, 2008, Robin Porter died. Employee Sundt com­mit­ted the sin of sit­ting at Porter’s memo­r­ial with three female employ­ees who were out of favor with Kelly, includ­ing Carol Case. Nichols com­menced a cam­paign of iso­lat­ing and ridi­cul­ing Ms. Sundt. In fact, at one dis­ci­pli­nary meet­ing, pros­e­cu­tor Kelly accused Sundt of “dis­loy­alty” for sit­ting with for­bid­den mem­bers of the office at Porter’s funeral.

At one point, Sundt con­sulted an attor­ney about her sit­u­a­tion, who mailed the prosecutor’s office alleg­ing age and gen­der dis­crim­i­na­tion. Within min­utes of being informed by Kelly of the let­ter, Nichols asked Kelly out for cof­fee, then emailed Sundt with a list of ques­tions about who she was spend­ing time with at the office, and who she was talk­ing to. In retal­i­a­tion for con­sult­ing with a lawyer about work­place hos­til­ity, Sundt was placed on admin­is­tra­tive leave. (Sundt suf­fered a heart attack while being deposed for this case.)

62-year-old attor­ney Carol Case was sent to a “fit­ness for duty exam” — nor­mally reserved for emer­gency per­son­nel only, never for attor­neys — for the crime of defend­ing her­self against false accu­sa­tions. Case was declared fit for duty, which didn’t fit in with the Going Younger pro­to­cols. Amaz­ingly, Case sur­vived a sus­tained cam­paign of emo­tional and men­tal tor­ment. Even­tu­ally she was fired. That was exactly the wrong thing to do. Case fought back. And won. Let it be said that this blog­ger believes she is the per­fect replace­ment for Mark Nichols.

Employ­ees who dared to con­front Nichols about the dou­ble stan­dard of sub­ject­ing older employ­ees to sur­veil­lance, taunt­ing, and being “set up” to be fired — while giv­ing a pass to younger employ­ees — were cer­tain to under­stand that their job was at risk. What is star­tling about this case is the num­ber of past and for­mer employ­ees who tes­ti­fied about the hos­tile work­place con­di­tions. Sev­eral cur­rent employ­ees demon­strated remark­able courage given the risks they faced.

As stated, none of these claims were fully tested in court, but the plain­tiffs had plenty of evi­dence to sup­port their cause — and Clal­lam County set­tled, which likely means they faced an even larger loss had they gone to trial.

In their press release, Gor­don Thomas Hon­ey­well wrote:

“The sub­stan­tial amount of money paid out to these women should serve as a reminder that no one is above the law, even an elected pros­e­cu­tor” stated James Beck. “Once Kelly and Nichols were made aware of the dis­crim­i­na­tion claims, instead of putting a stop to it and treat­ing peo­ple fairly, they chose to retal­i­ate. These four women brought this law­suit to take back their good names, and with the hope that it might pre­vent Kelly and Nichols from engag­ing in sim­i­lar con­duct in the future.”

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May 23, 2012  The Sequim Gazette reported today:

Kelly said the issues in the office were never about age dis­crim­i­na­tion, dis­abil­ity or retal­i­a­tion but rather a power struggle.

She said she and Nichols take com­plaints of harass­ment and dis­crim­i­na­tion very seriously.

Pat­ter­son said he absolutely believed Kelly and Nichols did the right things.

“They were hold­ing peo­ple account­able that were not held account­able pre­vi­ously,” he said.  Clal­lam County Set­tles $1.6 Mil­lion Age Dis­crim­i­na­tion Suit

FULL DISCLOSURE: I was employed as a deputy pros­e­cu­tor at Clal­lam County from Novem­ber, 2005 to Sep­tem­ber, 2006, but chose to leave because I found the work­ing unnec­es­sar­ily tense.  I am proud to say that I worked for one of the great pros­e­cut­ing attor­neys of this state, Jeff Sul­li­van.  Sul­li­van was an old school lawyer: prin­ci­ple before per­son­al­ity.  While I might have wanted to con­tinue pros­e­cut­ing in my home­town (I was born in Port Ange­les, and grad­u­ated from Forks High School), it was obvi­ous to me that the office was headed to some sort of con­fla­gra­tion.  Hav­ing read through Honeywell’s plead­ing, it is very clear that I made the right deci­sion.  I was appalled by what I read in that doc­u­ment.  It was far worse than I thought — in part because I left before it got any juicier.

Robin Porter was my sec­re­tary and a friend of mine.  She was a lovely per­son, with a vibrant sense of humor, and was quite tor­mented by the intim­i­da­tion she expe­ri­enced in that envi­ron­ment.  When I learned that she died, I felt very strongly that she died of a bro­ken heart — related to get­ting fired.  I still believe that.  Can’t prove it, but I believe it.  Let me say there are karmic oblig­a­tions beyond the finan­cial for those who enjoy tor­ment­ing fel­low beings.

Elaine, Carol, Kathy, Con­grat­u­la­tions.  Holly, I loved your mother as a friend.  I’m proud of you. This Bud’s on me.

OF INTEREST:  Three drug cases inves­ti­gated by the Olympic Penin­sula Nar­cotics Enforce­ment Team were dis­missed after Supe­rior Court Judge Ken Williams found the Prosecutor’s Office vio­lated court rules by not dis­clos­ing the iden­tity of its key wit­ness to the defense.  Drug Cases Dismissed

ALL RIGHTS RESERVED BRUCE HANIFY 2012

Define “Drug”: A Drug Warrior’s Thoughts on the 45-Year-Old War on Drugs (UPDATED)

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by Bruce Han­ify Here is the short answer to the War on Drugs: there is no short answer.  Whichever side you fall on this issue, you will be blinded by prej­u­dice.  Why?  Because if you sup­ply a yes or no answer, you will likely neglect one of two nec­es­sary prin­ci­ples at play in how law and gov­ern­ment work.  Which one you’re blind to tells me whether you’re for or against the legal­iza­tion of recre­ational drugs.

Before we get started, let me con­fess that I have been per­son­ally and pro­fes­sion­ally involved in the entire imbroglio of illicit drug use for what now seems like my entire life.  I pros­e­cuted drug cases for 15 years, and defended them for 10.  What fol­lows is an hon­est account of the bat­tle thus far, as I under­stand it.

Here are the two principles:

First, gov­ern­ment is force.  It is sheer lunacy to expect gov­ern­ment to work like a fine instru­ment in, say, the hands of a Leonardo.  Gov­ern­ment, ulti­mately, is about tak­ing your money and throw­ing you into jail — or worse.  And the big mys­tery about gov­ern­ment isn’t really such a mys­tery.  When and where and how peo­ple want gov­ern­ment to use force is an out­growth of cul­tural dynam­ics that are some­times dif­fi­cult to spot up close.  It usu­ally takes at least a cen­tury of sep­a­ra­tion before peo­ple can hon­estly assess what was going on in some spe­cific period.  And then there are those notable excep­tions, like the “War Between the States” and the Fall of Rome, where no two his­to­ri­ans have ever agreed on much of any­thing.  The War on Drugs is equally per­plex­ing.  When­ever these things are researched in detail, they fail to yield easy answers.

Gov­ern­ment does not solve prob­lems cre­atively.  Never has, never will.   What gov­ern­ment does is wipe out the com­pe­ti­tion.  Gov­ern­ment is not a nanny or an art teacher or your Aunt Rose.  It is the biggest, dullest boy on the block, and when you get in the way, it whomps you.  The ques­tions addressed by the Amer­i­can con­sti­tu­tion are never the legit­i­macy of force, but when, where and how force ought to be applied — and to what end.  Cre­ativ­ity can only occur when absolute free­dom of choice is allowed to oper­ate.  In the case of pol­i­tics and law, cre­ativ­ity is more an ado­les­cent indul­gence than an event we can all look for­ward to.  Hence, the first prin­ci­ple forces us to con­clude that no mat­ter which course of action we choose, it won’t be pretty.

The sec­ond prin­ci­ple peo­ple are likely to miss derives from the Equal Pro­tec­tion clause, found in the 14th Amend­ment — a major Civil War era mod­i­fi­ca­tion to the constitution:

.… No State shall .… . deny to any per­son within its juris­dic­tion the equal pro­tec­tion of the laws.

Put sim­ply, you can­not equally enforce laws unless there is a gen­eral social agree­ment about what it is you’re try­ing to do.  If you doubt how crit­i­cal this is, com­pare a mostly homoge­nous pop­u­la­tion like Japan’s to our het­ero­ge­neous nation.  A Japan­ese pretty much under­stands where he or she is, what’s going on, and what’s expected of him, whether he’s at a wed­ding, or in a court­room.  We don’t have much of that in the United States.  The first big ques­tion on the table is, then:

Define ‘drug.’

You can see the prob­lem imme­di­ately.  If you passed a drug law in Japan, chances are most Japan­ese would under­stand what the law intended.  Here it is not so clear.  What a drug is to a Chris­t­ian Sci­en­tist is not the same thing as a drug to your physi­cian, and so on.  It is extremely unlikely that we will ever have much agree­ment as to the fed­eral government’s proper role in the reg­u­la­tion of drugs because few of us could agree on what what is being reg­u­lated: meth, or aspirin?  Even my sub­ti­tle, “the 45-Year-Old War on Drugs”, is mean­ing­less.  Younger read­ers would think the War on Drugs began with Reagan’s coro­na­tion of it as such, but for old folks like myself it started in ’67, after Art Linkletter’s daugh­ter fell (?) out a win­dow and died; and for the Reefer Dudes it started in the 20s; and for the purist Lib­er­tar­ian types, it started with the  .… .

The Food and Drug Act, passed in 1906.  That gen­er­a­tion of peo­ple had wit­nessed one of the largest pop­u­la­tions of opium addicts ever seen in this coun­try.  Between opium-laced con­sumer prod­ucts and wounded Civil War vet­er­ans, the United States expe­ri­enced a wide­spread, chronic prob­lem with seri­ous drug addic­tion.  You could argue — many do — that noth­ing needed to be done, but if you put your­self in that time and think about peo­ple mak­ing money sell­ing dope-laden con­sumer prod­ucts to preg­nant women, you can under­stand why it seemed advis­able for the fed­eral gov­ern­ment to step in, i.e., poi­so­nous foods and poi­so­nous drugs are in the same cat­e­gory, socially speak­ing.  Aren’t they?

Con­sider: do you want to repeal the Food and Drug laws?  The first time someone’s baby dies from bad for­mula, we’re right back where we started.

The com­plex­i­ties mul­ti­ply expo­nen­tially.  You don’t have to be a rocket sci­en­tist to under­stand that relax­ing the fed­eral government’s cur­rent reach and finan­cial take might reju­ve­nate many tor­pid areas of our coun­try. When you look at the enor­mity of power and the finan­cial drain rep­re­sented by the fed­eral gov­ern­ment, you can say, “They should get out of drugs.”  But then someone’s baby dies, and every­one says, ‘Why doesn’t some­one stop them?’  That’s the real­ity of hav­ing a huge coun­try, a het­ero­ge­neous pop­u­la­tion, and a dis­tant, abstract, often dis­mally stu­pid national gov­ern­ment.  There is never going to be one easy answer because the answer will change with the ques­tion.  You can take that same obser­va­tion and apply it to any of the other thou­sands of things our fed­eral gov­ern­ment is doing.  There will always be folks stand­ing in line say­ing, “Look at these good things”, and then folks in the other line, say­ing, “Tsk, tsk, such a waste!”

So let’s start from the out­side and work our way back.  Let us argue, as many do, that “treat­ment is the right answer.”  Okay.  I agree.  Treat­ment is a bet­ter answer than pun­ish­ment.  Now let’s look at three fac­tors which com­pli­cate that pic­ture entirely:

1)  Pre­sum­ing we are going to man­date treat­ment, which will require tax­a­tion and gov­ern­men­tal reg­u­la­tion, we are still fight­ing a War on Drugs.  We may be fight­ing more like a Peace Corps engage­ment than a U.S. Army Search and Destroy mis­sion, but we’re still in a War.  Peo­ple will have to be arrested.  Force will be nec­es­sary.  Do you doubt this?  How would you expect to enforce laws that are sweetly writ­ten but don’t carry the force of law?  What you’re really doing is shift­ing the use of force, so let’s be hon­est about that.

2)  The assump­tion is that once we move the empha­sis from pun­ish­ment to treat­ment the drug car­tels will dis­ap­pear and the cost of the War will drop.  Where is the proof for this?  The fact is, you will still need to expend a great amount of money to treat addic­tion on a national scale, and you will still have com­pe­ti­tion.  In other words, there is no legit­i­mate rea­son to expect that things will sud­denly improve.  Prob­a­bly we would have to expend even greater effort than before because now you are argu­ing against some­thing you have given tacit approval to.  Maybe not.  I’m just throw­ing that out there.

3) The other assump­tion is, once you legal­ize drugs, mar­ket prices will drop, but I ask again: where is the proof of this?  Per­haps the only way to do that is to get rid of the com­pe­ti­tion alto­gether and give peo­ple their drugs, but .… given the gen­eral inef­fi­cien­cies of gov­ern­ment (and government’s well-documented resis­tance to any­thing like facts), you know as well as I do they’d screw that up so badly, we’d prob­a­bly spend three times what we’re spend­ing now.  Besides, this option works best when you have the option of wip­ing out the com­pe­ti­tion.  Back to where we started.

So .… what is the answer?  I believe I started this post by say­ing “There is no one answer.”  And I stand by that, with this pro­viso: treat­ing addicts like they’re mon­sters is not a good idea.  Addic­tion, like finan­cial chaos, like obe­sity, like men­tal ill­ness, is a weak­ness many peo­ple suf­fer from that is rooted in brain chem­istry, devel­op­men­tal dynam­ics, social pres­sures, and so on.  The answer — if we’re forced to resort to force — lies some­where in pro­vid­ing suit­able train­ing struc­tures and med­ical treat­ments that address men­tal ill­ness and dietary chal­lenges.  Pul­ver­iz­ing a person’s self-image to make a point is likely to rein­force the neg­a­tive behav­ior, in my view, which is the real moral dif­fi­culty with our War on Drugs.

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Two Thoughts About Pro­hi­bi­tion  Almost always peo­ple resort to the tired and incon­gru­ent anal­ogy of Pro­hi­bi­tion: “We tried it dur­ing Pro­hi­bi­tion and it didn’t work.  Ha Ha Ha!”  Well, here are two thoughts about Pro­hi­bi­tion you might want to consider:

#1  Socially, Pro­hi­bi­tion was feminism’s first major elec­toral vic­tory after obtain­ing the right to vote.  Women rebelled against drunken, abu­sive men.  Guess what?  It served them (the men) right.  Since they couldn’t con­trol them­selves, they shouldn’t whine about some­body knockin’ ‘em around.  By the way, this has a direct bear­ing on whether or how a free peo­ple can reg­u­late them­selves.  The fact is, drunk­en­ness and drug abuse are incon­sis­tent with free­dom.  Most peo­ple resent being reminded of that.  Eas­ier to bray.

#2  The very idea that you can ban alco­hol is, on its face, absurd.  Pro­hi­bi­tion was eas­ily one of the most ill-conceived legal maneu­vers in the his­tory of man .… and it has a direct bear­ing on how we should treat addicts: pun­ish them, or help them?

In related news, some­thing that I would like to see more of: Gen­uine dis­cus­sion of how cer­tain drugs, like psy­che­delics, ACTUALLY HELP PEOPLE.  Vic­to­ria Har­ris pro­vides a rea­son­ably inter­est­ing primer on how chang­ing social views affect how we treat ques­tions of what ought to be legal, but com­ments like THIS ONE are bet­ter than the arti­cle.  MDMA and var­i­ous other sub­stances actu­ally do pro­mote psy­cho­log­i­cal insight.  Blan­ket pro­hi­bi­tions against cer­tain drugs aren’t sci­en­tific.  They’re hys­ter­i­cal and imprac­ti­cal and .… cruel.

Some peo­ple are call­ing Obama’s stance on drugs Disin­gen­u­ous.  Wow.  Where have I heard that before?

Child­hood chum Mar­tin Shaugh­nessy wrote: “Actu­ally, there is a short answer. All drugs should be legal, high qual­ity, priced to mar­ket con­di­tions, and read­ily avail­able. What hap­pens when you give a junkie all the dope they want? Prob­lem Solved. Damn, you think too much, Bruce.”

UPDATE  While I am grate­ful for Martin’s feed­back, he makes my point for me.  The posi­tion, “legal­ize drugs”, pro­duces the same result as “abol­ish the FDA.”  Sounds great over Sun­day fried chicken, but I’ll guar­an­tee you will NEVER win a national elec­tion on it.  Everyone’s lib­eral about drug use till they think about tak­ing their grand kids to Tar­get and hav­ing to dodge ston­ers.  Or, like I tell my Lib­er­tar­ian friends, “Two weeks after drugs are legal­ized, there’ll be a bounty on you guys.  Twenty bucks a scalp.”  No one seems to think polit­i­cal and social real­i­ties are rel­e­vant to the dis­cus­sion — which was the point of my post.

Rob DeWitt wrote:  “You right­fully employ the image of a national opium prob­lem in the early 20th cen­tury. Imag­ine if there had been tele­vi­sion and movies every­where in 1900, sub­tly explain­ing to every­body who passed by that see­ing a prob­lem with opium addic­tion and the casual use of opium and cocaine in patent med­i­cine was just an indi­ca­tion that you were an uptight ass­hole who’d never get laid. There would not only not have been a great­est gen­er­a­tion, there would likely not have been their fathers fight­ing WWI, either.”

Hard-hitting stuff.  And way beyond what Deniers are able to grasp, I know.

Also, this, at Vanderleun’s:

mjazz: If meth was legal, the “tweaker next door” wouldn’t care if Mr. Han­ify was spy­ing on him. It would be like the lady next door shoot­ing you for watch­ing her grow toma­toes.

I replied:

“Spy­ing”?

That’s funny. And paranoid.

If you were ratio­nal, you’d real­ize I’m not tak­ing a spe­cific posi­tion. I’m talk­ing about soci­ety, and human nature.

UPDATE:  I was asked to give the Keynote speech last night at Mike Maki’s gala ben­e­fit din­ner and silent auc­tion Olympia Women’s Club, Abi­gail Stu­art House.  Mike and some friends were arrested in Octo­ber for grow­ing and dis­trib­ut­ing psilo­cy­bin mushrooms.

Mike and I are vet­er­ans of the West End of the Olympic Penin­sula, circa 1970s.  I was com­ment­ing that things were sure mel­low back in those days.  Peo­ple who came to see the national parks in the sum­mer used to always say, “You Pacific North­west peo­ple sure are friendly!”  Yes, we were.  And then polit­i­cal oper­a­tives invaded, and started cor­rect­ing thoughts and words.  Hasn’t been the same since.

Of sin­is­ter his­tor­i­cal note: the mania to cor­rect people’s thoughts has not come from tra­di­tion­ally con­ser­v­a­tive insti­tu­tions, like the Catholic Church, say.  It has come from mod­ern day “church­men” who have all but destroyed the indi­vid­u­al­ism that was inher­ent in my Pacific North­west.   It has all the fea­tures of a sci­ence fic­tion plot.

We see this neg­a­tive pat­tern played out in dis­cus­sions about top­ics like drugs.  If you have an opin­ion that dif­fers from the self-righteous, they cru­cify you.

What is that about?

All in all a very inter­est­ing evening.  Mar­tin Shaughnessy’s reply and the hys­ter­ics demon­strated by some com­ments at Amer­i­can Digest betray a com­plete inabil­ity to even con­sider that other peo­ple don’t agree with you.  They regard peo­ple who are opposed to legal­iz­ing drugs as “unin­formed.”  Here’s a news­flash for you guys: Mar­i­juana causes sig­nif­i­cant men­tal health impair­ment in many peo­ple.  I can’t help but notice that my friends who still smoke are .… oh.  Not cur­rent.  The rest of us see it.  We’re wait­ing for you to fig­ure it out.

And why and how are you so anx­ious to see peo­ple die?  Eh?  Just a question.

Inter­ested read­ers may enjoy my Pros­e­cu­tor Series.

This inter­view of Jerry Gar­cia is prob­a­bly the sin­gle best sum­ma­tion of the Six­ties I have ever seen.  Please note there was a very spe­cific kind of moment in which there was clar­ity, but .… “It went away as soon as it was publicized.”

[video mp4=“http://www.brucehanify.com/wp-content/uploads/2012/05/Grateful-Dead-Jerry-Garcia-Interview-1994.mp4” poster=“http://www.brucehanify.com/wp-content/uploads/2012/05/jerry-garcia-ripple-rose-ben-upham.jpg” preload=“yes” autoplay=“no” loop=“no” width=“575” height=“422”]

Inter­view of Jerry Garcia

ALL RIGHTS RESERVED BRUCE HANIFY 2012

Learning to See

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by Bruce Han­ify

Have you ever con­sid­ered that the brain must learn how to see?  Vision is not auto­matic. Even if we couldn’t test infants, we know from dra­matic blind-to-sight sto­ries that the brain must learn how to process visual data. Appar­ently it does this by pro­cess­ing mov­ing images. (Read about MIT’s neuro-scientific exper­i­ments on the fac­ulty of vision in Out of Dark­ness, Sight: How the Brain Learns to See.) Does that mean that at one time in evo­lu­tion we couldn’t see light? Like, maybe we were pod peo­ple? Aliens implanted our eyes? I leave those tit­il­lat­ing ques­tions to greater minds than my own. (A friend of mine used to pon­der why we had to have eyebrows. I quickly answered that many folks don’t. That seemed hugely funny at the time.)

In his book, Cos­mic Con­scious­ness, Cana­dian physi­cian Dr. Richard Mau­rice Bucke observed how the human fam­ily appar­ently could not see BLUE until very recently in our his­tory. He pro­vides fur­ther exam­ples of how our senses evolved new detec­tions of fra­grances, and so on. What seems sim­ple to us was pre­ceded by incred­i­bly long, com­plex bio­log­i­cal changes. Bucke also pre­dicted some­thing I believe: human beings are now poised to enter a higher state of con­scious­ness he called cos­mic con­scious­ness. Much of the dis­ar­ray we’re expe­ri­enc­ing at the moment is appar­ently part of this process.

Read­ers who are inter­ested in some of the mar­velous struc­tural changes in our brains, and how that has affected self con­scious­ness, should make the time to read Julian Jaynes’ The Ori­gins of Con­scious­ness in the Break­down of the Bicam­eral Brain and Erich Neumann’s Ori­gins and His­tory of Con­scious­ness. What you and I refer to as “right” and “left” brain is a fairly recent devel­op­ment in the long evo­lu­tion of the homo sapi­ens. For many mil­len­nia, we humans lived inside a brain where there was no such dis­tinc­tion. It is use­ful to learn how these things work because many politi­cized terms are actu­ally func­tions of changes in brain struc­ture and chem­istry, as opposed to objec­tive truths. If peo­ple took more time to study these things, instead of start­ing fights at hol­i­days, we’d all be bet­ter off. Of course, Tony Buzan’s books are invalu­able tools as well.

Years of life expe­ri­ence and some­where over 200 jury tri­als have taught me that human beings don’t “see” nearly so well as they think. Have you ever watched the Selec­tive Atten­tion Test, from Daniel Simons and Christo­pher Chabris?

HOW MANY TIMES DOES THE TEAM IN WHITE PASS THE BALL?

In my expe­ri­ence it is the rare juror who under­stands that our brains don’t work very well, if by “well” you mean ‘I am cer­tain.’ Have you ever dri­ven into traf­fic only to dis­cover — per­haps at great cost — that you had a “blind spot”? Well, the intel­lect is pock­marked with blind spots. If you don’t believe me, sign up for a logic or math class at your local col­lege; and if you’re “left-brained”, take a course on lit­er­a­ture or women’s stud­ies. You’ll find out in short order that your brain is order­ing what it sees. It does not see nearly so well as you may believe. Alas, sight is very much a func­tion of belief. Hard to accept, isn’t it? Yet it is true, and that fact has a direct bear­ing on what we can expect in the wake of this change in Ages. Those of us who are alive at this time are like the blind folks in Plato’s Alle­gory of the Cave. We think we see, but we never ask:

‘What do we think we’re seeing?’

Once you ask that ques­tion, life gets very inter­est­ing indeed. It is, in fact, the only hon­est ques­tion that can ever be asked, because once we ask it, we have to take respon­si­bil­ity for what we see.

The early Chris­t­ian Bishop, Syne­sius of Cyrene (370–413), made a num­ber of remark­able state­ments about our imag­i­na­tion, or our soul, that have a bear­ing on this dis­cus­sion. I want to share two with you. They are some­what dif­fi­cult to grasp, but they will repay atten­tive reading:

Imag­i­na­tion is the sense of the senses (the first body of the soul), nec­es­sary to all oth­ers: it inheres at the same time in both the soul and the body, It dwells within us: estab­lished in the head, as in a citadel which nature has built for us, and it gov­erns the ani­mal life. The hear­ing and the sight are not true senses, but rather instru­ments of sense, which put the ani­mal in rela­tion with the exte­rior world; in the ser­vice of imag­i­na­tion they trans­mit to their mis­tress impres­sions received by them from with­out, sen­sa­tions which are trans­mit­ted to us from the objects by which we are sur­rounded. Imag­i­na­tion is the col­lec­tive sense in which are united our var­i­ous senses: in real­ity it is that which hears and which sees; it is through it that all the per­cep­tions occur; and it assigns to each organ its par­tic­u­lar func­tion. From it all the fac­ul­ties pro­ceed: they are like the rays which go out of the cen­tre and meet wholly in the cen­tre: many in pro­gres­sion, and one and the same in ori­gin. The sense to which the organs are indis­pens­able is a purely mate­r­ial sense; or, to speak more cor­rectly, it is only a sense when it enters into the ser­vice of the imag­i­na­tion: imag­i­na­tion is the sense which has power of act­ing instan­ta­neously with­out inter­me­di­aries. It has a divine char­ac­ter through which it approaches intu­itive Intellect.

It will thus be estab­lished that the soul, as we have advanced, con­tains in itself the images of the things which become. It encloses them wholly, but it pro­duces them out­wardly only at a con­ve­nient time; imag­i­na­tion is sim­i­lar to a mir­ror in which it reflects itself, so that the ani­mal per­ceives the images which have their seats in the soul.

Syne­sius seems to be say­ing two things: first, that the ani­mal world, of which we are a part, is very lim­ited in what it can see, as indi­cated by the MIT study; and, sec­ond, that we we call “truth” is, accord­ing to Syne­sius, a func­tion of how are soul presents the world to us. Lest you think that closes the dis­cus­sion, Syne­sius writes at length about how to restore the imag­i­na­tion to its proper abode, the soul. He seemed to think that we cor­rupted the process of sight by reject­ing those things which the soul knows. In other words, part of the soul’s bondage is to find itself ensnared in inter­pre­ta­tions which are closer to the ani­mal king­dom. If imag­i­na­tion is restored to its proper place, we could con­sis­tently pro­duce har­mo­nious and pros­per­ous con­di­tions on earth.

One way of under­stand­ing this is to look at what hap­pens when peo­ple project evil onto a politi­cized label (pick your label). What they’ve done at that point is to ensure an out­come con­sis­tent with their expectation.

ALL RIGHTS RESERVED BRUCE HANIFY 2012

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.

#  #  #  #

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 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