For the People

by Larry Krasner

  American law and the courts have at times also quietly endorsed deception by police in ways other countries don’t tolerate. For example, American detectives are permitted to lie to suspects during interrogation for investigative purposes, sometimes to disastrous effect. Virtually every homicide defendant I met during my career in criminal defense who signed a confession of some sort told me the same story, even though none of them knew or were in communication with the others. Detectives had told them that if they signed the statement they would be released from custody, where they could fight the case “from the street.” None of them fought the case “from the street.” It was a lie. They were all then held in jail with no chance of bail under state law, as the detectives well knew they would be. Many of those homicide defendants disputed portions or the entirety of their statements, claiming it was not what they said.

  It is a fact that 25 to 30 percent of convicted people who have been exonerated by DNA evidence that established they were completely innocent confessed to the crimes they did not commit (or even witness in nearly every case). How does a truly innocent person who never even witnessed the crime or the crime scene confess to the specifics believed to be true by the detective who is conducting the interrogation? How do the detective’s ideas become the defendant’s entirely false words? Every one of the defendants in the 1989 Central Park jogger case confessed to details of a rape and beating they didn’t do and hadn’t seen. Their confessions clearly reflected what detectives knew or incorrectly surmised. The confessions told the story of how the detectives imagined the crime. After years of these young men’s incarceration, the actual perpetrator was connected to the crime by DNA and explained what really happened, a starkly different truth to replace the confessions’ fiction.

  All of this misconduct needs a reckoning. But how? What does accountability look like for detectives who turn innocent people into puppets, manipulating them to falsely confess to crimes with details spun from the detectives’ imagination? What are the detectives’ consequences when they essentially kidnap innocent people with coerced and phony confessions, while letting real perpetrators go free, sometimes to hurt others, and usually forever?

  The answer we provided in our campaign was straightforward. When the facts and law support it, accountability means charging police with crimes, as you would anyone else. It means being transparent about troubled officers, as the Constitution and basic fairness require. And that means keeping information on troubled officers who threaten the integrity of the system and providing that information to defendants and their lawyers. It would be a step in the direction of true justice: Sharing the Brady information would prevent innocent people from being convicted and, just as important, prevent guilty people from getting their convictions overturned because we hid the information that the law required us to provide. We weren’t going to let the Philly DAO cheat anymore. Our campaign supported the modern movement toward “open-file” discovery, in which prosecutors essentially open their entire files to the defense.

  It would mean using our power to lift up the best police officers by knocking down the worst ones, and holding them accountable. That kind of accountability would shift the system. Prosecuting bad officers not only stops graft and corruption but also allows the larger system to heal and remake itself, so that routine corruption is no longer so routine.

  A virtuous cycle would be put into motion, replacing the vicious one that came before. Hardworking, decent police officers will tell you that dirty, abusive cops make all police less safe, make their jobs harder, and degrade their profession, which in turn makes the community less safe. Bad cops chill the flow of information from community witnesses, reducing officers’ ability to prevent and solve crime. The best cops have always hated dirty cops. They will tell you that their union dues shouldn’t go to protect cops who commit crimes on the job. Our campaign was about supporting police who followed the law by doing what our oath would require if we won: keeping our promise to prosecute police who were all about breaking the law. And that is exactly how prosecutors always should have had the backs of the good cops and everyone else.

  CHAPTER 8

  Prosecutor Integrity

  Shut your eyes

  Trust in me

  —Kaa the Snake, “Trust in Me” from The Jungle Book

  Every day, when criminal proceedings start in jurisdictions all over America, lawyers stand up to identify themselves first and then identify their clients to the judge and on the court record, by name. Criminal defense lawyers state their client’s first and last name: “For Jack Smith.” Prosecutors identify their clients. They say: “For the people.”

  There are a lot of people. It is uniquely the prosecutor’s job to represent everyone in that jurisdiction, including Jack Smith. And it is uniquely the prosecutor’s sworn oath to seek justice for the people. Seeking justice for everyone moving forward presents its challenges. Prosecutors weren’t there when a crime occurred, no matter how committed, persuasive, or certain they may be. They do not necessarily know what uncertainties, mistakes, motivations, biases, or games may be in play. But they should be trying really hard, all the time, to find out and to get it right, because that is what justice requires.

  * * *

  —

  Zoe’s and Maria’s stories are about police integrity, but they invite important questions about the many prosecutors whose hands touched their files. No, the prosecutors were not eyewitnesses to the alleged events that were the bases of the charges. Yes, the prosecutors had spoken to the police officer husbands who were bringing the charges against their own wives and had heard the officers’ versions. No, the prosecutors had not spoken to the defendants or their witnesses and heard their conflicting versions, as usual. But a prosecutor doesn’t have to know everyone’s version of an event to spot a motive.

  The prosecutors who handled Zoe’s criminal case and Maria’s two criminal cases knew up front that the supposed victims in these criminal cases were estranged husbands who were police officers sophisticated in criminal proceedings, that they were going through divorces with the women they accused, and that the estrangement and divorce activity began before the supposedly criminal events occurred. They knew the accusers and defendants had young children together. They knew that family court proceedings involving child custody, child support, and alimony were under way. But none of the prosecutors who handled Zoe’s and Maria’s case files slammed on the brakes to take a closer look before we all found ourselves in a courtroom where police officers were testi-lying and getting carved up by a criminal defense lawyer’s questions they couldn’t answer and witnesses they couldn’t refute.

  It was nothing new, unfortunately. By the time I ran for district attorney, I had a sackful of stories about prosecutors whose necks must have been sore from looking away from obvious problems in cases or who, in my opinion, had tried to actively conceal facts and evidence that damaged their cases just because they wanted a win that bad and didn’t care how they did it. I can tell those stories without spitting because their tricks and lies and constitutional violations and unethical conduct didn’t work. I will probably never know about the dirty, illegal tactics that worked.

  When I tried my first death penalty homicide case, the defense was identification. I was arguing there was a reasonable doubt whether the defendant, my client, was the killer in a homicide by gun. The evidence established already that the victim and defendant knew each other well. I had planned to use two prongs of an attack on the prosecution to show the defendant did not kill the victim. They were (1) that the killer had shot the victim at close range, giving the victim the opportunity to see his killer; and (2) that the victim communicated to a police officer that the defendant was not his killer just before he died.

  I was trying to establish part 1 by evidence of gunpowder stippling. When a gun is fired, stippling is caused by the burning gunpowder that flies forward, out of the barrel of t
he gun, and lands on anything in its path for a few feet before gravity drags the burning particles down to the ground. When that burning powder lands on skin or clothing, the particles often attach and burn on that surface. The victim’s clothing and body had clear stippling, indicating the shooter was within only a few feet when he fired his gun. I needed part 1 to set up part 2, which was the testimony of a police officer who spoke to the victim as he lay dying and asked him, “Do you know who killed you?,” to which the victim shook his head back and forth, in a motion the police officer said meant the victim was saying “no.”

  First, the prosecutor presented a police firearms expert who surprised everyone but the prosecutor by telling the jury that burning gunpowder particles travel great distances—thirty feet or more, contrary to the science we all knew and the testimony of other firearms experts who testified in the courthouse daily, including before the tall, imposing, and dignified judge who was presiding. The judge, James Lineberger, was a senior, Black ex-military officer and an ex-prosecutor who had also been a criminal defense attorney. As soon as he heard the expert’s nonsense, he loudly coughed “BULLSHIT!” and called a recess in the trial while the jury left the room laughing quietly and covering their smiles. After the experienced prosecutor sputtered for a while over the scam her witness was perpetrating and the judge’s unorthodox way of exploding it to get justice, the judge called the jury back in and advised them that they should disregard his outburst, which was caused by the firearms expert’s testimony being “completely different than the testimony other firearms experts offer in this courthouse every day.” The jury kept smiling. They got the point.

  Second, the prosecutor presented the police officer who had spoken to the victim just before he died. Rather than have the police officer testify freely, she asked very specific questions designed to elicit very short answers. She got the officer to testify that the dying man “shook his head,” without more specifics. That testimony, undisturbed, said nothing. A shaking head could be a paroxysm of a dying man. It could be a head shaking up and down, as if to say “yes,” which police paperwork made clear was not at all the meaning of what the officer had seen. It was left to me to get the police officer to provide the specifics necessary for the jury to understand that the officer was testifying the victim had said “no.” The jury properly found a reasonable doubt and acquitted the defendant, no thanks to the prosecutor’s cynical efforts to conceal the truth. That experience was not isolated.

  In another homicide, a prosecutor presented a jailhouse snitch—an inmate who was claiming to have heard the defendant admit guilt in the homicide while they were both in custody. Jailhouse snitches are notoriously unreliable. Many of them read the newspaper or steal another inmate’s criminal case paperwork or work family and law enforcement contacts to harvest enough details about a crime so that they can fabricate a confession story that contains enough specifics about the crime itself to sound true. Jailhouse snitches do their snitching for the usual reason, to get reductions in charges and jail time or better treatment in custody. Unsophisticated juries often credit jailhouse snitches more than they should. Even so, some jailhouse confessions are real.

  The prosecutor should have told me that this jailhouse snitch was a “frequent flyer,” a jailhouse snitch who had testified in multiple cases against multiple defendants, but she didn’t. My client’s family had heard that the jailhouse snitch testified in another case involving another shooting in the neighborhood, and got me the name of that other defendant. I obtained notes of testimony confirming the jailhouse snitch’s testimony from that other trial, which had been prosecuted by one of the prosecutor’s colleagues. I kept reminding her to let me know if the jailhouse snitch had testified in other cases as a prelude to raising the issue with the judge. She repeatedly put me off, indicating she knew nothing about it until she got wind of the fact that I knew better. Mid-trial, she showed up with the notes of testimony I already had.

  It turned out the jailhouse snitch was such a “frequent flyer” that he had magically accumulated three jailhouse confessions for the prosecution to use in three separate murder trials being prosecuted by the prosecutor’s small, elite, and close-knit circle of homicide prosecutors.

  The jury appeared to be taking the snitch’s testimony about my client’s supposed jailhouse confession seriously at first. That all changed when they learned through my cross-examination that he was so persistently helpful to the same entity that was prosecuting him, the Philadelphia District Attorney’s Office, on so many different homicide cases. He just kept collecting confessions from people he barely knew. On closing argument, I referred to him as a “confession vending machine” who would give the prosecution any and as many jailhouse confessions as they wanted. Many jurors smiled. The jury didn’t buy the supposed jailhouse confession.

  Those are just a few of my own experiences on heavy cases—but I and the courthouses of Philadelphia were full of stories about illegal and unscrupulous prosecutors failing at their treacherous games. And we were full of stories from less serious cases about ugly and inappropriate instances of prosecutorial discretion that don’t meet what the people mean when they talk about integrity.

  Sam Chu was a fifty-year-old Asian immigrant I represented on charges that he stole back a bunch of money that was stolen from him. Chu allegedly photoshopped some cashier’s checks to make them appear worth a couple hundred thousand dollars more than their actual value. He gave them to a laundry machine supplier who had ripped off Chu first. The money was even, but only Chu got charged.

  It was unsurprising that Chu would be charged with crimes, even though he was a hard worker and good family man, had kids in college, and had no prior criminal record. But when it became thoroughly documented and crystal clear that Chu was stealing back from the laundry supplier the same money the supplier had stolen from him a few years earlier, the prosecutor should have hit the brakes. Yes, there was clear evidence Chu had engaged in an economic crime. But it was against a criminal who’d victimized him with a similar economic crime first.

  My repeated efforts to obtain a diversion of Chu’s case, an outcome that would have made him accountable in some fashion but avoided a conviction, was not well received by the Philadelphia DAO. I was told “no” curtly, then rudely, by prosecutors who kept insisting Chu pay back the thief who had stolen equivalent money from Chu in the first place.

  The laundry equipment supplier had already gotten away with his theft due to the passage of time and little on the part of law enforcement in helping Chu, for whatever reason. Perhaps the laundry equipment supplier believed stealing and getting away with it is the same as earning money, so he tried to use the criminal process to make Chu give it back. Chu was lucky. At trial, we won his case before a judge who smelled the rat in the room and was unwilling to let criminal court be used by prosecutors hell-bent on helping thieves get their stolen money back.

  And then there were Jed, or Dinosaur Man, as we called him, and Mr. Kirk, a schizophrenic homeless man who renamed himself at trial. I met these two severely mentally ill men about twenty-five years apart. Mr. Kirk was my client in my first felony criminal trial before a judge as a public defender. According to police, he had banged on the windows of a house while yelling scary things until a window broke, to the obvious dismay of the homeowner, who was inside and called police. Mr. Kirk was arrested on-site and charged with very serious high-level felony charges—burglary and criminal trespass, among others.

  When I visited him in jail, Mr. Kirk told me he sometimes talked to people he could not see. Although he could see me, he still was not a great communicator and told me things that were vague and sometimes contradictory—for instance, that he’d been arrested while trying to save the homeowner. With no real treatment available for him, and no way to get out of jail because he had no money to pay bail, he was in danger of languishing there for a long time despite the fact that nothing in the case or his history
indicated he had a propensity for violence or that he was inclined to break into places to steal things.

  I tried to get him mental health treatment and housing rather than a conviction on serious charges, but the prosecutor—or more likely the prosecutor’s supervisor—wasn’t hearing it. Felony guilty plea and jail time or try it, I was told. With no other pathway, we tried the case before a fairly conservative but experienced judge whose career had been as a prosecutor.

  I called my only witness, Mr. Kirk, not knowing exactly what he would say. He had told me a couple of versions. He took the stand like he was moving underwater, overly polite but wild-eyed, with his jail clothes in disarray, before testifying to the most complete and interesting version yet. Mr. Kirk explained to the judge that he had been walking on the block when he realized there were devils inside the house and that the devils had put the house on fire, so the people inside had to be saved. He repeated that the people had to be saved and then stopped, staring at the judge from the witness stand. The judge was guarded, watching him carefully. With great sincerity, my client slowly said to the judge, who was Black: “Did you know, Your Honor, that I was the first Black captain of the starship Enterprise?” The judge laughed, announced a short recess, stepped off the bench to smoke a cigarette, came back, and threw out all the original charges while devising a mechanism to push the captain toward housing and treatment.