Straining to Defend Martha Coakley

Sunday, January 17th, 2010

Commenting on Martha Coakley’s role in the Gerald Amirault case, M. LeBlanc at Bitch, Ph.D. writes:

So, what’s the moral status of advocating that someone who is likely innocent remain in prison? It’s a tough question. As far as I known, it’s something that’s routinely done by prosecutors everywhere…

I don’t have a major problem with prosecutors who lobby for people to serve more time in prison, whether it’s at the indictment, sentencing, or parole stage. My main concern is with systems that are overly deferential to prosecutors, that disadvantage defendants, and that make it extremely difficult for convicts to make the case for their own parole. I do think the criminal justice world would be a lot more just if more prosecutors declined to prosecute more often. Particularly in high-profile or embattled cases, where it seems that all evidence points to innocence, but the prosecutors insist on, for example, re-trying a case after a trial has been thrown out years after the fact by a judge. You see this all the time: prosecutors’ stubborn insistence that they’ve got the right guy in the face of overwhelming evidence.

Nevertheless, being a prosecutor who is stalwart when presented with evidence of innocence or prosecutorial misconduct is so common as to be banal. Which is why I think her lobbying for Amirault’s continued incarceration isn’t, in itself, enough to make her a morally suspect choice for senator…

A lot of the criticism of Coakley’s involvement in the Amirault case seems to center on the fact that she was clearly stepping up the pressure on the governor for her own political gain. Being seen as a law-and-order sort is almost uniformly a political advantage, no matter where you hold office. Hardly anyone ever fails to be elected because they were too hard on criminals. Take, for example, Joe Arpaio (extremely popular!) vs. Michael Dukakis (Willie Horton!). But it’s not really enough to blame politicians for exploiting this tendency of Americans to thirst for more and more justice-blood. And I’m not particularly moved by allegations that people are behaving in politicized ways. Justice is political, and the more we recognize and appreciate that, the better we can be honest with ourselves as a society and government about how we want to proceed.

I’m floored by this reaction. A leftist could make a respectable argument that even though Coakley was grievously out of bounds in the Amirault case the need for her vote on health care reform, filibuster prevention, and other issues is more important than the troubling decisions she made as a prosecutor. A leftist could also plausibly argue that when it comes to actually making criminal justice policy as a senator, Coakley isn’t likely to be any worse than her opponent, and therefore she deserves support because she’s more progressive on everything else.

But LeBlanc isn’t arguing either of those positions. She’s arguing something far more repugnant: She’s conceding that the Amirault case was a travesty of justice, and that Coakley was wrong for her extraordinary efforts to keep Gerald Amiralut in prison. But she’s then arguing that Coakley deserves a pass specifically for her actions in the Amirault case, anyway, because all prosecutors do it, and because it’s what Coakley had to do to accumulate political power and move on to higher office.

That is one hellaciously disturbing statement of values. LeBlanc is either arguing that she believes the accumulation of power and advancement of one’s career is more important than justice—more important than ensuring that innocent people don’t rot behind bars—or that she’s willing to give a pass to politicians who do.

Actually, not just a pass, but a promotion.

I’m also not convinced LeBlanc’s assumptions about the political pressures Coakley faced in the Amirault case are accurate. The parole board voted 5-0 to free Gerald Amirault in 1999. That came three years after Dorothy Rabinowtiz won her Pulitzer Prize for commentary for her columns exposing the case against the Amiraults and other sex abuse injustices. Recovered memory therapy; the leading, repeated, and persistent questioning of children; and the various other tactics prosecutors used in the sex abuse hysteria cases of the 1980s and early 1990s had been exposed and debunked. Coakley had plenty of political cover to do the right thing in this case.

LeBlanc is right that generally speaking, prosecutors fight like hell to protect convictions, even when there’s overwhelming evidence of innocence. But not all of them do. There are plenty of cases where prosecutors have dropped charges and freed the wrongly convicted. Dallas County District Attorney Craig Watkins is actively seeking out innocence cases, and he’s doing it in a jurisdiction that’s a hell of a lot more conservative than Middlesex, Massachusetts. Perhaps it’s too much to expect Coakley to have Watkins’ moral courage. But then, she isn’t being criticized for not going as far as someone like Watkins. She’s being criticized for going well above and beyond the call of duty the other way, including fighting outside the courtroom by orchestrating a PR campaign to persuade then-Gov. Jane Swift to keep Amirault in prison. Coakley wasn’t bowing to political pressure, she was creating it.

Broadly speaking, LeBlanc’s also right that “hardly anyone ever fails to be elected becasue they were too hard on criminals.” But I don’t know of a single incident in which a prosecutor suffered bad publicity or was attacked politically for failing to fight the release of an innocent person. “Tough on crime” positions on parole, sentencing, the death penalty, and so on are policy positions on which reasonable people can disagree. Obstinacy in the face of overwhelming evidence of someone’s innocence is a moral failing, regardless of motivation.

Moreover, Coakley’s also being criticized for failing to bring charges against a man who sexually assaulted his young niece with a curling iron. Coakley’s successor put him away for two life terms. Why would Coakley—so aware of the political pressure to be tough on crime, so protective of her own ambition for higher office, and who carefully cultivated an image for herself as a defender of children—not throw the book at a man accused of raping a toddler with a curling iron? I’m just guessing here, but it may have something to do with the fact that Keith Winfield was also a police officer. That suggests a blind allegiance to law enforcement that we should find troubling in a U.S. Senator who will be making and voting on criminal justice policy.

There’s a broader point here, too. Even the left—even the far left—seems to find it difficult to hold bad prosecutors accountable, at least when they happen to be Democrats. So long as prosecutors are rewarded for aggressiveness and never punished when they overstep, we’ll continue to see the very sort of behavior LeBlanc claims to find troubling.

It’s worth noting that the person who actually convicted the Amiraults was Coakley’s predecessor in the Middlesex County DA’s office, Scott Harshbarger. How was Harshbarger punished for his mistakes? For starters, like Coakley, he went on to become Massachusetts Attorney General. In 1998, well after the injustice in the Amirault case was well known both in and out of Massachusetts, he was the Democratic nominee for governor. He was later hired to head up the liberal interest group Common Cause. Of course, there’s also Janet Reno, who went on to become U.S. attorney general, despite her own history of dubious sex abuse convictions.

I’m glad LeBlanc believes “the criminal justice world would be a lot more just if more prosecutors declined to prosecute more often,” and that she’s troubled by “prosecutors’ stubborn insistence that they’ve got the right guy in the face of overwhelming evidence.” But frankly, she’s part of the problem. If even a leftist blogger like LeBlanc is unwilling to hold overly aggressive prosecutors accountable, is willing to overlook a grave injustices so long as they’re committed out of political ambition, and can later support the same bad actors’ election to higher office, how does she expect the criminal justice system’s flawed incentive structure to change?

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43 Responses to “Straining to Defend Martha Coakley”

  1. #1 |  Marty | 

    Mary Beth, Catherine Hannaway, Coakley… being a prosecutor seems to attract women with the wrong questionable morals.

  2. #2 |  SJE | 

    So, we will not pass moral judgement because we expect prosecutors to act immorally. WTF? This is worse than the “only following orders” defense of concentration camp guards (which didnt work), but arguing that the actions of concentration camp commandants are morally neutral.

  3. #3 |  Kevin R.C. O'Brien | 

    I’m just guessing here, but it may have something to do with the fact that Keith Winfield was also a police officer.

    Radley, the Winfield case was not at all inexplicable. There was copious evidence that Winfield raped a girl with a hot curling iron. But against that, the fact that Winfield’s father, a Carpenters Union official, was arranging endorsements, campaign workers, and union money for (then-county-DA) Coakley’s run for State AG. This was the belief of Larry Frisoli, the attorney for the victim’s family, who was able to resuscitate the case after Coakley’s nearly successful effort to bury it.

    The subsequent AG, who was not indebted to the baby-raper’s dad, did secure a conviction and a prison sentence for Winfield.

    The case is reminiscent of the Amirault case in its inexplicable horror and alleged irrational behavior, but unlike it, in that there was substantial physical evidence of the crime.

    Big Government has a letter from Frank Frisoli (Larry’s brother; Larry has died since he fought Coakley to try to get this case prosecuted).

    http://biggovernment.com/2010/01/15/coakley-and-the-curling-iron-rapist-part-ii-lawyers-seeking-justice-for-rape-victims/

    Also, Coakley spiked every public-corruption case that came to her. Only the Feds have been willing to prosecute the fallen angels of the Mass. legislature — who are many, considering that it has been a stronghold of the Angiulo and Bulger crime families. Mass. Senate presidents and House leaders can be divided into crooks who were convicted and crooks who beat the rap. (Well, the last Senate president is merely indicted at this point, so he could go either way. He WAS a Coakley supporter before he had to concentrate on his personal problems).

  4. #4 |  Michael Chaney | 

    Given that leftism is, at its core, the worship of the state, I’m not sure why LeBlanc’s position would be surprising.

  5. #5 |  Stephen | 

    Wrong is wrong, even if everybody else is doing it. Are we trying to improve things or stick with the status quo?

  6. #6 |  DBN | 

    Given that leftism is, at its core, the worship of the state, I’m not sure why LeBlanc’s position would be surprising.

    Letting a politician get away with murder as long as they support your pet issue(s) isn’t really specific to the political left or right.

  7. #7 |  Dave Krueger | 

    Coakley’s behavior is inexcusable in the Fells Acre case because, by the time she became active in it (1999), similar cases all over the country were being exposed for the witch hunts that they were. She had the benefit of knowing from other cases that the children’s interviews, virtually the only evidence against the defendants, were totally contaminated by the interviewers (and it wasn’t simply a matter of “leading questions”).

    So, knowing all this, she still actively campaigned against the Amiraults simply because it benefited her politically. She got ahead by stepping on the bodies of the innocents she helped to crucify. The saddest part of all is that she is not an exception. She epitomizes the mentality of all of those who latched onto these cases as an all-or-nothing, once-in-a-lifetime ticket to the top. Actual innocence was not going to stand in their way.

    So, what’s the moral status of advocating that someone who is likely innocent remain in prison? It’s a tough question.

    No, it’s not. Only someone cut from the same cloth as the likes of these prosecutors could even make such a dumb fucking statement.

    Prosecutors should be good at what they do. We want them tough on crime. But there first has to be a crime and in these cases there wasn’t.

    The day care abuse scandal should have destroyed the career of everyone on the prosecution side who knew (or should have known) what was on those interview tapes and didn’t speak out.

  8. #8 |  Frank | 

    If she gets elected, one can always hope someone finds child porn on her office PC…

  9. #9 |  Mattocracy | 

    The same people made excuses for Ronald Burris, who worked to keep an innocent man in prison in Illinois. Liberal politicians and pundits only give lip service to equality under the criminal code. They always sell liberal voters short on these issues like the GOP does with fiscal issues.

  10. #10 |  MacK | 

    What may be a ray of light in the dark tunnel of her possible election.

    http://thecaucus.blogs.nytimes.com/2010/01/16/coakley-on-schilling-a-yankee-fan/

    In New England you do not dis on a Boston sports hero!
    This will probably do more to harm her then anything we could dream of.

  11. #11 |  Mike H | 

    It still boggles the mind that any of this took place. The original Massachusetts witch hysteria can be attributed to things like greed, misogyny, religious fervour, even ergot poisoning, but here…. what possible excuse – other than naked ambition and a desire to fast-track nascent political careers – can these people offer? Where’s the shame?

  12. #12 |  ktc2 | 

    I once commented to a judge who patiently explained to me that he thought his decision was morally repugnant but that he was sworn to “follow the law” that his statement reminded me a lot of the “just following orders” rationalization.

    Trust me, don’t try this. It didn’t end well for me.

  13. #13 |  InMD | 

    I think this, along with the nomination and appointment of Justice Sotomayor, is just another exhibit in the long line of evidence tending to show that neither of the two big parties are committed to sane policy in the criminal justice arena. While politicians and other officials deserve their share of the blame I think the ultimate responsibility lies with the American citizenry which seems uniquely susceptible to being whipped into hysteria over crime by our leaders, the media, victims rights organizations, and general ignorance. After all, irrational harshness is what the people of this country demand and it is thus we shouldn’t be surprised when elected leaders provide it.

    The existence of prosecutors like Coakley is unfortunate and lamentable. The fact that citizens from all ends of the political spectrum continually put such people in positions of power despite ample evidence of misconduct and injustice is the real tragedy.

  14. #14 |  hattio | 

    Balko,
    I think of myself as generally liberal or at least left of center, but I can’t agree with you more. I hope Coakley loses, and I say that knowing full well it could mean the end of health care reform, which I think is this country’s most dire need (even above reforming our bloodthirsty mentality on criminal punishment).

  15. #15 |  Judas Peckerwood | 

    This isn’t a left or right issue, it’s about bullshit power-worship, a condition common in political scum across the ideological spectrum. And to a lot of their constituents, I might add.

  16. #16 |  DPirate | 

    If Coakley has shown no character as a DA (“caved to political pressure”), then Coakley will show no character in the legislature.

    At any rate, the comments about “the Left”, above, are silly. As a liberal, meaning I value liberty, I personally associate authoritarianism with the right, but authoritarian people exist on both sides of the American dichotomy.

  17. #17 |  ChrisD | 

    “Morality is simply the attitude we adopt towards people whom we personally dislike.” -Oscar Wilde

    M. LeBlanc likes Martha Coakley and wants her to win b/c she’s a Dem. She’ll make any argument that will advance Coakley’s cause. It is as simple, and reprehensible, as that.

  18. #18 |  Cornellian | 

    How about the argument that someone with her view of the criminal justice system is probably in less of a position to do harm as a US senator than as the AG of a large state. Ergo we should elect her to get her out of the AG job.

    I’m not saying it’s a great argument, but if we’re grasping at straws here, it’s better than nothing.

  19. #19 |  Gonzo | 

    Blood…boiling…

    Still, it’s lucky that I don’t vote. I’d be even more frustrated right now.

  20. #20 |  Dan | 

    (I agree with you, but…) The world would be a much more just place if criminal defense lawyers who knew their clients were guilty stopped overzealously defending them. But that would be a dereliction of duty. Maybe prosecutors have a similar such duty to prosecute cases that come before them to the best of their ability; to discriminate so much would be to usurp the role of judge.

  21. #21 |  Whim | 

    Quoting from the article:

    “So, what’s the moral status of advocating that someone who is likely innocent remain in prison? It’s a tough question. As far as I known, it’s something that’s routinely done by prosecutors everywhere…”

    Everyone seems to missing the simple reason.

    Prosecuting Attorneys develop a God Complex. They act like they are God, dispensing justice.

    And, why are we surprised, that when the evidence later shows that they are keeping an innocent person in prison, they fight EVEN HARDER to keep them there?

    Simple reason….God is never wrong.

  22. #22 |  SJE | 

    ktc”I once commented to a judge who patiently explained to me that he thought his decision was morally repugnant but that he was sworn to “follow the law” that his statement reminded me a lot of the “just following orders” rationalization.”

    Judges and prosecutors have different discretionary powers. A judge can do a lot, but it must be within the law. A prosecutor can decide what cases to bring before the judge and has the political ability to argue for someone’s release (usually a judge should not do that).

  23. #23 |  Joe | 

    #20 | Dan | January 17th, 2010 at 7:14 pm
    (I agree with you, but…) The world would be a much more just place if criminal defense lawyers who knew their clients were guilty stopped overzealously defending them. But that would be a dereliction of duty. Maybe prosecutors have a similar such duty to prosecute cases that come before them to the best of their ability; to discriminate so much would be to usurp the role of judge.

    I do not believe the duties are the same. While it is an adversarial system, a criminal defense attorney is supposed to be a zealous advocate for his or her client and prosecutor is supposed to seek justice. Think about that. And typically it is a jury, not a judge who decides guilt and innocence.

  24. #24 |  InMD | 

    At #20

    Actually you’re a bit incorrect in your assumptions. While I can’t speak in detail to every state I can say that typically every jurisdiction’s rules of professional conduct place a much greater burden on seeking justice and using discretion on the office of prosecutor than they do on other attorneys. In Maryland for example there are specific rules placed on prosecutors that are not placed on attorneys in other positions. A defense attorney’s role is indeed to see acquittal at all costs within the law. Prosecutors on the other hand are legally charged with a higher burden of ethical conduct and they must be held to it. If prosecutors consider that unfair then I’d suggest a different line of employment. The problem is that our fellow citizens tend to reward rule benders and breakers at the ballot box for the sake of being tough on crime and state bar associations are (wrongly) loathe to take up the issue.

  25. #25 |  Joe | 

    I would have more respect for prosecutors if they welcomed when injustices are reversed. Why doesn’t Patterico and other prosecutors come out for The Innocence Project? Why is Patterico not joining Radley and Glenn Reynolds in trying to free Cory Maye? Why?

  26. #26 |  Andrew S. | 

    So, what’s the moral status of advocating that someone who is likely innocent remain in prison? It’s a tough question.

    It’s not a tough question, actually. If you truly think it is a tough question, you’re probably such a sociopath that I question your ability to function in society.

  27. #27 |  Joe | 

    Andrew Sullivan is going crazy trying to justify Martha Coakley. He admits she did some evil things as a proseuctor, but says Brown is even more evil. Why? No real explanation, other than him being a Republican. Other than he might–gasp–cut taxes.

    In Andrew’s mind republicans are not serious in their drive to cut taxes. Apparently being a conservative in Andrew Sullivan’s mind is promoting a massive expansion of entitlements and more taxes. How is this conservative? It is a mystery!

    And Andrew wonders why people think he is nuts.

    But these quotes are priceless:

    I live in Newton, Mass, an incredibly liberal city, and I see Brown signs all over the place. Last week before the shit really started to hit the fan, I was driving through Needham, Mass and I swear there was a Brown sign on every other lawn. I was stunned. To add insult to injury, I have a Coakley bumper sticker on my car and last week while in Wellesley, Mass I approached my car in a parking lot and I heard 2 electricians making fun of my sticker and of Martha. I could not believe it….the sticker had been on my car since October and all of the sudden I felt like I should take it off because people are ca-raaaazyyy!

    I drove from Concord to Worcester today. We saw 6 or 7 Brown signs for every Coakley sign, maybe more. That’s pretty consistent with what I’ve seen in metrowest in the last few days. She is NOT popular around here. And yes, I agree that she’ll be ensconced for 20 years or more if she wins. She’s the anointed one and we’re all supposed to just fall in line. Oops.

  28. #28 |  Bernard | 

    I’d love to have a universe with a rewind button to run a test and see just how far people will stretch their ethical code to justify the actions of their own party.

    If Barack Obama ate a child on live tv tomorrow, I’m willing to bet that a sizable portion of the democratic party would be writing the next day that this was a valiant effort to enroll Satan in improving the economy.

  29. #29 |  Boyd Durkin | 

    Good glimpse of the future where more innocent people will be in jail. Just as bad will be innocent people in jail because they are guilty of laws that shouldn’t be laws.

  30. #30 |  Matt D | 

    And Brown’s positions on criminal justice issues and civil liberties are…

  31. #31 |  Blawg Review #247 | a public defender | 

    […] as a prosecutor, specifically in her dealing with the Amirault/Fells Acre sex abuse cases. Balko writes again, mystified by the justifications offered in support of Coakley’s witch hunts. Walter Olson […]

  32. #32 |  ravenshrike | 

    On the balance of probabilities? Much better than Coakley’s. Because really, it would be highly unlikely to be as bad or worse.

  33. #33 |  Carlyle Moulton | 

    What thought processes go on in the minds of law and order types result in them fighting to keep obviously innocent people in prison?

    This is my speculation, they know that the processes of the law are fallible but believe that their is an overwhelming public interest in everyone believing or pretending to believe that they have a zero error rate. Thus they fight to hold on to every conviction no matter how obviously it is flawed and support others who do the same thing.

  34. #34 |  Matt D | 

    On the balance of probabilities? Much better than Coakley’s. Because really, it would be highly unlikely to be as bad or worse.

    Well that’s certainly an informed viewpoint.

  35. #35 |  Big Chief | 

    #30 & 34 – I think you’ve missed the point of the post. This isn’t about Brown vs. Coakley, but about the bizarre and morally bankrupt approach LeBlanc’s takes to excuse Coakley immoral actions. Radley states in his first paragraph that raising your question (Brown vs. Coakley on justice issues) would have been a valid approach.

  36. #36 |  Steve Verdon | 

    What a cupid stunt. Can we find out if we can revoke her PhD?

  37. #37 |  witless chum | 

    I take Leblanc to be saying that we can’t really expect better from prosecutors and politicians, because that’s how almost all of them behave. It’d be nice if that wasn’t true.

    But I’d be Radley’s hypothetical leftist if I lived in Mass. Politics is not about whether she’s a good person, or even that she’s not a straight-up monster. It’s about getting someone who’ll vote my way more often in senate. (Or the White House, the idea of Obama as a leftist is the province of people who aren’t looking clearly at the evidence, whether that’s left-wing Obama voters or Glenn Beck)

    I think any other view of electoral politics, doubly-so in this country, is impractical. And I say this as someone who cast his first two presidential votes for Ross Perot and Ralph Nader.

  38. #38 |  Laertes | 

    “M. LeBlanc likes Martha Coakley and wants her to win b/c she’s a Dem. She’ll make any argument that will advance Coakley’s cause. It is as simple, and reprehensible, as that.”

    I just don’t get this. I’m a big fat liberal myself, and if I lived in Mass I’d vote for Coakley, but you wouldn’t hear me spewing some silly bullshit about how it’s not so bad that she’s a law-and-order douchebag.

    I think what’s going on here is that Bitch’s purity is an important part of her self-conception and she’s therefore unable to admit that she’s supporting a terribly flawed candidate on purely pragmatic grounds. Her only options then are to support the Republican or convince herself, somehow, that Coakley isn’t all that bad.

  39. #39 |  Jake Witmer | 

    Very bad things. But of course, the pressures placed on our legal system virtually gaurantee the outcome of injustice. You see, the top tier of our legal system – the citizen jury- has been rendered ineffectual.
    1) Voir dire (1850 onward)- allows the prosecutor to stack the jury full of people who agree with the law, no matter how unjust it is.
    2) Bar “Licensing of lawyers” membership (1830s onward) – removes logical people who have contempt for mala prohibita from service as lawyers, and also allows judges to threaten lawyers with the loss of their livelihood, should any lawyer argue vehemently against the validity of the law, or the judge’s instructions
    3) The loss of free speech in court (1800s onward, ramped up in 1960s) Liberal use, and over reaching of “contempt of court” citations. The silencing of constitutional defenses in court, even pro-se ones. The issuance of “motions in limine” (gag orders) against the defense. If we don’t have freedom of speech in courts for our own defense, then “freedom of speech” is meaningless.
    4) Judicial instruction of the jury (1895 onward, post “Sparf and Hansen v. USA”). The jury is now instructed to obey the law, rather than vote their conscience, as they were prior to 1895.

    The lawschools churn out tons of prosecutors for every defense attorney. Why? You can be brainless and have the judge defend you, if you are a prosecutor. Most judges are former prosecutors, or at least former attorneys (who therefore buy into the idea that allegiance to any law is a good thing, as opposed to allegiance to justice and logic.) Moreover, prosecutors have the economic pressure of a flow of unlimited tax dollars into their wallets in these socialist times — a “gaurantee” no defense attorney has.

    As George Carlin once said: “If you wanted to go about cleaning up the world with a gun, you could do a lot worse than a whole bunch of dead prosecutors.”

    LOL …There was much truth in the man.

  40. #40 |  Justin | 

    She’s basically arguing that we shouldn’t hate the player, but rather we should hate the game.

  41. #41 |  The decline and fall. | antimeria | 

    […] Scott Brown beat Martha Coakley for Ted Kennedy’s old Senate seat–Coakley’s misconduct as a prosecutor was staggering, and I couldn’t have voted for her under any circumstances–but because […]

  42. #42 |  supercat | 

    //This is my speculation, they know that the processes of the law are fallible but believe that their is an overwhelming public interest in everyone believing or pretending to believe that they have a zero error rate.//

    I think there’s more to it than that. They believe that if they can successfully bury all evidence that a person is innocent, then the person will in fact BE guilty. Thus, the more apparent it is that convict didn’t actually commit the crime of which he was accused, the harder the prosecution must fight to ensure that the convict will still be guilty.

  43. #43 |  Brown vs. Coakley | Penn Political Review | 

    […] from the perspective of anyone on the internet, a formidable contingent of civil libertarians has decided that Coakley has been one of the most disastrous prosecutors in memory. The left-blogosphere skirts […]

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