When you can get away with it
It's been awhile since I last posted. I've had the fall from hell, spending more time in hospitals at funerals than I have in the last 15 years combined. I realized just how skewed things had become when we were together following a funeral and my brother in law pointed out we were comparing the merits of the food at different hospitals. It doesn't look like the new year is going to be much better, but you have to start somewhere.
There is nothing that elevates my blood pressure more than stories of police and prosecutor misconduct. A recent case of the Texarkana Court of Appeals is a prime example. In Woodruff v. State you had a a familiar scene - a high profile murder case that took awhile to solve. So instead of talking to witnesses, evaluating evidence and other traditional means of investigation, the District Attorney decided to go straight to the source; he instructed the sheriff to record the calls between the defendant and his attorney. Needless to say, when the attorneys discovered what was going on the you know what hit the fan. They filed a motion to recuse the District Attorney's office, and moved to suppress anything that was learned during - or could be traced to - the recordings. The Attorney General took over, and as expected fought the motion. The end result was that the court held they shouldn't have done it, but there wasn't any harm. To add insult to injury, they pointed out that the attorneys suspected their calls were being recorded.
My problem with this is that it is yet another example of allowing prosecutors to get away with anything. They are free to violate the violate the law - and step all over the constitution. Why can they do it? Because they are the good guys, sworn to put away the bad guys. On the one hand they can talk about being tough on crime, and punishing all who violate the law, and on the hand violate the law with impunity.
We are not talking about a simple mistake, or error in judgment. here. Even someone who didn't go to law school knows that communications between a lawyer and his client are privileged. This isn't an issue that is subject to interpretation. They knew they couldn't record the calls, and they did it anyway. And why shouldn't they? Most cases like this end up the same way. The prosecutor is told they shouldn't do that, but the prosecution proceeds. There's no discipline, and no sanctions, so what incentive do they have not to do it.
Thankfully the majority of prosecutors are honest, ethical people, who would never allow something like this to happen. But they follow the rules not because of fear of punishment, but because of a moral understanding of what is right and wrong. If they don't have it - or if they view their job as putting away the bad guys at all costs - there are no external restraints.
Unfortunately this is not an isolated story. Something needs to be done to ensure accountability. We have criminal punishments to assure compliance with the law. We know some people need incentives to follow the law. Why should we continue to believe prosecutors and police officers are any different?
