Monday, March 28, 2011
Kudos to Frey and Stranahan on their collaboration at Patterico.com
Kudos to my blogospheric good friend and fellow Texas Law School alum Patrick Frey, the proprietor of Patterico's Pontifications, who has been far more industrious and creative a blogger than I've ever managed to be. He's experimented, with generally good results, with inviting others to post on his bandwidth and under his masthead — and now, in particular, he's invited someone whom he respects, but who has opposite views to Frey's own on a great many issues.
His latest experiment is a collaboration with leftie Lee Stranahan, who will, I'm sure, take a lot of flak from fellow travelers who will think he's bedding the devil; at best, they're likely to view Stranahan the way I view, say, David Brooks or David Frum and their engagement with reflexively left-wing media. (But at worst: How long before someone at dKos slaps him with an "Uncle Tom" label?)
I frankly expect, however, to read — at Patterico.com — some punditry from Stranahan with which I strongly disagree, rather than just critiques of the left from the left. I certainly don't ever expect watered-down mush calculated to avoid offending anyone: That sort of bland and apologetic centrism is certainly not Frey's own style, and I can't imagine that he'd hit it off with anyone, even someone from the left, who embraced it either.
Stranahan's first post is up, and it effectively skewers Arianna Huffington and the HuffPo for their treatment of Andrew Breitbart. Stranahan's first-hand knowledge and liberal credentials add substantially to the post's throw-weight. But I hope, and fully expect, that in some number of his future pieces Stranahan will also provide an intelligent critique of the right on some of the issues that we disagree upon, and I look forward to debating him from time to time. This is a good thing.
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(1) Gregory Koster made the following comment | Mar 29, 2011 1:09:04 AM | Permalink
Dear Mr. Dyer: I'll give Mr. Frey one handclap for this. Really, it's obvious why he offered Stranahan this partnership: Frey's detestation of the press is close to incandescent. Stranahan is beating on the press; ergo the new partnership.
I'd be more impressed if he had offered a place to Radley Balko. Balko's reporting on prosecutorial egregiousness drives Prosecutor Frey crazy, and the only reason Frey isn't incandescent about Balko is that Balko is often---not always---right. You can often tell when Balko is hitting home: Frey will say he "doesn't know enough about" what Balko is writing about to render useful opinions. Fair enough, and quite sensible. But he knows no more about the internal workings of, say, the Los Angeles TIMES, yet he is always fixing his bayonet and yelling "Charge!" at the TIEMS and TIMESmen. He's usually right to do so; he is making reasonable assumptions and using his experience as a man of the world to draw conclusions. But he'll erupt in frenzy if Balko, or anyone else, does the same about prosecutors.
Try this experiment: ask him if Mike Nifong's conduct in the Duke Lacrosse case warrants Mike's being stuffed in the jug. If Frey "doesn't know enough about it" he's being negligent. That case affected and affects prosecutors everywhere, mocking the notion prosecutors are out to "seek justice." as the above link piously claims. If he does "know enough" I don't see how he can argue that Nifong's one day in the jug is enough to restore confidence in North Carolina's prosecutorial system. What's much more likely is an explosion of Frey temper, complete with storming and blasting.
On the depravity of the press, Frey has done much valuable work. But don't overlook the secrets of his success: he understands the deviousness, and disingenousness of the press because said d&d are kin to what all-too-many prosecutors do, day after day, week after week, month after month, year after year.
Oh, Mr. Koster, I think you're wrong about Mr. Frey in general, and wrong about him on Nifong in particular. I can't claim to have read everything he's written, but I recall reading quite a lot (including the "mother-thanker" post) which was entirely and appropriately contemptuous of Nifong — as has been, indeed, every prosecutor and former prosecutor I've ever heard discuss him.
Your opinion of Mr. Balko also considerably exceeds my own, for although I've agreed with him from time to time, I have not found him to be reliable, and I think he's too often become a fairly obvious, but obviously oblivious, tool of criminal defense lawyers who are presenting only their clients' views. (He thinks this is "journalism"; it's not, but I cheerfully admit that at least some of the other stuff Mr. Balko has done on his own does qualify.) I generally don't read Mr. Balko anymore unless it's on something that's been specifically recommended to me; and then I read him with skepticism.
On these matters we shall, I suspect, have to agree to disagree.
(FWIW, I have absolutely no problem with the prosecutorial bonus system in Colorado described in what you linked. What, you want to give them bonuses for losing? Prosecutors do have a unique duty to represent a client — "the people" — whose interests are not defined by winning, but by doing justice. And yes, that's incredibly important, it's incredibly vague, it's subject to abuse, and it is the most terrible system in the world except for every other one that's ever been tried. What laymen too frequently don't understand is that most of that discretion plays out pre-trial. Certainly by the time a prosecutor is starting a trial, he or she should damn well know that the conviction being pursued will further the ends of justice. So yeah, we want them to win the cases they try, and not to lose many at all, because if they are they're erring on the side of trying too many doggy cases. For a DA to use a bonus system to put financial incentives in line with the interests of justice is just fine; so, too, are other traditional means of rewarding convictions, like promotions and even election to district attorney positions.)
(3) Gregory Koster made the following comment | Mar 29, 2011 1:23:33 PM | Permalink
Dear Mr. Dyer: Your description of how you read Balko matches mine of Frey. I will note that if it is wrong for criminal defense lawyers to present only their clients's views in talking to journalists, why isn't it just as bad for prosecutors to do the same? It should even be worse, because unlike any other lawyer, a prosecutor is charged with "seeking justice." I also note that in Balko's pieces you often see some variant of the phrase, "Prosecutor X and his office refused to talk to me." It's dam tough to get both sides of a story if one side refuses to talk to you. It's also true that if this refusal to talk happens again and again, it will tend to color the journalist's views of the subject. This sort of paranoia brought Nixon down, and it isn't doing prosecutors any good either.
Next point: I read the post of Frey's you linked. Unhappily, all the links in his post have gone bad, so I can't see what points he was trying to make. But such posts miss the point. You, who are not a prosecutor, could have written such a post. Even I a layman, could have done so. But what neither of us could have done is called for punishment. It's outrageous that all of Nifong's misconduct should only garner a night in the jug and $500 in fines. The immunity that is draped over prosecutors for their actions is not, and should not be, absolute. Do I mean that Frey should personally have tried Nifong? Not quite. Nothing was stopping him from calling for such a prosecution, a call that would have much more weight than any I, or even you, could make---nothing that is, except the severe career risk such a call would require. There's no help for that kind of risk. As John D. MacDonald wrote: "Integrity is not a productive asset...integrity is not a search for the rewards of integrity." Frey is often harshly contemptuous of LA TIMES reporters and columnists who lie and misrepresent, and stubbornly refuse to admit, let alone correct, their calumnies. He's right to be contemptous. But there's a sizable (in terms of damage done) chunk of prosecutors who act in the same way. There, Frey is silent or stubbornly defensive. He could say that I, a layman, don't really know what it's like. True enough, but Frey isn't a journalist, and he "can't really know what it's like," which doesn't stop him from blasting the TIMES effectively, blasts that reflect great credit to Frey.
What I can do as a layman is read about it. I offer THE PROSECUTORS for your consideration. This book, set quite near Frey's own area of practice, had much food for thought. It horrifed me, but it also sobered me. The pressures on prosecutors are huge. I could never do such a job. But in the end, no prosecutor is press-ganged into the job. This is why I am dismayed by the Colorado system. No I don't want to pay proseuctors to lose. I don't see the need for any sort of monetary bonus or penalty. When tort lawyers do this with contingency fees, in the manner of John Edwards, the Right howls with rage. What makes it OK for prosecutors? "Seeking justice" is difficult enough without money getting in the way. In joining a prosecutor's office, the lawyer is making an implicit bargain: he'll never make the money that, say, a "white-shoe" lawyer will make. But he'll be in cases that make a difference to people in a way that civil law has trouble matching. He'll also be can contribute to the general good in a way that civil law will have trouble matching. There's also a much better chance to rise in politics if you are a prosecutor. Many prosecutors go on to elective office, or to judgeships. How many federal district judges were once United States Attorneys? As an exercise for the student, compare the number of federal judges formerly USAs with the number of judges who were formerly in the Federal Public Defender's office i.e. defense attorneys.
No one is forcing Frey to be a prosecutor. All I am asking is that he turn his gaudy searchlight onto his own trade with the same intensity he turns it on the press. Both trades deserve the same scrutiny. But the career risk to Frey by looking at prosecutors would be ferocious. It's not to be done lightly. But not doing so is a failure of integrity.
Mr. Koster, I didn't say it was "wrong for criminal defense lawyers to present only their clients's views in talking to journalists." To the contrary, in an adversary system, it's exactly their job to do that in court, and sometimes in talking to the press.
The problem is that Mr. Balko, while wearing his journalist hat, climbs on board with the defense team. Prosecutors, who must be more circumspect than defense lawyers in dealing with the press and the public, are frankly wise not to give Mr. Balko material that he can twist against them. Journalists aren't supposed to be advocates, but Mr. Balko is almost never not one; indeed, he's often so poor an advocate that he ignores or misstates opposing positions, which even further detracts from his reliability.
And on the list of the 100 most serious problems currently afflicting the United States, "prosecutorial abuse of discretion in the criminal justice system" is certainly near the bottom of that list, if it makes the list at all. I haven't read the book you link, but the Publishers Weekly short review on that Amazon.com page says:
As Delsohn [the author] sees it, "For all the talk prosecutors like to engage in about how their number-one priority is to seek justice, not just win trials, it's numbers — trials completed, trials won, and trials lost — that mean everything." Despite this somewhat jaded view, the half-dozen cases that Delsohn tracks during the year belie this sentiment. While the verdicts are sometimes imperfect, the overall lesson of the book is that justice is, in the end, usually done.
Did Publisher's Weekly get that wrong? So far as I can observe, winning cases gets prosecutors promoted, but exercising seriously bad judgment at the arrest, charging, or prosecution stages can get them fired and even disbarred. And that's as it should be; but it's also quite rare, again, as it should be.
(5) Gregory Koster made the following comment | Mar 29, 2011 6:01:50 PM | Permalink
Dear Mr. Dyer: I didn't mean to use THE PROSECUTORS as evidence to condemn prosecutors. It was more, "This is a book you might find profitable to read," though you are probably like, with the "to-be-read" pile ever growing.
I think Mr. Delsohn is right, that the system roughly gets more cases right than wrong. Is this good enough? You say that prosecutorial abuse of discretion would likely not make the list of the 100 most serious problems facing the nation. Do you think the Duke Lacrosse men would agree? Or Corey Maye? Or the Amiraults? Or---but I better haul up. I acknowledge that the number of cases of prosecutorial abuse is small---but the impact it has on those who are the victims is sizable. The impact it has on public opinion is even greater. This is why the limp response to the Nifong case is so troubling. Put it another way: do you think the Justice Department's move to dismiss the voter intimidation case against the Black Panthers in Philadelphia, after getting a default judgment against them is harmless prosecutorial error, nothing to worry about, never make the 100 biggest problems list? By itself, perhaps not. But as a sign of rot, it's alarming, and fully merits sirens going off.
Nor do I buy the argument that rogue prosecutors are punished. Scott Harshbarger and Martha Coakley of Amirault fame not only weren't punished but rose and rose, to be blocked by other difficulties. You can't expect the laity to think that disbarment is a severe punishment for deeds, which if done by the laity, result in jail time. I can't see one reason why Nifong isn't in the jug for obstruciton of justice, beyond prosecutorial immunity. Compared to jug time, disbarment seems mild. The case of John Mitchell, Nixon's Atty. Genl. is instructive. He was disbarred, but he didn't let it stop him. He went into business, and died far richer than he had been in his bond lawyer days.
As for, "The problem is that Mr. Balko, while wearing his journalist hat, climbs on board with the defense team. Prosecutors, who must be more circumspect than defense lawyers in dealing with the press and the public, are frankly wise not to give Mr. Balko material that he can twist against them. Journalists aren't supposed to be advocates, but Mr. Balko is almost never not one; indeed, he's often so poor an advocate that he ignores or misstates opposing positions, which even further detracts from his reliability."
you might be right. Could you cite two instances where you think RB goes wrong and why you think so? Might make a good post.
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