Category Archives: Criminal Prosecution

When Lawmen Ignore Rule of Law

Published in the San Francisco Chronicle, May 21, 1998

MACHIAVELLI, a government official with a practical grasp of political realities, gave the following title to a Chapter of one of his books:  “It Is A Bad Example Not To Observe the Laws, Especially on the Part of Those Who Have Made Them; And It Is Dangerous For Those Who Govern Cities To Harass The People With Constant Wrongs.”   I am a “law and order” man with a passion for the rule of law.  But the experiences I’ve had with our criminal justice system are making me think that too many lawyers responsible for law enforcement seem to consider what they are doing either a kind of game, a political career gambit, or just another business, despite their sworn oaths to uphold the law.

I have been practicing civil law for more than thirty years.  But in each of the only two serious criminal matters I’ve had –one of which involved two California counties– two of the three Assistant DA’s in the cases blatantly ignored the facts and the law for the sake of the game.  (As a San Franciscan, I’m pleased to add that the one Assistant DA out of the three who showed interest in the actual facts of the case, and who agreed not to oppose the truth, was the San Francisco Assistant DA.)  The first case was a Petition to a Court to certify that a man who had committed several felonies was rehabilitated (so he might qualify for a pardon). The Assistant DA of a Southern California County opposed the Petition, while admitting to me that his opposition memorandum was wrong –both as a matter of fact and as a matter of law– and that our memo was correct in both respects.  But he wouldn’t withdraw his opposition, he said, because it was the “policy” of his office to oppose all such Petitions.

In the second case, the records of the DA showed that he had never read or considered evidence we sent to him before he filed the complaint; evidence which showed that the defendant could not as a matter of law have committed the alleged offense.  The complainant was a local citizen with highly questionable motives.  A lawyer who was a supporter of the investigating detective (who was running for Sheriff), told me that it was the “policy” in that County, when a criminal complaint was made by a citizen, “to throw things against the wall and see if they stick.”  By my definitions, this is not obedience to the rule of law by prosecutors: it is arbitrary, tyrannical rule by those “who govern cities;”  —-and  it is government harassment.

One of the first purposes of our government as stated in the Preamble to the U.S. Constitution, is “to establish justice.”  I thought at first it was just my bad luck to run into two Assistant D.A.s whose narrow politics overruled the principle that the purpose of our laws is “to establish justice” –though this is a principle each of them had sworn an oath to uphold.  But I have been told by friends who practice criminal defense law –people of high integrity– that this attitude has become common among prosecutors.  Their excuse is often that they are just “too busy” to take the time to evaluate criminal complaints as seriously as they know they should, so they leave it to the courts to do the work of justice for them.

As a member of the middle class and a grandfather, of course I want our streets to be safe and criminals prosecuted swiftly and effectively.  But respect for the law is something that grows or shrinks by the example of those who make and enforce the laws.  A young person doesn’t have to be a bad character to get in trouble with the law once or twice during his impulsive youth.  What respect are young defendants likely to have for the law when, during such encounters, they learn from their private attorneys or public defenders that the DA’s office doesn’t really have time to consider the facts or, in many cases, even really care very much about justice?  In such an environment, you would expect, wouldn’t you, that a jury with men and women on it who knew of such prosecutor attitudes, might even want to free a guilty person now and then to set an example?   And you would also expect even young, idealistic criminal defense attorneys to learn soon that truth and justice are only hollow words to criminal prosecutors, so that they will have to “play the game” just as ruthlessly, whether their clients are guilty or innocent.  Level-headed Machiavelli told us that when those who make and enforce the law disregard it

“the consequence is that such disregard becomes the habit of the people themselves, who cease to organize the government for the general good, but instead only act with the view of benefiting their own party, which, instead of establishing order in the republic, only tends to increase disorders.”

If it takes more money to staff DA’s offices with people who can remember their sworn duty to uphold the Constitution while they’re doing their job, I for one would be willing to pay for it in taxes. The way DA’s offices work now, there is a good chance that any troublesome or disturbed person could cause me, or my grandchildren –or you– enormous unnecessary stress and expense because some DA is willing to “throw their complaint against the wall to see if it sticks,” without bothering to think about what that could do to me, or to my grandchildren or to you –or to our system of government.

(C) 1998, Harrison Sheppard