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Inside the Politics of Prosecution

In today's tough-on-crime climate, the politics of prosecution make it nearly impossible for prosecutors and judges to aggressively enforce disfavored but critical constitutional protections.
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A few weeks ago, a sharply divided Supreme Court ruled that statements made in the workplace may not actually be protected by the first amendment. The ruling has been criticized as a serious setback for whistleblowers, and it may well be. But Garcetti v. Ceballos says something else too -- about the down and dirty nature of criminal law and the terrifying politics of prosecution. Paradoxically, this recent free speech case, as much as any other, explains one of the essential problems in the criminal justice system -- that in today's tough-on-crime climate, the politics of prosecution make it nearly impossible for prosecutors and judges to aggressively enforce disfavored but critical constitutional protections.

In 1999, in the small-unincorporated community of Basset, not far from La Puente, Los Angeles County Sheriffs came across what they believed was a stolen and stripped pick-up truck. In a sworn affidavit used to obtain a search warrant, the deputies claimed that they followed some tire tracks from the truck up a "driveway" to a house where they discovered contraband. An arrest was made and People v. Cusky was born. As Mr. Cusky's case wound it's way through the criminal justice system, Richard Ceballos, a calendar deputy in the Pomona Branch of the Los Angeles County District Attorney's office decided to investigate the case. When he did, he discovered that the "driveway" was actually a street (which wouldn't have retained tire tracks) and the "house" was actually nine houses. Ceballos came to believe that the Sheriff's deputies had misled the court in order to get the warrant. He wrote a memo to his supervisors recommending that that Cusky's case be dismissed.

Instead, it was Ceballos who nearly was.

After a series of contentious meetings, Ceballos's supervisors not only decided to proceed with the prosecution, they removed Ceballos from the case. Rather than seeing his memo as the honorable decision of a prosecutor ethically bound to report misconduct, Ceballos's actions were seen as traitorous. He was accused of "acting like a public defender," and was demoted, denied a promotion and transferred to a distant office for what he described as some "freeway therapy." More than merely being the basis of Mr. Ceballos's lawsuit, the District Attorney's reaction to Ceballos's memo is an object lesson in the obstacles to doing justice even from within the prosecutor's office.

Prosecutors have a special duty to seek justice rather than convictions. They are sworn not only to uphold the criminal law, but to enforce the constitutional protections that every criminal defendant is entitled to. This fealty to justice is what draws many young lawyers to District Attorney's offices in the first place. Time and time again, I've heard students explain their decision to be prosecutors by insisting that it is easier to do justice from within the system than from the outside. Most of them believe that even young assistant district attorneys will enjoy the discretion to "do the right thing" in the cases they handle. Sadly, the Ceballos case, puts the lie to that naive belief.

The truth is, that those honorable obligations are often subsumed by an overriding political need to appear tough on crime, and the result is a culture in prosecutor's offices that elevates winning convictions and imposing harsh sentences over more nuanced notions of justice. The corrosive effects of this culture touch nearly everyone caught up in it, and after years in the system, it is the rare prosecutor who hasn't been affected. Contrary to the aspirations of most young Assistant DAs, who imagine individual prosecutors crafting innovative and nuanced solutions in criminal cases, most District Attorneys' offices are highly regimented places with a tangle of official policies and almost uniformly strict supervision. In fact young attorneys are given little latitude to deviate from office policy, and are expected not to rock the boat.

By bringing legitimate concerns about the veracity of a search warrant to the attention of supervisors, Richard Ceballos did precisely what we should want prosecutors to do: he valued the integrity of the process above a particular prosecution. Unfortunately, as his treatment at the hand of the Los Angeles County District Attorney's office shows, exposing the failings of the system or detailing deception in the sheriff's department isn't merely disfavored or unpopular but potentially career-ending. Sadly it doesn't take too many examples like Ceballos to effectively squelch dissent. And while it wasn't this chilling effect that the high court addressed in it's first-amendment analysis, it precisely this spectre of callous prosecution disconnected from procedural justice that should concern us all.

And as for Mr. Cusky? Even though Richard Ceballos testified for the defense, Cusky's case was allowed to proceed. He was tried, convicted, and sent to prison.

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