You don't want to be a defendant in Orange County, California. For decades, prosecutors have skirted the law to rack up convictions— paying unreliable informants, intimidating witnesses, lying, and refusing to turn over evidence to the defense. Thanks in large part to OC Weekly journalist Scott Moxley’s investigative reporting, some of the misconduct in the district attorney's office has recently come to light. As a result, more than a dozen people charged or convicted of serious crimes have had their charges reduced, their case retried, or their case dismissed. And this is likely only the beginning. From the Marshall Project:
"[T]his appears to be the tip of the iceberg," John Van de Kamp, a former state attorney general, and Erwin Chemerinsky, dean of the law school at the University of California-Irvine, wrote last year in a letter to the Justice Department, requesting a federal inquiry. "Compelling evidence of pervasive police and prosecutorial misconduct in Orange County...has caused us grave concern."
Now, the Marshall Project reports, four Orange County prosecutors are running for judgeships. Two of them, Michael Murray and Larry Yellin, are looking for positions on the Superior Court—which would put them on the same bench as judges who have been critical of their unethical behavior. It is fair to say that this isn't a coincidence. These are men who have admitted to violating the law by withholding evidence. Both men will likely win. (The other two prosecutors running have not been accused of misconduct.)
It is hard to convey the impropriety and corruption that will inevitably be created if these prosecutors are elected to the bench. Their candidacies—hybrid mixes of retaliation, intimidation, and an insatiable need for control—stand in direct opposition to the goals of the judiciary.
While this particular situation has especially disturbing implications, it speaks to a much larger issue in our criminal justice system. If our legal system is committed to fairness, then it should implement safeguards to prevent such blatant wrongdoing. The best safeguard would be prohibiting prosecutors from becoming judges.
Our forefathers were not deities, but they understood the importance of defendants’ rights. They recognized that a criminal legal system that favors the state will inevitably result in the unjust persecution of individuals. They recognized the necessity of an impartial judiciary to ensure fairness.
In theory these values still hold, but in practice they have rusted a bit. Yes, prosecutors still have the burden of proof. But every other burden lies squarely on the shoulders of the defense, especially for indigent clients.
Institutionally, prosecutors are at an advantage.
To begin with, prosecutors have the benefit of more resources. Funding for indigent defense has plummeted as states continue to slash budgets to their very bone. Take Louisiana, where the situation is virtually criminal as public defenders live out a nightmare. Louisiana is the most incarceratory state in the most incarceratory country in the world, and the government spends a remarkable $3.5 billion on police, prosecutors, and incarceration. They spend less than 2 percent of that on public defense, despite the fact that about 90 percent of Louisiana defendants qualify as indigent and are entitled to a public defender.
In early February, public defenders in Lafayette were told that the office couldn't survive another month unless serious cuts were made. According to one defender in that office, the office's 30 contract attorneys, all of whom were essentially working full-time to help get a hold on the office's massive caseload, were fired. Ten of the office's 18 public defenders were also let go. And the remaining public defenders, many of whom were already making about $50,000 or less annually, were told that their income had to be reduced by $10,000 to $15,000.
Resource disparity isn't isolated to Louisiana, and it isn't the only advantage prosecutors have. There's an institutional advantage: Prosecutors are understood to be representing the entire government and all the people of the state against a lone defendant. This certainly has its advantages—prosecutors already tend to have a closer working relationship with judges than defense attorneys do, which inevitably shifts the fragile balance.
What's more, the entire nature of judicial elections has led to an imbalance in our adversarial system, an imbalance that favors the prosecution. Much of the judicial election campaign narrative centers on crime, and being tough on crime has traditionally been the surefire method for getting on the bench. Studies show that judicial elections make judges harsher. Especially during election season, judges often rule overwhelmingly in favor of the state.
This also gives prosecutors a huge advantage when they run for judgeships. When tough-on-crime is the main measure of electability, who better to elect than a former prosecutor?
The purpose of illustrating these advantages is not to blame prosecutors—some of the unfairness that exists in our adversarial system is inherent and perhaps even unavoidable. Prosecutors play a highly influential role in the complicated web that is our criminal justice system.
The point is simply to highlight the existence of such advantages. Throughout the criminal justice system, the state is afforded large and small benefits, none of which exist in isolation. Meanwhile, criminal defendants are often left helpless.
The fact that our system is designed to ensure a fair adversarial process does not inherently ensure it. By putting prosecutors on the bench, we drill the last nail into the coffin.
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The problem is not just institutional. It is also personal.
In Orange County, what we are seeing are the essentials of a rigged system. The unethical behavior in the DA's office has created tension between prosecutors and the county judiciary, a situation the Marshall Project calls a "protracted legal sparring match." Instead of changing their behavior or apologizing for their misconduct, however, the DA's office is simply trying to conquer the bench.
But how can we trust a corrupt prosecutor to be a trustworthy judge?
Surely, of course, not all prosecutors are as conniving as those in Orange County. Many of them may pursue the judiciary simply because it is a more prestigious job, or because they feel it is a better fit.
But despite their good intentions, it is still unjust to put even the innocuous prosecutors on the bench.
Bias is a wide abyss, swallowing even the most enlightened. That our justice system purports to ensure impartiality and objectivity is a farce—an admirable one, but a farce nonetheless.
Still, the inevitability of bias does not mean that we should abandon our promise of an unbiased system. We should try anyway. We should take precautions, ensure transparency, develop boundaries. We should do everything in our power to limit the inherent biases that cloud judicial values.
Judges should strive for impartiality the way Buddhist monks strive for enlightenment. There should be classes, check-ins, assessments, tools. Judges should be rigorously and continually trained. The position deserves reverence—reverence we do not afford it and reverence it often does not earn. The judiciary should not be available to the highest bidder, or to the local prosecutor who is looking for prestige.
In reality, though, we have forgotten the value of an impartial bench. Instead America has politicized the judiciary, sullied it with corporate money and outside influence, and turned it into another political position.
In the process, impartiality has slipped from its high ranking on the list of judicial values. We don't blink when judges take corporate money, and we don't flinch when prosecutors ascend to the bench and rule in cases led by their former coworkers.
Judicial bias and misconduct are regularly evident in practice. I've covered a number of stories where judges who were formerly prosecutors make extreme or improper decisions in ways that seem influenced by their previous role.
We regularly spit in the face of judicial values and it is crippling our criminal justice system.
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Surely, many will ask whether we should also prevent criminal defense lawyers from becoming prosecutors. The answer is a tentative yes. After all, there is also serious potential of bias there. Preferably, judges would be rigorously trained and intimately familiar with the criminal justice system without being directly employed in the adversarial process.
Yet, a confession: Given a choice, I'd prefer that criminal defense attorneys ascend to the bench over prosecutors. After all, many of the other institutional advantages listed above do not apply to criminal defense lawyers, especially indigent defense lawyers. The state and the defense may have an adversarial relationship, but they tend to operate differently in critical ways. What is primarily concerning about the influx of prosecutors running for judgeships is the fact that it will only add to the numerous institutional advantages that prosecutors already have.
Those with good memories—or even just average ones— may find my position strange, as just last month I stated differently. In March I wrote:
Of course, prosecutors shouldn’t be entirely prohibited from becoming judges. Perhaps the answer is that former prosecutors must also work as public defenders before being appointed to the bench. Or perhaps we should appoint just as many former defense attorneys to the bench as former prosecutors. There are possible solutions.
The word "shouldn't" in the first sentence should have been "can't." Realistically, there is no way we can remove prosecutors from the judiciary. It is too late. The bench is already packed. Even if, from this point forward, no prosecutor ever ran for judge again, we'd have an inordinate amount of prosecutors on the bench.
Eliminating prosecutors from the bench is admittedly a pipe dream. Perhaps second best, then, is ensuring that the judiciary is equally representative of our criminal justice system by electing and appointing more criminal defense attorneys to judgeships.
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So just how many judges were once prosecutors?
From a 2014 New York Times editorial:
[A]bout 85 percent of Mr. Obama’s nominees to the federal bench have been corporate attorneys or prosecutors, or both, in some cases. Fewer than 4 percent have worked as lawyers in public-interest organizations. And while 43 percent of his nominees to the federal trial courts were previously state or federal prosecutors, only 15 percent were public defenders. At the appellate level, only 4 out of 56 nominees were public defenders and 21 were prosecutors.
Federal numbers, while instructive, represent just a small portion of the national judiciary. Still, while there are no official numbers, research indicates that a significant number of state judges are also former prosecutors. Many of those judges preside over cases brought by their former employer. This is accepted. This is common. We stack the deck against defendants and we wonder why incarceration is so prevalent.
Mass incarceration cannot be blamed on one actor, one phenomenon, one law. But without question, the incarceration surge over the past three decades can be linked in part to prosecutorial power. If we want to reign in incarceration, we must reign in prosecutors.
Imagine if Lebron James decided tomorrow that he didn’t want to play for the Cleveland Cavaliers, that he’d rather referee the team instead. Everyone (or at least everyone that likes basketball) would cry foul. And yet we essentially let the same thing happen in criminal courts all throughout America. And, with all due respect to Lebron, in the courtroom, the stakes are much, much higher.
More caution and consideration is necessary if we want to end mass incarceration and truly transform our system. We must force the criminal justice system to think more critically about the judiciary. The judge is structure, guidance, referee, decision-maker.
In many places, voters have the power to elect judges. If fairness is something voters value, they must think long and hard about what that looks like. America will simply never have a fair system if our judiciary is packed full of former prosecutors.
