The Presumption of Guilt

The Virtuous Prosecutor Fallacy

People with little experience with our criminal justice system think nothing of spouting off about it in ways that I used to as well but now find ignorant. This would be no big deal except this ignorance is deadly. Because it leads to injustice. Lazy thinking leads to injustice; ask yourself, are you complicit? Have you ever questioned the assumptions you have about our criminal justice system - do you even know where you got them? The reality of my job as a federal criminal defense lawyer forces me to do this every day because those lazy assumptions don’t comport with the cruel reality.

Yesterday I was listening to my favorite philosopher John Searle’s U.C. Berkeley lectures on the Philosophy of Language. He leaves everyone else in the dust on this subject and makes most current philosophers of law look pathetic because they’re still struggling with J.L. Austin’s How to Do Things With Words and Wittgenstein’s Philosophical Investigations. Philosophy of Language has advanced far beyond the discussions I read of it in what passes for Philosophy of Law these days; I’ll save why that matters for another post. This post is about something Searle said that I find exceedingly stupid. A “howler” as he would call it. And given how intellectually ruthless he is in calling out bullshit I’m calling bullshit on this point he made while straying from his lane. Because it’s a common viewpoint.

As an aside in one of his lectures Searle says that if someone’s indicted for a crime it usually means they’re guilty because there are so many guilty people in the world for prosecutors to choose from there’s no need for them to go after the innocent. This is a variation of the canard one regularly hears in my business that prosecutors never bring a case they can’t win. And it’s a view that most people hold - that prosecutors would never bring a case against an innocent person.

Except they do, all the time. The existence of the Innocence Project evidences this. I’ve spoken with people who spent decades in jail for crimes they didn’t commit, and have clients who were framed with planted evidence. Usually, what’s driving this injustice is what drives a lot of us - ambition. DOJ keeps statistics on the number of convictions they rack up as if Justice is like a batting average or a sport’s team win/loss record. I recall coming across a document in discovery on a case where the prosecutors were more concerned with getting credit for their prosecution than with whether they’d gotten it right. Prosecutors are vain and ambitious creatures just like us, and when you have a bloated bureaucracy like DOJ where you have more law enforcement agents than there are crimes to go around you get manufactured, vanity prosecutions.

This brings me to another part of Searle’s howler. That there’s an abundance of criminals out there. I disagree. By definition, a criminal is someone who violates the law, so in a trivial sense what Searle says is true because almost everyone is in violation of some poorly drafted, misguided, ignorant, or ancient criminal law every day. That’s what the classic “Three Felonies a Day” is about; read it and get back to me if you doubt this point. And given that common law checks on expansive prosecutions were gutted during the New Deal’s “government will save us all zeal” you have a host of malleable statutes and rules promulgated under them. Like the wire and bank fraud statutes that remove, in derogation of the common law, the requirement of reliance on the fraud by any victim. Or the SEC’s rule 10(b)(5). The mindset behind these radical 20th-century revisions to our traditional criminal law is that prosecutors can be trusted with these unrestrained statutes. That’s false.

Most people aren’t criminals. And most of those who are under the law have a back story you should consider before you damn them from your privileged, uncritical perch. Judge not lest ye be judged. And yes, there are bad people out there, and many of them need to be locked up for our safety. I’m not making an argument against law enforcement. I’m arguing, however, that often ambitious prosecutors are just as bad as those criminals. Because just like those criminals, they victimize innocent people for their own personal gain. The current system incentivizes this - successful prosecutors get corner office Big Law partnerships that pay high six figures to start or cushy jobs at the companies they gave government contracts to while a prosecutor. Recently I was at a Big Law party where I marveled at all the AUSAs and Federal Law Clerks there to pay homage to my friend who’d become a prominent Big Law white-collar defense lawyer.

The philosophy of the Bill of Rights is not “trust the government.” On the contrary, it recognizes that the government often abuses its prosecutorial power. Read it if you doubt me on that point. (When was the last time you did?) I’m not arguing against the government or law enforcement here. I’m arguing against treating prosecutors as if they’re virtuous creatures who do no wrong. That’s naive and idiotic, and John Searle would never tolerate this kind of childish thinking when it comes to the Philosophy of Language, so I call bullshit on his naive philosophy of law. And, in his honor, I name his mistake the “Fallacy of the Virtuous Prosecutor.”