I had gotten just a taste of violence and just a taste of what it must feel like to be a victim from a disfavored, marginalized group who was engaging law enforcement. How much worse would it have been if I had been a victim whose status was criminalized, in addition to being disfavored and marginalized? What if I were a drug buyer who got cut by a dealer, or a sex worker who was cut and robbed by a supposed john? A dealer or a john who got cut? Would the police have helped me or arrested me or both? What if I had been an undocumented immigrant? Help, jail, or deportation? What would have been the consequences of being a gay victim of crime who sought help from the criminal justice system in the times when their sexual activity was still a crime and gay bars and gatherings were rousted by police at will? And what if I were all of the above—a victim marked by marginal status, criminal status, and foreign status all at once?
Historically, the answer has been that if you are an outsider victim who comes marked by a disfavored status, you don’t report the crime because you fear the system won’t protect you. You fear the system will not protect you the same way it protects insiders, as you deserve. It might even come after you, so you don’t trust it enough to engage. And so classes of pariahs for criminals to victimize without consequence come to exist. Serial killers and serial rapists have chosen to prey on sex workers and other marginalized people to avoid detection and its consequence. In America, criminals single out undocumented immigrants to rob, knowing that their robberies won’t be reported because undocumented victims and witnesses will fear deportation if they go to court and testify. The situation doesn’t get safer for anyone when victimized undocumented immigrants can’t engage the criminal justice system, so they buy guns on the street to protect themselves or to deter further crimes against them and their community. They carry those guns on their twelve-hour workdays as they move in their vans full of tools.
Because I appeared less privileged than usual the day I was cut, the detectives heavily scrutinized what I said rather than confirming the details: that I was a lawyer; that my office was around the corner from the crime scene; that my truck was a few blocks away, still parked right next to my blood as we spoke; that hastily abandoned drug residue and paraphernalia remained on the nearby back porch; that my home address confirmed why I would be driving and to where. An hour after interviewing me, the detectives said the details of what I had told them checked out. I thought they looked slightly disappointed that their salacious backstory wasn’t true. They left and I stayed.
On that gurney, I was alone again just like in the alley, and far away from my family for hours. A nurse told me that doctors had ordered more testing done for possible eye damage, nerve damage, a broken eye socket, concussion. Testing was good, but it would take some more hours. At least when I told my boys everything, I would have answers and would probably be home. I knew that no matter how bad the damage, it could have ended much worse.
Eight hours and a lot of expensive imaging later, I was informed there was no orbital fracture, no nerve damage or evidence of concussion. In the middle of the night, an ER resident gave me more than twenty meticulous internal and external stitches and released me onto the street. Cool, pitch-black air and the sound of crickets hit me when I passed the hospital’s automatic doors around three a.m. Exhausted, jumpy, and in pain, I made my way past staggering people, sex workers, people who were selling or buying drugs after the bars had closed. Some turned and looked. Walking under a streetlight, I caught my reflection in a storefront. Light shone off the fresh white bandages on my head, my arm, and my splinted right hand. A sling for my arm was rolled up and hanging out of my back pocket, making me an obvious target. I tried to disappear by avoiding people, switching sides of the street, reversing and changing my route when I saw people until I could discreetly get to the poorly lit alley where my truck was still parked. When I made it a short block from where I’d been cut, I peeped around the corner to make sure no one was there. Keys in hand, I jogged to the truck, looking down for my blood on the pavement. The alley was too dark for me to see. I unlocked the door and jumped in the driver’s seat, closed it, and locked it as fast as I could. My shaking hand found the key slot. The old truck started with a growl as I turned on every light I had but the domes—headlights, high beams, and fog lights as if I still needed to be invisible as I steered. The truck’s big wheels rolled over and down from curbs as I slowly maneuvered around bollards, telephone poles, and dumpsters that had rolled out of position and were impinging on the narrow lane of travel. I turned onto another narrow alley to get to Twelfth Street’s two wider lanes, parked cars, trolley tracks, and streetlights. Controlling the truck and being surrounded by its armor reduced my fear as I headed home, wondering how best to break the news to my kids in the morning.
The attackers were never caught. No fingerprints or DNA were pulled from whatever drug paraphernalia remained or my stolen phone, which was discarded a couple of blocks away and recovered by a pedestrian the next day. As far as I know, law enforcement didn’t try to lift prints or gather DNA. I never knew whether the people who attacked me took the phone to rob me or took it to stop me from immediately calling the police. Either way, without being able to break the phone’s security code, they had no use for it.
Weeks later, the detectives did offer to have me go through mug shots of the usual suspects. My view of the attackers was brief, mostly peripheral while I was spinning around, fighting. They wore hats very low. I barely saw their faces and saw nothing distinctive. Even their races and approximate ages were uncertain: One was olive-skinned, the other paler. Deep in their addiction, they had slim physiques and generic oversized clothes. I declined, knowing from the event I had seen too little and knowing a decade into my career that there was less chance of a correct ID than a mis-ID. I was unwilling to risk an innocent person going to jail.
For a couple of years afterward, I mostly avoided the corner where it happened, although I passed close by every workday. When I had to walk by, I would give it a wide berth as if a bull could come charging off the back porch at any time. Sometimes, when the afternoon light was a certain way near where it happened, my heartbeat would pick up or my hands would shake. That was then. The scar has faded and blends with the other creases in my forehead now, and in some ways so has the memory.
I have thought for fifteen years that the blade was probably meant for my jugular or my eye and only missed because I was falling backward over the curb. Drugs you smoke don’t improve your aim, if the razor was aimed at all. At first, the idea of bleeding out alone in shafts of sunlight moved by a benign wind in trees full of singing birds, of leaving my young sons without saying goodbye, was just overwhelming. I knew my wife would have struggled, but been okay. My boys grew up and moved out, and those feelings mostly went away. I can smile about it now and joke that my daily existence since I got cut is my afterlife, a second chance for someone who believes in second chances. I’m okay, but I know my experience was nothing then and is nothing now compared to what victims and survivors of far more serious crimes endure when, and after, the crime occurs. And I know that the criminal justice system often fails them in ways that are easier for me to feel in the aftermath of my own attack.
During my career as a criminal defense and civil rights lawyer, I sometimes spoke to victims and survivors of crime during the course of an investigation, at court, or after being sought out. On a few occasions, I was hired by victims or survivors of crime to represent them when they felt the police, the prosecutors, or the courts would not get them justice. And on many occasions I represented people who believed that law enforcement, usually police but sometimes prosecutors as well, had victimized them. The victimization they described was serious—broken bones and scars, concussions, severe sexual harassment and abuse, inadequate and biased or corrupt investigative activity, and unlawful incarceration.
From my talks with victims and survivors before becoming DA and from my own victimization
, I knew that survivors and victims are truly individual. They need and want different things, but there are patterns. They want information. Some want to know why the crime happened. They want details of how it happened, the sequence of events. They want to find the mistake, imagine a different step in that sequence—to envision how a different step would have prevented their loss. They need to stop blaming themselves and their loved ones. Sometimes they want to hear what was endured, although it’s something they have already imagined, with dread, for too long.
They want the perpetrators caught, and every forensic tool used to catch them. They want specifics on the perpetrators. They want to know why the perpetrator harmed them, at least to get more information about the motive for the terrible act—drug turf, money, disrespect, jealousy, dominance—or, more broadly, to be informed about the life of the person who committed the crime—addiction, mental illness, childhood, prior criminal record if any—for their own reasons. They want to know that the perpetrator will not harm them again or others. They want their loved one’s loss to accomplish something good in the world. They want or they reject help with trauma they admit or deny is real. They want closure. Some want retribution, punishment, revenge. Others do not, believing that their wounds will not be healed by wounding others. Often their relationship with investigators gets rocky; often it’s excellent. Some feel abused or manipulated by police or prosecutors; others feel well served. Especially when their loss is recent, sometimes they just want you to listen and to say nothing for a long time, which is about the most difficult and the loudest thing you can say back in a silent room.
During my career in court as a criminal defense attorney, I gleaned how emotionally difficult it must be for a prosecutor to get close enough to victims and survivors to help them, while remaining distant enough to be objective and to keep their oath to do justice for everyone. Prosecutors aren’t supposed to be saviors or avengers. But I understand the prosecutor’s temptation to play savior for one victim and their family, to the exclusion of all else. Defense attorneys are tempted to play savior, too. But “savior” isn’t part of either side’s job description; neither side can afford to ignore their limitations or let their professionalism and objectivity slip away. Prosecutors are generally untrained in addressing trauma, which is best handled by trained victims’ services advocates, at least until prosecutors become well-trained in trauma and can help the victims’ advocates out.
In a truly serious case, the traditional prosecutor’s toolbox for victims and survivors contains only a few tools: obtaining convictions on the highest possible charges, maximizing years of incarceration, and attaining the death penalty are the primary metrics for achieving justice for victims. Trials understandably focus lawyers on the crime itself rather than on society as a whole. Victims and survivors understandably sometimes focus on their loss and the crime itself. Too often, traditional prosecutors have come to view themselves as lawyers for victims and survivors, whose job is to pursue whatever their clients say is fair. Prosecutors, whose job is to uphold the law, need to remember that the law recognizes that victims and survivors are so obviously biased from their connection, love, and trauma, that they are never permitted to be the judge or to serve on a jury in the case where they or their loved one was harmed. Often, they are excluded from serving as jurors on unrelated cases that are merely factually similar to the crime they endured.
Sometimes, traditional prosecutors have become the agents of their victims and survivors for even worse reasons: It’s good politics, with the complicity of a cynical press, which is important if your chief prosecutor’s first priority is their political career rather than the slow work of preventing victimization in the future.
In Philadelphia, where for decades chief prosecutors’ true north has been politics, I watched as assistant district attorneys openly claimed to be lawyers for victims and survivors in court and on the record, which the law makes clear they are not. They are supposed to represent the people, to be for the people. But, for the sake of politics, they left that job—to represent everyone in Philadelphia and to seek justice—to be done (or not) by judges and defense attorneys and juries. The politics is simpler and press coverage more favorable for prosecutors when they simply ask the families of victims what they want. Death penalty? Okay. Drawing and quartering? Okay. A decade in jail or twenty-five years for a drug-addicted burglar’s violation when no one was home? Okay. To be served in a jail with no drug treatment available? Okay.
Taken to its extreme, this type of prosecution and its fawning press coverage are harmful frauds perpetrated on victims and survivors who don’t deserve to be hurt more. When families insist that a lower level of murder is really first degree as a way of expressing how much they value their loved one’s loss and their grief and outrage, prosecutors can either tell them the truth and persist in prosecuting the lower charge, or lie to them and pursue an unjust first-degree charge that they know a judge or jury should reject. The fraud is complete when the prosecutor blames the judge or jury for an actually correct but supposedly unfair outcome. Victims and survivors then leave the criminal justice process having been deceived by a prosecutor into feeling cheated by a judge and jury who did their jobs. By telling victims and their families the truth from the start, prosecutors can ensure that victims and survivors understand that the system actually worked.
We also need to make sure marginalized people can come to us when they are victimized. We should not prosecute sex workers for what they do, or people who suffer from addiction whose only crime is possession of drugs, in part so they can safely report crimes committed against them and can testify for one another when something happens. And we need to provide public health solutions to help them turn away from a life of addiction or sex work because their lives have value, and because doing so makes for fewer victims. We should specially handle cases involving undocumented people so that they can participate in the system with less fear of immigration consequences.
The challenge for justice in our adversarial system is that it can appear that “justice” is not in anyone’s job description. Defense attorneys speak to their clients, learn about their lives, and see the frailty and humanity in them, even when their clients have committed terrible criminal acts. Defense attorneys are seldom allowed to and seldom do speak to victims and survivors and their kin outside of a courtroom, except when they are testifying. Prosecutors speak to victims and survivors of terrible crimes and see the frailty and humanity in them, especially when they have suffered a terrible criminal act. They are seldom allowed to and seldom do speak to defendants and their kin outside a courtroom, when they are testifying. The result in our adversarial system is different knowledge and different loyalty, an inadequately informed other-ization of the opposite side’s most directly affected party.
Ironically, the people who would never be permitted to serve on a jury or to judge a terrible crime are exactly the ones who wrestle behind the scenes with what justice should look like for the victims, survivors, defendants, their families, and society as a whole. Prosecutors and defense attorneys never get to be on the jury or play judge in a case they handled, even later in life when they have different jobs or retire. Because of their bias, loyalty, emotion, and trauma, victims, survivors, defendants, and their kin never get to serve on a jury or be the judge in a matter that directly affects them. This is as it should be in a rational system that is trying to be fair to everyone.
There is no higher calling for a criminal justice system than to focus holistically on what works to prevent future victimization, by doing justice for everyone. That’s a special challenge in an adversarial system where, de facto, the prosecutor’s sympathy lies with the victim and their antipathy is directed to the accused. But the job of the prosecutor is to achieve justice, and that means representing all people in their jurisdiction, which means doing what defense lawyers take no oath to do. Prosecutors, consistent with their oath to seek justice, hav
e to break the adversarial cycle when it comes to the people involved. From the point of view of the state, a just outcome means justice is achieved for all parties in the courtroom and everyone else in society. If the prosecutor’s job is done right, there will be more compassion and more prevention, and in the end we will have fewer victims.
CHAPTER 11
Progressive Prosecutor
You’re gonna have to serve somebody
Well, it may be the devil or it may be the Lord
But you’re gonna have to serve somebody
—Bob Dylan, “Gotta Serve Somebody”
Everywhere I campaigned, in public or in smaller meetings, people wanted to know why and when I chose to run. What was my awakening after so many years? And how did I hope to bring change to the highly entrenched culture of the Philadelphia District Attorney’s Office if I was elected? To me, both questions were asking the same thing.
My years of studying social justice movements in order to defend protesters in court had led me to believe that great social justice movements in America often take about thirty years to succeed, which I defined as winning major battles that achieve their primary goals. The war almost always goes on. In 2017, I figured the movement for criminal justice reform was still in its first decade, with many tumultuous years to go before it could claim success. In any social justice movement attempting to fix and rebuild broken, entrenched institutions, culture change is required and achievable only if personnel embrace the change. Often that requires new hires, as I was repeatedly reminded on the campaign trail. Before we could convince voters we were serious about changing office culture in the Philadelphia DAO, we had to understand and be transparent about how we hoped to change DAO culture.
For the People Page 18