"A DA is not a cop"

Chilling case for prosecutorial misconduct and improper use of government power
No DA's office should be involved with the gathering of evidence

"I seen my opportunities, and
I  took ‘em.
" - Boss Tweed.

The "Massachusetts state law also gives district attorneys jurisdiction over investigation of homicides instead of local police, a problematic arrangement. "In Massachusetts, murder is political because the cops are powerless," Manso quotes Cape journalist Jeff Blanchard. "If you call the state police or the locals, anywhere, anytime, they'll refer you to the district attorney."

Jack Coleman's review of Peter Manso's book, Reasonable Doubt, makes a chilling case for prosecutorial misconduct and improper use of government power. But in government, corruption is the inevitable result of structural imbalances that give different offices the power to take advantage, give advantage or hide both. That is why you do not want the guy arresting you to be running for office.

One reason we give the police investigative powers is because normally it is neither to their advantage nor disadvantage to report what they find. Cops, in fact, are not supposed to care if any case is won or lost. That is why no DA's office should be involved with the gathering of evidence.

The interest of any DA in political advancement, is also in conflict with investigative neutrality.

The DA's office is political, not infrequently a stop on the way to higher position. The DA thus has every incentive to bend the truth to create "justice" that serves him politically. Prosecutors are supposed to take the facts as given them by law enforcement, and build cases to convict people. A prosecutor cannot be an investigator. That puts the two interests of (a) an impartial search for facts, and (b) winning cases into direct conflict. The interest of any DA in political advancement, is also in conflict with investigative neutrality.

Prosecutors are not to be part of the search for evidence, because they have every incentive to find a great deal of it and sometimes to lose all of it if successful prosecution comes at a political cost. You could say Senatorial cocaine has a much higher street value. Gone missing after arrest, the stuff is priceless. Prosecutors know that charges carry a weight does not care about guilt; ask Dominique Strauss-Kahn. Charges last.

Prosecutors' best defense against taking on politically-driven cases is their built-in indifference to evidence. Because they do not collect it, but must use what they are given by the police, they are not supposed to care what the evidence is, only that it was gathered legally. And because prosecutors' interest is always in winning the case, we have judges to make sure they stick to the letter of the law in using evidence. But this presumes the prosecutorial and investigative functions remain separate.

One of the best reasons to keep prosecutors separate from police, is we rely on the former to punish misconduct by the latter. If the two are indistinguishable, evidence is going to be a problem.

Police have people they like and people they do not like, no less than anyone else. Thus evidence is sometimes "found" where it is not. Or police take advantage of the structural opportunity available to them to shake down criminals. Ready access to that much money from criminals without recourse except the police creates a permanent problem. Also problematic are charges like "disturbing the peace" or "disorderly conduct." These "crimes" have no fixed meaning, and are most often used to get hold of persons police hope will yield evidence, or just to aggravate the aggravating. The check on abuse of police power is the judicial function that holds police behavior to statutory and Constitutional requirements. But because they are separate, we also rely on prosecutors to an extent to keep the police in line.

The great thing about judges is that they do not care. Guy walks, they don't care. Guy does twenty years, they don't care: judges are referees. Also timekeepers: part of their job is to keep the People's money from being wasted. Defense attorneys and prosecutors both are not known for brevity. The judge at least ensures there are breaks for meals. But judges have their own permanent interests.

Each would clear his calendar first if he could. That, in fact, is the sole basis for the euphemistic "employment-at-will" law that now applies in all fifty states. One Missouri judge got sick of adjudicating labor disputes.

Before 1877, all terms of employment were understood to be one year, and worker and employer had equal standing. Workers had the right to challenge their termination in court. But this one judge, said that he happily solved this "problem" by "resolving such cases always in favor of the more powerful party," trampling on centuries of the Common Law but making his own job a lot easier. Today we employees enjoy termination "for good cause, for bad cause and for no cause at all." But court calendars are less crowded.

We rely on the separation of judicial, prosecutorial and investigatory powers and the conflicts inherent among them as our safeguards against misconduct. But if the lines between these roles are blurred, the People are in trouble.

Mr. Manso has said, "the problem becomes all the more acute in backwater areas like the Cape which is isolated, geographically, but also a two-season tourist economy where few wish to address the issue of justice and equity while they're on holiday. Off-season, too many are drunk or too depressed to participate in the social process, leaving governance to the powerful almost exclusively."

Whether Cape Cod District Attorney Michael O'Keefe has behaved improperly, as Manso charges, neither he nor any prosecutor should be in authority over police. The Massachusetts statute as written guarantees corruption, by pitting the political interests of district attorneys in conflict with the need for evidence to be gathered and kept legally. This law does not admit to the separation of powers. Whatever happens with the Cape Cod DA, the law is wrong and should be tossed.

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