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.
“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.
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