Highly Questionable Lawyer Practices Have Found Their Way into Criminal Justice

Guest post by David Boyd

A company has a potential liability that they want off their books. An ethically questionable law firm has the solution. Initiate a class action lawsuit against the company, settle the case quickly with a hefty fee for the lawyers and little to nothing for the class. It does not have to be outright collusion; maybe they just each have incentives, but the incentives are entirely aligned with each other so that they are not on the opposite sides. They are not adversaries in the legal sense, and the true victims get left behind.

Something remarkably similar is going on in criminal justice here in California. Long final death sentences are being undone through the same kind of collusion of interests. Anti-death penalty forces and state funded lawyers have a responsibility to represent their death penalty clients. Progressive prosecutors like George Gascón do not believe in the death penalty, despite the fact that the voters of the State of California recently, twice (2012 and 2016), reaffirmed their desire for the ultimate sanction. Gascón does not have the power of the Governor to commute a death sentence, so what is he doing? He invites a lawsuit.

The killer’s counsel brings a highly questionable claim arguing that there was some error in the judgment that has escaped the eyes of the judicial system in these highly scrutinized cases despite decades of examination and judicial inquiry. Gascón runs to court and agrees with the claim, or more accurately sends a defense attorney that he has hired on, because no ethical Deputy District Attorney will sign on to such an outrageous subterfuge. The defense attorney, now a prosecutor, tells the court that they agree that the penalty should be vacated without regard to the merits of the claim, and voila, the court orders the penalty vacated.

If you think it is not happening, think again, and it is not just for undoing the death sentences. It is helping to release killers too. The voters recently changed the law as to who makes the determination whether a 16- or 17-year-old killer will face adult or juvenile court. The voters required that a judge make that determination. So what did the “progressive prosecutor” do when he disagreed with the voters and believes that no juvenile killer, no matter how vile, no matter how depraved, and no matter how sophisticated, should face an adult sanction? He did the same thing in as those class action claims. He simply refused to present the evidence the court would need to make the decision. The result, the murderer, only two months shy of his 18th birthday when he killed, walked out of custody after only a few years of his 50 years to life sentence. Reformed? Doubtful. Justice, absolutely not. The “prosecutor” was quoted by the killer’s mother as stating “Girl—I got you.” Sickening.

If you think it is only a few cases, you would be mistaken. Progressive prosecutors have for years been reopening old cases quietly and applying their own personal sense of justice as opposed to the laws of the State of California. They do not bother with the considered judgment of the court system that handled the case originally, nor do they concern themselves with the fact that the conviction and sentence was upheld by the court of appeal on a direct and collateral challenge. They simply want them undone, and as a result, questionable tactics are deemed acceptable in the name of “justice.”

Of course, our legislature has now eliminated the need for questionable methods, such as agreeing to non-existent errors, by simply authorizing “progressive prosecutors” to undo old cases by recommending them to come back to court for resentencing. However, just like the judges who approve a questionable class action settlement, one wonders how much judicial scrutiny is conducted during these times of crowded court dockets. What about the massive incentive for backroom money politics for wealthy defendants who have done wrong? Why is the Governor’s (slightly limited) power of clemency insufficient? Are the victims truly being informed of their rights under our Constitution? What about a victim’s California Constitutional right to finality of the case?

Cross-examination has been described as the greatest search engine for the truth, and it is absolutely true. But only when it is cross-examination. The criminal justice system operates on the adversary system. The system needs opposing sides to bring the facts and the law forward so that the judge can make an informed decision consistent with the letter of the law as written by the voters or our representatives. This system breaks down when we have players who are not adversaries, but rather have aligned interests. It incentivizes unethical behavior too. All the “progressive prosecutor” needs is a defendant to bring a questionable claim, and then they can simply give up. It is already being done and too few are paying attention.

It is time for the courts, the fourth estate, and the public to start paying attention. Thankfully, at least one court has done so but there needs to be more. It is time for us to decide whether we agree with the rule of law and the adversary system’s ability to bring about a just result. If we do not believe in such things, we should not pretend to have an adversary system. What is going on now, as a pretend adversary system, is that some progressive prosecutors have waited out the victims’ resolve for years, even decades, until they are so numb with the repeated reminders of the brutality of the crimes that they abandon any faith in the system. Once silenced by the passage of time and the continued attacks, clever defense counsel can call up the prosecutor and, through the force of the raw power of the progressive prosecutor, successfully allege that there has been an injustice for the defendant all those years ago when nothing could be further from the truth. That is not the rule of law, and it is not justice.

The opinions expressed here are that of the author and not necessarily that of his employer.

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