Is Prosecutorial Misconduct a Product of a “Few Bad Apples,” or is the Barrel Mostly Rotten?

Wednesday, August 29th, 2012

Whenever I read articles dealing with prosecutorial misconduct, I invariably find a statement similar to this: “Most U.S. prosecutors are ethical and try to do the right thing, but there are a few who engage in unethical behavior.” In other words, every barrel has a few rotten apples, but most are just fine.

I used to believe that myself, but no longer. In fact, given what we know about human nature and the functions of boundaries, when prosecutors know that they face no consequences for their own behavior no matter how illegal or despicable it might be, we can expect stories like what recently was posted on this blog.

A bit of history is instructive here. For all of the talk of 1776 and the Constitution, the intellectuals, politicians, and voters of the United States essentially abandoned the constitutional republic that had existed since 1787 and embraced what this country is today: a Progressive democracy. One cannot understand modern law (and especially federal criminal law) and the role of bureaucrats and elected officials without understanding the tenets of Progressivism.

The U.S. Constitution and its Declaration of Independence were written on the premise that individuals are flawed characters that need any number of boundaries in order to keep baser instincts in check. Call it Original Sin or just the way things are, but deep down, most of us realize that we are capable of doing a lot of evil if no one or no thing stops us. Furthermore, there seems to be no limit to the human capacity of excusing or justifying the wrongness of our deeds.

Many of our original institutions were built upon this notion. On the “private” side, we have markets in which consumers can put even the most powerful companies out of business (i.e. General Motors) by refusing to purchase their products. Because government institutions are not consumer-driven entities (voters are not the same as consumers), they have to face different constraints, since governments are given a monopoly on deadly force. Because government agents can do an immense amount of harm to others while acting under the “color of law,” it is imperative that those agents be given consistent boundaries in order to keep them from using their legal positions to deny rights to others.

Progressives, on the other hand, believed that people were advancing through the evolutionary process, and that formal education and the “professionalizing” of various occupations would help create individuals who not only would be able to identify what was the “public good,” but also would carry out actions that would promote public welfare. Not only did they embrace legal institutions that would empower people who worked within government to impose their will whenever they believed it necessary to do so, but they also dismantled many of the boundaries that the law had created to keep government in check because, after all, educated and professional people did not need such constraints.

Living in an age where many, if not most, occupations require a license or some sort of formal training in order for people to engage in providing such services, we forget that occupational licensing and the establishment of credentials a “proof” of expertise and, more important, professional competence, really was a product of the Progressive Era. For example, before law schools became the powerful and influential and prestigious entities that they are today, at one time many lawyers did not even go to law school. Instead, people who wished to practice law would work as apprentices under practicing lawyers to learn their occupation.

Such a state of affairs would seem foreign to us, given that in our political economy, one cannot even cut hair without approval from a state-run agency.The bureaucratic hoops that exist for nearly every occupation might be formidable, but to many of us, they also are the New Normal. In fact, many people could not imagine a political economy in which many people from whom they purchase goods and services were NOT state licensed or approved by an official agency.

There are some among us who are True Believers in this system, those who believe that state-empowered agents, when given proper training and guidance, generally will do the right thing. Furthermore, because individuals outside of the legal system lack the expertise and good sense to be able to understand the law and how to apply it, society then must depend upon the “professionals” who will be well-trained and will have the proper educational and occupational credentials.

In other words, the people in the system really don’t need constraints because their professionalism and their training will ensure that they already know beforehand where the edge of the cliff might be. Such a system of selection, I have seen it argued, ensures that most of the people who become prosecutors are competent (they passed law school and the BAR exam) and ethical (they took at least one ethics class in law school), so nothing else is needed.

Obviously, we are dealing with a huge clash in how people regard human nature. On one side, we have the “good people” (prosecutors) going after the “bad people” (anyone arrested and charged with a crime). Because the “bad people” are so bad, we must give extraordinary tools to those who are performing the public service. Yes, it is true that every once in a while, a public servant becomes overzealous in a good cause and either stretches the law or takes some liberty with the truth.

Like many others, I would like to believe that the rash of prosecutorial misconduct that infects our courts today is just the product of overzealous people who sometimes get carried away going after the bad guys. However, I would be believing a lie if I were to say that is what is happening.

No, what is happening is much darker. First, it is true that most people in the system are guilty, and I would not dispute that point. Second, the actual number of truly innocent people is relatively small compared to the truly guilty, and I have no doubt that the “I am a hammer and you are a nail” syndrome takes effect in prosecutorial circles as it would elsewhere in a bureaucratic system.

But the cynicism I have witnessed in cases of actual innocence, from Janet Reno’s false child molestation prosecutions of 30 years ago to Mike Nifong’s cynical pursuit of rape charges against three Duke lacrosse players, charges he knew were false, to what I witnessed in Tonya Craft’s trial in 2010, tells me that something much deeper is happening. Don’t forget that Reno was rewarded by being named U.S. Attorney General (from where she touched off the biggest U.S. Government domestic massacre since Wounded Knee in 1890). Furthermore, when Nifong was spouting off in his interviews and when he was declaring he had no doubt of the players’ guilt, prosecutors across the country lined up in support of him. The forsook him only after he was caught red-handed in a lie during a December 15, 2006, hearing.

The Duke case was one in which the falsity of the charges was transparent from the beginning. We were expected to believe that three young men could beat a woman for thirty minutes, rape her, ejaculate on her, force her to have oral sex, and then not leave on speck of DNA? And U.S. prosecutors went along with that nonsense? Are we dealing with people who are so stupid that they cannot even understand the basic laws of time and space?

For that matter, was Janet Reno so utterly dense that she actually could believe that an adult could stick knives and even swords into the rectums of little children and not leave even a solitary mark? That adults in day care centers could be molesting children literally all day and no one who came into the place actually witnessed these terrible acts. And no one was missing the proverbial child who had been microwaved to death?

That a person who could believe this nonsense would be named the Attorney General of the United States tells us more about the state of American politicians than anything else. (Hillary Clinton claimed that Reno was good on “children’s issues.” Reno was so good that she managed to massacre a number of youngsters just a couple months after taking office.)

Furthermore, if Michael Nifong was a “rogue prosecutor,” then why did so many prosecutors speak on his behalf in the early days of the case? As Jonathan Turley noted in a column in the Washington Post, why in the world is someone like Nancy Grace, a former prosecutor who now is a legal commentator, become respected for her views on the law? He writes:

Consider the career of Nancy Grace. Before becoming a CNN and Court TV anchor, she was a notorious prosecutor in Alabama. In a blistering 2005 federal appeals opinion, Judge William H. Pryor Jr., a conservative former Alabama attorney general, found that Grace had “played fast and loose” with core ethical rules in a 1990 triple-murder case. Like Nifong, Grace was accused of not disclosing critical evidence (the existence of other suspects) as well as knowingly permitting a detective to testify falsely under oath. The Georgia Supreme Court also reprimanded her for withholding evidence and for making improper statements in a 1997 arson and murder case. The court overturned the conviction in that case and found that Grace’s behavior “demonstrated her disregard of the notions of due process and fairness and was inexcusable.” She faced similar claims in other cases.

You might have expected Grace to suffer the same fate as Nifong. Instead, she has her own show on CNN, and the network celebrates her as “one of television’s most respected legal analysts.” On TV, she displays the same style she had in the courtroom. (In the Duke case, her presumed-guilty approach was evident early on, when she declared: “I’m so glad they didn’t miss a lacrosse game over a little thing like gang rape.”)

The Grace effect is not lost on aspiring young prosecutors who struggle to outdo one another as camera-ready, take-no-prisoners avengers of justice. Grace’s controversial career also shows how prosecutors can routinely push the envelope without fear of any professional consequences. Often this does not mean violating an ethics rule, but using legally valid charges toward unjust ends.

So, why do they do it? They do it because they can, and because no one tells them they can’t. Nancy Grace is exposed as a liar and a cheat, so she gets her own TV show and lots of wealth. If Grace had been honest, does anyone think she would be a celebrity?

Indeed, for most prosecutors, crime pays and it pays quite well. Robert Frost, in “Mending Wall,” writes of his neighbor who says, “Good fences make good neighbors.”

Good fences also would make for better police and prosecutors. Unfortunately, they don’t exist and the walls that are there constantly are torn down by people who claim we don’t need them at all.

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49 Responses to “Is Prosecutorial Misconduct a Product of a “Few Bad Apples,” or is the Barrel Mostly Rotten?”

  1. #1 |  Ryan P | 

    There’s a case in Collin County (Texas) right now in which it appears that the prosecution (or the police) decided to play a little fast and loose with their ethical duties. A Plano police detective testified that that it would be impossible for a particular alternate suspect to have made it from the scene of the crime to his job in another town in the 84 minutes that electronic evidence would seem to give him.

    Later, a private investigator hired by the defense testified that she made the trip well within the 84 minute range (so not impossible) and also testified that she had seen a videotape made by police that showed them making the trip in 77 minutes.

    Apparently the tape was not handed over to the defense by the prosecution (I have no idea how the private investigator saw it).

    Now just because someone else could have committed the crime doesn’t mean they did, and there’s reportedly lots of other evidence against the man on trial. But to have a witness testify under oath that something is “impossible” when it isn’t and then have it come out that there’s apparently a tape made by the very same police that wasn’t turned over showing that it’s not impossible… it’s just hiding evidence and cheating basically because they know they can.

  2. #2 |  pesky | 

    I like the reference to my favorite poem by Frost, but you know the poem is about how barriers between people are bad, right? In Mending Wall “good fences make good neighbors” is repeated by the speaker with sarcasm. The poem is about how walls are unnecessary — the exact opposite of your point here (which I support).

  3. #3 |  JC | 

    Two points:

    1) A prosecutor is judged on his “success rate” – to wit the percentage of cases resulting in guilty verdicts (a rather small percentage) of plea bargains (by far the larger portion. This has nothing to do with the validity oif the case, or justice being served. This is always a big selling point – “He’s tough on DWI, with a 100% success rate”. Often oin prejured testimony from police and evidence of dubious quality. “She’s tough on deadbeat dads! She sent 5000 of them to Jail!” where they accrue greater debt, lose jobs, and become even less able to cover support payments.

    2) They’re not fighting against the first team. The State as prosecutor has fiscal strength limited only by the power to tax. The marginal cost to the State to appear in court to request a reset is zero. To the Defendant, the cosrt is the price of the lawyer (if not the PD), plus a day’s work missed, if on bond or release, and if not then further time in durance vile. If the case is big enough, than the Satte can impose RICO standards, and force the rich Defendant into penury. One will notice that those standards tend to be invoked AFTER the Defendant has already spent large sums of money for representation billed by the hour. The attorney gets stiffed, and is in the future less than willing to take such cases. Bring on the warm beer – we’ve got a chilling effect here.

    OK, let’s make it 3 points.

    3) The corpus of law is now of such a monumental volume that it is literally impossible for the professional, much less the layman, to keep abreast. The standard of Mens Rea – that there must be a criminal intent, has gone by the wayside, replaced by “ignorance of the law is no excuse”.

    How so, when the law is such an ass that it can no longer be known, much less harnessed?

  4. #4 |  Bergman | 

    The problem with the Living Constitution theory that is so essential to the Progressive agenda, is that if all you need to do to amend the constitution is change a definition in a dictionary, why would there need to be an intricate process built into the constitution for making amendments?

  5. #5 |  el coronado | 

    Hey now, don’t be so hard on Janet “Butcher” Reno. Oh sure, she DID “touch off the biggest US government domestic massacre since Wounded Knee in 1890”. Yassuh, she sure did. BUT! She **took responsibility** for it! I know – I saw the speech. She stood right there and said, “I accept the responsibility. The responsibility is mine. I. Me. *I* done it!”

    Then she continued serving in her position as AG for the next 8 years, while Congefs and The People sat there with their thumbs up their asses and watched ‘Friends’.

  6. #6 |  Nancy Lebovitz | 

    At least these days, the problem of unleashed government seems to be coming at least as much from the right as the left.

    If you don’t want to do my research for me, I understand, but I’ve been wondering whether the forensics lab which exonerated the Duke lacrosse players was reliable. How could you tell?

  7. #7 |  William Anderson | 

    Hi, Nancy! If anything, the private forensics lab that tested the material was looking hard for anything it could find, as its president, Brian Meehan, had openly told Nifong that he WANTED his business in that case. This lab specialized in YSTR testing, which is extremely sensitive.

    The only thing it “found” was a false fingernail found in the trash can of the bathroom where Crystal and her other stripper, Kim, sat for nearly 30 minutes. Kim testified that Crystal did her false nails while they sat there. The nail found in the trash can had the DNA profile of 14 lacrosse players, including David Evans (one of the indicted) and the other two captains who lived in the house. The profile was quite weak and easily could have been explained by DNA transfer since people had access to the can.

    Interestingly, neither Collin Finnerty nor Reade Seligmann had their DNA profiles on that nail. The nail itself was not damaged nor did it have any of the substance on it that would have showed it had been attached to Crystal. Nonetheless, this was the nail that Nancy Grace and Wendy Murphy and others declared was the “proof” of rape. Grace and Murphy both declared that Evans’s “flesh” was found “under the nails” of Crystal Mangum. That was a lie, but both of those people lie a lot, as readers of this blog know.

    The state crime lab first found no DNA profiles of any of the players on Crystal (but found DNA of a number of other men, although Crystal claimed she had not had sex for over a week before the party). That lab later was cited for incompetence and false conclusions, but those conclusions always had been IN FAVOR OF THE PROSECUTION. In other words, even the NCSBI, which was known to cook evidence for prosecutors, could not cook this one.

    Nifong received the evidence from the state lab on March 27. One of his police investigators told him that Crystal could not identify anyone, and Nifong noted that DNA had not given them anything at all. Faced with that, Nifong told the officer, “We’re fucked!” He then told the officer to find any information — anything — that could keep the case alive.

    On that day, Nifong began his string of more than 70 media interviews in which he claimed to have a “mountain of evidence” of a rape and information on who did it. He did not release the DNA results to the attorneys for the players until April 10, and then declared that DNA did not matter. The New York Times followed suit and trotted out Peter Neufeld — yes, THAT Peter Neufeld — who promptly declared that DNA was not important and that the absence of DNA in that case was meaningless.

    Yet, Crystal’s description of the alleged attack and rape would have meant that the boys would have had to have been wearing space suits and body condoms, except she told the investigators the players weren’t wearing condoms.

    But, Neufeld was able to keep the whole scam alive, which is why I do not hold him to any standard of credibility. He had a chance to explain to the NYT readers of the nature of DNA and instead, he helped a newspaper continue its agenda and he helped to prop up a corrupt prosecutor. Neufeld, in my view, proved to me that he is a man with an agenda, and if facts don’t fit his agenda, then the facts must be ignored.

  8. #8 |  Mairead | 

    A bit of history is instructive here. For all of the talk of 1776 and the Constitution, the intellectuals, politicians, and voters of the United States essentially abandoned the constitutional republic that had existed since 1787 and embraced what this country is today: a Progressive democracy. One cannot understand modern law (and especially federal criminal law) and the role of bureaucrats and elected officials without understanding the tenets of Progressivism.

    Gee, I hope this is the opening to an alternate-world story. If it’s meant to describe the one we actually live in, it’s so far off that it’s scary.

    We do not live in a democracy. We live in a plutocratic oligarchy: a comparatively few hyper-wealthy people decide everything of substance. If we lived in a democracy, our society would have the characteristics identified by Prof. Robert A. Dahl:

    1. Every adult member of the population would have the substantive opportunity to gain an enlightened understanding of what’s going on, what might need to be solved and why, and the merits or otherwise of the prospective solutions.

    2. Every adult etc. would have the substantively equal right to pick the problems that need solutions, get them on the agenda, and argue for whatever solutions they favor.

    3. Every adult etc. would have the substantively equal right to vote for their favored solutions, with nobody’s vote having more weight than anyone else’s.

    I hope it’s obvious to everyone that this is not how it works in the USA.

    And, not coincidentally, the government is very far from being “progressive” in any sense that I understand the term.

    If it were “progressive”, every year would bring more real freedoms and security, and less exploitation and violence. It should be obvious that that’s not happening. The US government is “progressive” only in the same non-sense that crypto-monarchies like North Korea are “people’s democratic socialist republic”s.

  9. #9 |  RobZ | 

    If “Progressives” were the problem, then one would expect that the prosecutors in the least “Progressive” states would be better than the prosecutors in the most “Progressive” states.

  10. #10 |  Bobby Black | 

    Spot on.
    And $%^& Tha Police.

  11. #11 |  Matthew | 


    It is ever the wont of the simple to attempt to join an otherwise rational conversation with the trite, “Actually, you’ve got it all wrong.” None but the willfully naive have ever believe that democracy is some pure state of uncoerced, aggregate will, and that anything short of that doesn’t merit the term. Even the Greeks, who, arguably, invented democracy, realized how fraught with peril and tyrrany such a system was. We do live in “a democracy”, to the degree that anyone ever has or will. That it is imperfect and characterized by disuniform and polarized political influence is not only par for the course, but guaranteed by human nature and the design of the system. If you want to engage in fanciful whimsy about a system predicated on altruistic and selfless automata, have a gander at the various flavors of collectivism.

    Moreover, while it remains chic to assert that people of stratospheric wealth and power control our society, such nonsense is far from clever or original; intellectual quitters have been resorting to this sort of deus ex machina excuse for society’s shortcomings for centuries. For these people, the reality that those of political influence are granted that influence by the enfranchised populace is anathema; no, if average members of society were given their head, everything would be swell, so the problems must come from something else. Such buffoons are often heard to complain that money controls politics, when they are the very credulous nincompoops on whom political advertising and rhetoric are so effective. How dare politicians use the whips readily handed to them by willing rubes!

    Finally, as is the main point of the article, the most damning aspect of Progressivism is that it is predicated upon fundamentally unsound doctrine. Specifically, the misguided belief in Man’s natural purity leads them to draw horrifically and tragically flawed conclusions about how society should be governed, leading to a total lack of gain in “real freedoms and security”, and more, not less, “exploitation and violence”, as you’ve identified. That our society is *not* “progressive” as the self-styled Progressives insist it ought to be is the whole point of the author’s post.

  12. #12 |  William Anderson | 

    Unfortunately, most people are not aware of what Progressivism has meant, politically and socially speaking. For example, most Americans believe that it was the work of blue-nosed, Bible-thumping fundamentalists that brought in Prohibition, but the most influential people in that movement were Progressives like Woodrow Wilson, Jane Addams, Herbert Croly, and others. Furthermore, World War I brought a war Prohibitionism into effect by limiting the direction of harvested grain and fruits via the federal government.

    Both people on the Left and the Right bought into Progressivism, and that still is the case today. In many ways, Texas is as Progressive as is New York one looks at the workings of state and local governments there. Unfortunately, people tend to see terms like Progressivism and then resort to outright stereotypes.

    For example, most people today who consider themselves to be Progressives regard Margaret Sanger as a hero. Yet, Sanger herself was a racist who believed blacks were inferior and needed to be “improved” via Eugenics. It is quite ironic to see a black president running an ad that predicts all sorts of horrors if government funding to Planned Parenthood is lowered or eliminated. Yet, the founder of PP would have believed President Obama to have been of an inferior species.

    The Progressive Movement was much more widespread than what most would believe. Furthermore, the oligarchy to which one person referred also is a product of that era, as the whole concept of “public-private partnerships” came about, as though these would be “enlightened” relationships rather than the outright cronyism that we see.

    Progressives believed that politics could be cured of the kinds of petty evils and symbiotic relationships that actually abound. Again, they misread human nature.

  13. #13 |  Dante | 

    “So why do they do it? Because they can”

    From the lowest street cop all the way up to President of the United States, public servants engage in misconduct for the exact same reason.

    Because they can, and because there is no punishment if they do. Our public servants are completely unnaccountable to the public.

    Who are they serving, again?

  14. #14 |  Matthew | 

    Even were the Humanist right, that the human creature is evolving toward a rational and altruistic state, the Progressive is yet wrong, that the human creature has already done so.

  15. #15 |  William Anderson | 

    By the way, if you want to see how “Progressive” New York operates, then take a hard look at the Martin Tankleff case. The state was every bit as dishonest and tenacious in defending the undefendable as you would see in Texas. If Robz actually wants to believe that New York prosecutors and police are honest and that they don’t engage in misconduct, then I have a nice big bridge in Brooklyn to sell to him.

  16. #16 |  C. S. P. Schofield | 

    The Progressives are just one more in a long line of self-selected elites who sincerely (and sickeningly) believe that they were put upon earth by Divine Providence to order the lives of the masses. We fought a Civil War against one set (the Plantation Aristocrats), and it is a work of massive spin that there are still people who discuss that episode as if States Rights had anything to do with it.

    Nancy; I’m not all that sure that much State Overreach can legitimately be ascribed to the Conservative Right. A LOT can be put to the (dis)credit of the Political Class in the Republican Party, which isn’t the same thing, and more can be laid at the feet of opportunists like Jerry “I’m a Christian, I don’t have to follow the teachings of Christ” Falwell. Actual Conservatives are making a fight for the Republican Party, and are making some headway. What they will be like if they actually get any power in their grubby paws remains to be seen.

    The Left, on the other hand, has been abusing the power of the State with vast enthusiasm for several decades now, if not longer. A lot of Progressive Left ideas that do a lot of damage have become so much a part of the accepted norm that we don’t realize that they are a point of view at all. U.N. style “if we can just talk out our differences I’m sure that we can work out our differences” diplomacy is a case in point. People consider this to be bedrock reality, in spite of its miserable record when dealing with opportunistic psychos and unwashed fanatics. “Leave our people and our friends alone or we thump you” is seen as dangerously reactionary, in spite of the fact that it is the ultimate reality underneath all diplomacy.

    I don’t like the Lawr ‘n Owada Right, but I think that if we could get back to the Rule of Law ideal (and prosecute shady police and prosecutors like the criminals they are) that would be a truer expression of the Political Right. I hesitate to condemn Gays, as many Righties do not, but I do think that if Gays want to be accepted then playing Shock the Squares with the enthusiasm that they often show is a tactical mistake.

    I don’t trust the Right with political power. I don’t trust ANYONE with political power. But I think it is a little early to see any real degree of equality in terms of the abuse of power between Right and Left in this country.

  17. #17 |  William Anderson | 

    As for the Progressives, don’t forget that it was the most Progressive mainstream paper of them all, the New York Times, which most vociferously promoted Michael Nifong. Does anyone really believe that the NYT would have done so without the particular racial and social angle the story provided?

    In other words, even though the charges were transparently false, the NYT promoted them because it is first and foremost a mouthpiece for Progressives in this country.

  18. #18 |  C. S. P. Schofield | 

    William Anderson,

    I am more inclined to the view that the NYT coverage, disgraceful as it was, was driven by the assumptions of the reporters and editors. They did not write the stories to promote a worldview, they wrote the stories because their worldview told them that this was The Truth.

    In a way, in fact, this is worse. Reporters writing to promote a bias is inevitable. Reporters being too stupid to see the blindingly obvious …..

  19. #19 |  Darrell Hart | 

    “One bad apple spoils the whole bunch.” No one can produce a prosecutor in any office in this country that I cannot make a felony case against; no one.

  20. #20 |  Andrew S. | 

    The Country Walk abuse case (the aforementioned Janet Reno case) occurred right around the corner from where I lived. I was 6 or 7 years old when the arrests occurred (it was some time in 1984). I actually remember riding my bike around the neighborhood (my parents were so terrible that they allowed me to do such things out of their sight at such a tender young age) and seeing just a throng of police cars in front of a house. Thought it had to do with drugs.

    We moved out of Country Walk shortly thereafter (not related). 8 year old me (at the time of the trial) started hearing details of the case on the news and thought that it sounded like absolute impossible BS.

    The way the case was handled was particularly egregious. They more or less tortured one of the suspects into confessing and testifying against her husband. Also used crap like hypnotic suggestion (excuse me… um… ‘recovered memories’) from her.

    Yet somehow after that I still believed in the goodness of prosecutors and police for another 20 years. Apparently I wasn’t a very bright child. Or young adult.

  21. #21 |  Nancy Lebovitz | 

    William Anderson, thanks for the details about Nifong and the forensics lab.

    Woodrow Wilson was another progressive who was a notable racist.

    Who would you folks say was responsible for Jim Crow?

  22. #22 |  Inkberrow | 

    Nifong is no more and no less a rogue outlier than Todd Akin.

  23. #23 |  Charlie O | 

    I vote mostly rotten.

  24. #24 |  CyniCAl | 

    Minor quibble, it was not immediately obvious that William Anderson was the author of this post, but I did figure it out with the first Nifong reference. May want to put some kind of attribution on the main page, just saying. Otherwise, I agreed with it wholeheartedly.

  25. #25 |  Weird Willy | 

    I really would like to see more details provided regarding the atrocious behavior of Janet Reno in Florida, for it really would flesh out the premise that prosecutors often knowingly seek to destroy people they know to be innocent in their pursuit of professional gain. A good example of this is the case of Bobby Fijnje, a boy whom Reno tried as an adult for sexual improprieties alleged to have occurred when he was 13 years old. Bobby was a volunteer in the child care center at a church where his father was an elder, and was accused of having conducted a massive, programmatic campaign of child penetration and mutilation on its premises. These accusations began after a mother of a three-year old girl observed her child behaving “abnormally,” and took her to an investigative therapist to discover the cause of her aberrant behavior. The investigator essentially told the child over a periof of eight weeks that she knew that someone had done some “terrible things” to her, and demanded that she provide the details. The investigator eventually coaxed and coached the child into stating that Bobby had molested her, and Bobby was arrested and brought in for interrogation.

    A frail child, and an insulin-dependent diabetic, Bobby was locked in a police interrogation cell for 7-8 hours, being denied food and insulin until he would confess. After yielding to his interrogators’ demands, Bobby quickly made a generic statement of his guilt, and was only then allowed to see his parents. His parents gave him food and insulin, whereupon Bobby immediately ceased cooperating with his inquisitors and retracted his undetailed “confession.” Bobby’s initial accuser also retracted her accusation, stating that Bobby had once innocently and unintentionally startled or frightened her, and nothing more. Undaunted, Janet Reno personally took charge of Bobby’s prosecution, and expanded the criminal investigation into an enormous farce.

    Pending more than $3 million, Reno cast an investigative net that was designed to snare more accusers of Bobby “The Mass Molester” Fijnje. Her investigators were eventually able to persuade young “victims” to state that Bobby had abducted them and driven them to remote locations to perform bizarre acts of copulation, digital palpitation, and sexual mutilation on them. According to these children, Bobby had transported them to the Moon and Pluto, had locked them in cages where lions had eaten their genitals, had removed and defaced their genitals with knives, had imprisoned them in caves while he made them touch his own genitals, etc. Fortunately, it turns out that these pre-schoolers were not wholly without benefaction or assistance during these harrowing ordeals; on one occasion, Mighty Mouse showed up to defeat Bobby physically, while on another a passerby gave one of the children a magic potion that transformed him into a giant, which allowed him to trounce Bobby on his own. On and on it went, each tale being more fantastically contrived and obviously elicited by “therapists” than the one that preceded it. At no time could Janet Reno or any sane adult have believed this passel of childish nonsense, yet she proceeded with her multi-million dollar trial of Bobby as an adult anyway.

    Predictably, Bobby was acquitted on all counts following a relatively brief jury deliberation. What was Reno’s response? She issued a public statement through a spokesperson asserting that the prosecution was valid, Bobby Frijnje was clearly guilty, and she would have been able to prove that to a jury if only she could have spent enough money on the case (apparently, more than $3 million just wasn’t enough).

    Janet Reno is the lowest of the low, the slime that grows upon slime, and unfortunately she typifies the sort of self-righteous, power hungry trash that self-selects for a career as a prosecutor.

  26. #26 |  Nancy Lebovitz | 

    C.S.P., while gay pride marches are still held, the big win for gays has been the respectability-enhancing goals of marriage and of being visibly employed in the military.

    The use of shock is a complicated tactical question. I think that sometimes it works and sometimes it doesn’t.

  27. #27 |  Bill Wells | 

    (Try #2)

    I was accused of sexually abusing a teen. This girl, who had a long history of making false accusations of abuse, told the cops two contradictory stories of what happened. When my per-uh-prosecutor interviewed the girl, the girl told the prosecutor a story that diverged wildly from her previous two stories.

    The girl had been given a sexual assault examination. The prosecutor didn’t get its results.

    When my public pretend-uh-defender realized that he wasn’t likely to succeed in coercing me into pleading guilty to assaulting the girl, he asked the prosecutor if she’d consider a kidnapping plea. She refused, saying that the facts of the case did not add up to a kidnapping. But, a week later, when I told my lawyer that I flatly would not plead guilty to sexual assault, he and the prosecutor agreed that I could plead guilty to kidnapping.

    So, when was the prosecutor lying? When she told my lawyer that the facts did not add up to kidnapping? Or when she told the court during my plea hearing that I had violated the kidnapping statute?

    What’s truly sick about my case isn’t the perverted defense lawyer and prosecutor, it’s that the courts knew that they had violated the law and then themselves violated the law in order to let the lawyers get away with it.

    (I really should put up the pdf of the district court’s ruling somewhere. It’s a shocker. I’d give its citation but it’s unpublished.)

  28. #28 |  RobZ | 

    I didn’t claim that any state’s prosecutors were better than any other state’s.

    I merely claimed that if progressives were responsible, we ought to be able to observer which states were most progressive and from that, we ought to be able to determine which states had the worst prosecutors.

    Personally, I don’t see any correlation at all.

  29. #29 |  RobZ | 

    “Who would you folks say was responsible for Jim Crow?”

    Long dead southern Democrats, mostly.

  30. #30 |  el coronado | 

    Getting back to Reno – I find it interesting that while it was obvious she was a dirty, mendacious, rogue prosecutor who crapped on rules, law & decency when it suited her purposes….. no one ever seems to comment or draw nefarious conclusions from the fact that scummy behavior *got her a big fat promotion.*

    Nor are aspersions ever cast upon the grinning, mendacious, sexually predatory sociopath who figured a POS like Reno would make a _fine_ US AG. Then got her the job. Then kept her in that job, even after the Waco savagery & murders and her subsequent years of obvious incompetence/political toadying proved her to be the single worst AG of the 20th century. And *still* no substantive complaints from lawyers & the media. Odd….might it have something to do with her party affiliation, I wonder? Which then brings us to Holder….but that’s another story.

  31. #31 |  William Anderson | 


    Actually, I am working on a paper right now that deals with Jim Crow, the Progressives, and the spate of economic regulation that occurred during that era, and it ties them together. My theme is that despite Vann Woodward’s assertion that racism was the “blind spot” of Progressives, we find that much of the economic regulation and policymaking of that time very much promoted and undergirded the Jim Crow laws.

    Most of the southern Democrats that stood in favor of these laws also were well-known Progressives, including Sen. Ben “Pitchfork” Tillman of South Carolina. Woodward has a very hard time wrapping his mind around the fact that his economic heroes also were the very promoters of Jim Crow. (I’m waiting for my co-author to get his part done; sometimes, my patience wears thin!)

    The Bobby Finje case truly was evil, and, of course, the local media just demonized that child. The press always kissed Janet Reno’s evil posterior no matter how brutal and dishonest she was. Interestingly, I put Dorothy Rabinowitz onto Reno and her predations in 1996, and in her investigation, she found the Grant Snowden case and ultimately helped get him freed.

    I will tell all of you that I am so very weary of the brutality we see every day that involves our vaunted “public servants.” I’m thankful for people who are able to see through this deliberate fog.

  32. #32 |  Mairead | 

    10 Matthew: Even the Greeks, who, arguably, invented democracy, realized how fraught with peril and tyrrany such a system was. We do live in “a democracy”, to the degree that anyone ever has or will. That it is imperfect and characterized by disuniform and polarized political influence is not only par for the course, but guaranteed by human nature and the design of the system

    You packed a lot of misinformation into that post, Matthew. I’ll address only the most egregious bits:

    The Greeks only provided the name. Actual democracies existed long before the Greek civilisation appeared, and still exist today. Any anthro text will tell you about them, so I won’t bother doing citations.

    There are also nation-states today that come closer to democracy than the US does: Britain elects an MP for every 80K people, Germany and Canada for every 120K (roughly). In France even the worst district only had 188K people before the recent shuffle. In the US, its 600K — between 3X and 7.5X worse than those 4 countries.

    Those countries also don’t restrict who can stand for office, and don’t let the dominant party control access to the ballot or the ballot box—all anti-democratic characteristics of the US system.

    “Human nature” is one of the most misunderstood and put-upon concepts in the world. The “nature” of a species consists of those characteristics present in all unimpaired members of the species, not the characteristics individuals choose to assert for their ideological convenience.

    The only characteristic that seems to be unique to humans is our adaptability. We are able to completely change our entire behavioral repertoire within our individual lifespans.

    As far as we know, that’s the sum and substance of our distinctly “human nature”: we are able to adapt to our environment more completely and quickly than any other species.

    The fact that you assert your approval of plutocracy and oligarchy shows that, whatever your politics are, Matthew, they are not libertarian.

  33. #33 |  C. S. P. Schofield | 


    I think that playing shock the squares is going to come back to haunt Gays; they are vulnerable on a broad variety of public health fronts and parading about in shocking costume pleases only those who already agree with them and annoys the rest. Annoyed people are less likely to stick to strict civil rights principles.

    General observation;

    Racism isn’t a “blind spot” of progressives. It is a place where their smug superiority shows through. They feel that way about most people, regardless of skin color. They think that anyone who doesn’t meet their narrow standards is semi-evolved and in need of constant guidance. Skin color hardly enters into it. They may USE racism to gain control of one segment of the population by appealing to the stupid ideas of another segment.

  34. #34 |  Dave Krueger | 

    There are two kinds of prosecutor: the bad ones and those who cover for the bad ones.

  35. #35 |  Ron | 

    I’m no fan of Nancy Grace but I’m pretty sure the article contains an error about her — she was a prosecutor in Georgia, not Alabama. If she’d been in Alabama it wouldn’t make any sense for the Georgia state supreme court to overturn one of her convictions.

    The reason a former Alabama AG decided one of her cases is that there must have been a habeas petition to the federal court system and Alabama and Georgia are both in the 11th federal circuit.

  36. #36 |  William Anderson | 

    She was in Georgia. I’m afraid that Mr. Turley was mistaken, but the substance of what he wrote was true, which is why I used it. And I agree with Dave that because prosecutors cover for one another, all are implicated in wrongdoing. These are people who witness crimes, but refuse to report them.

  37. #37 |  Matthew | 


    I’ll only reply once more. Here you go.

    There is an infinite gradation of degree of any aspect of anyone’s definition of “democracy” that can be found by any number of names throughout recorded history. You are choosing, in order to pad your list of objections, to quibble over semantics and ambiguous definitions. I did say “arguably”, because I figured someone would be pedant enough to want to object. I was right. Regardless, within the context of modern political discourse, using commonly accepted understandings of such an ambiguous and undefinable term, the most identifiable source of what would commonly be accepted to be “democracy” comes out of ancient Athens. In case it helps you, consensus != voting != democracy.

    I have never claimed, suggested, implied, or even supposed that the United States, presently or historically, is the most (or least) “democratic” society. Moreover, all of the nations you cited *do* restrict candidacy and suffrage, and *do* grant special authority and power to the party most dominant at any point in time. Whether they do to a greater or lesser degree than any other nation is immaterial to the discussion. You are, by necessary implication, denying these supposed paragons of democracy the very label with your “come closer” qualification, so I really can’t understand what you’re on about.

    “Human nature” is a metonym for the observable (and, by some worldviews, intrinsic) characteristics of human motivation and behavior. Anyone’s view of human nature is a fundamental aspect of their worldview, with most people treating it as a necessary inference of their presuppositions, rather than understanding it as a fundamental driver of their opinions. For example, the collectivist must needs believe humans are altruistic, because it is required by their determination to endorse collectivism, whereas a free market economist recognizes that humans are fundamentally self-interested and formulates economic policy accounting explicitly and intentionally for this reality. It is a matter of primacy: do you obstinately justify your predetermined conclusions, or do you base your conclusions on empirical evidence? Whatever the case, the preponderance of the evidence points to a clear and overwhelming default state of self-interest, which is only overcome on a case-by-case basis by willful subversion of the same.

    Finally, your closing pot-shot is poorly-aimed. Not only did I give no excuse to suppose that I approve of the condition of society in the United States, but I made it very clear to any reader paying attention how thoroughly I disapprove of the system that we simpletons have created by our own designs.

    Do try harder next time. Ta-ta.

  38. #38 |  Steve D | 

    ‘But the cynicism I have witnessed in cases of actual innocence…’

    There will always be cases of injustice since humans are not perfect, but the cynicism is what really worries me, as well.

    Is there statistical evidence that prosecutor misconduct is increasing? What about in other countries like Europe? What is their experience?

  39. #39 |  Steve D | 

    ‘I disapprove of the system that we simpletons have created by our own designs.’

    If your point is that we have created this mess, I couldn’t agree more. If you give people power, why then be surprised when they abuse it?

  40. #40 |  Bergman | 

    Even if it were only a few bad apples…

    Given the way conspiracy, collusion and accomplices-after-the-fact statutes and case law function, and that it’s almost impossible to be unaware of what goes on in your corporate culture and office grapevine, there literally CAN’T be any good apples in the barrel.

    Any potential good apples have a choice to make. They can collude, conspire and look the other way…and become bad apples themselves. Or they can blow a whistle and wind up fired, blacklisted, disbarred, committed to a psychiatric hospital, charged with crimes, or any combination for their troubles.

    The system was set up to keep bad apples out, but the bad apples have corrupted things so badly, that now the system works just as hard to remove any good apples as soon as they are uncovered (and make the decision not to become corrupt).

  41. #41 |  David Harmon | 

    The basic issue here can be illustrated by a common but serious error that Mr. Anderson makes in his very first paragraph, before attempting to arrgue against it: “In other words, every barrel has a few rotten apples, but most are just fine.”

    The problem with that sentence is that it completely reverses the original metaphor it purports to use — the original is “One bad apple spoils the whole barrel”. This is literally true — if you have a barrel or pile of apples, you need to regularly pick out the ones that are starting to rot, or the gases they produce will cause other apples to rot. It’s also a basic metaphorical truth: If you don’t remove and punish corrupt officials, the corruption spreads, and people start accepting it as “normal”.

    This sort of spreading corruption has happened before in American history, but the current version has nothing to do with “the Progressives” — indeed, it’s the neo-conservative administrations that have aggressively protected and enculturated corruption in politics and finance. One could argue that the root error, the mistake from which all else followed, was the bargain by which Richard Nixon was pardoned after Watergate… but certainly, things got much worse during the Reagan-Bush era, and the culture of corruption was further aggravated by Shrub’s reign of error.

  42. #42 |  Nuremburgher | 

    A joke:

    Q: If you found three people dangling by their necks from lamp-posts, a prosecutor, a narc, and a snitch, which would you cut down first?

    A: The dead one. The others just need a tug on the leg.

    Seeeeriously, though: As worthless a practice as it seems to be, I still vote as long as there are third party or wacko independents on the ballot, or the occasional judicial candidate who endorses jury discretion. But one thing I ALWAYS do is vote against anyone who has been a prosecutor.

  43. #43 |  Leon Wolfeson | 

    @38 – Bear in mind most European countries work on a different criminal legal system, Civil Law, derived (at long remove) from Roman law. It’s inquisitorial rather than adversarial, and has far less regard for caselaw.

    In England/Wales (Scotland has “Scots law”, which is…er…unique) we do have a Common Law system like yours. And our prosecutors are a civil service, their chain of command with the police only meets up at cabinet level in the government.

    It means there’s no need to be seen as “tough on crime”, and indeed the Crown Prosecution Service works a lot better than either the police or the judiciary.

    They have a series of tests they use before prosecuting, one of which is “in the public interest”. Which things like…oh…two fifteen year olds having sex will NOT pass unless one’s in a position of official authority over the other.

  44. #44 |  Nancy Lebovitz | 

    CSP, one more angle on “shock the straights” and homosexuals, aside from that I think they’re using less of those tactics.

    Well-calibrated shock moves the Overton window– it means that less shocking behavior becomes the new normal.

    It’s like the merchant who offers you a very expensive item so that moderately expensive items look cheaper.

    So, the way it’s worked so far in practice is that Gay Pride parades mean that gay marriage by ordinary people looks a lot less weird.

    Prediction is difficult, especially about the future. It’s entirely possible that there will be backlash against gays, but I can’t fault them for trying to get decent treatment.

  45. #45 |  Joseph | 

    My god. “A good prosecutor can convict a guilty person; a GREAT prosecutor can convict an innocent person.”

  46. #46 |  Militant Libertarian » Is Prosecutorial Misconduct a Product of a “Few Bad Apples,” or is the Barrel Mostly Rotten? | 

    […] from The Agitator […]

  47. #47 |  kyl | 

    This article neglected to discuss the fact that many “prosecutors” have designs on higher office, often governorships. Just because a prosecutor never got caught doesn’t mean they conducted themselves honestly at all times. I think there should be a law barring them from seeking higher office.

    Nancy Grace? What a foul individual. Does anyone else realize her TV show depends on human suffering? It’s always about someone missing or murdered, and she uses those tragedies for personal gain. And once SHE decides who is guilty, she proceeds to conduct a one-sided trial and convict them on her show. No wonder we hate lawyers!

  48. #48 |  Jess | 

    I appreciate the mention of original sin: quite apropos. An appreciation for this bedrock truth of human existence may be the one good thing I got from my decades stuck in church. There are no good guys, and any system that claims to be based on the good actions of good people is a lie from the top to the bottom. This isn’t a perfect world, but I’d prefer that most human communication and coordination be organized by systems that make no such risible claim.

  49. #49 |  Links #113 « The Honest Courtesan | 

    […] excellent William Anderson article explains how the “progressive” philosophy led inevitably to horrible prosecutorial abuses in the United States, such as federal prosecutors using an 88-year-old communist law from […]