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