One of the constant refrains heard in courtrooms where I practice, and no doubt throughout the country, revolves around criminal defendants taking responsibility for their actions. In the world of the criminal defendant, poor decision making must result in consequences. That is how prosecutors define justice. Ask any prosecutor after a jury returns a Not Guilty verdict and you'll be hard-pressed to find one say that justice was done. It's only justice if the government prevails. Otherwise it's a travesty, a miscarriage of justice. I understand the emotional appeal to such a narrow-minded and intellectually dishonest approach. I was once an aggressive prosecutor who thought all of my actions were just and righteous. Nevertheless, the purpose behind the punishment model of criminal justice (we do not really operate under a rehabilitation model) is to ensure that there are negative consequences for poor decisions. The consequences have to hurt. Just like when your child gets a spanking, it does no good if the spanking doesn't produce discomfort, pain. The idea is that the pain caused will serve as a reminder to that person never to engage in that behavior again. Whether it works or not is for another post.
The problem is that the pain model is only applied in one direction, despite their being two sides to every criminal case. Think for a moment about this. A young attorney I work with recently went to jury trial on a drug case in a neighboring district. The prosecutor had refused to make any kind of reasonable settlement offer and wanted the client to simply go to prison. Who was this menace to society, this plague upon all things good and decent? He was a deacon in his church, a man in his 60s with no criminal history at all. A man who worked everyday. A man with a family and absolutely no indication of criminal behavior. However, a convicted felon with a lengthy rap sheet told the cops he could buy dope off of this man and then claimed that he had done just that. Despite the cops not conducting a proper investigation, vetting their newly minted informant, or actually trying to confirm anything he told them, they used him again, and again, and again. Despite this informant taking to Facebook to brag about how much money he was making from the local sheriff's department they used him. Again, and again, and again. The result? Sealed indictments against dozens of people. People who all, allegedly, sold dope to the cops' felon friend. Of course, for every purported buy he conducted, he was paid handsomely by the sheriff's department. Thousands of dollars flowed from the sheriff's department into the hands of their felon friend.
At trial, the defense attorney was able to point out the glaring problems with the case, problems that even a rookie cop could have seen, if he cared to. Dope cases are worked a specific way. The informant claims to be able to buy dope off of someone. Usually, the informant has problems of their own and they turn "State's witness" in order to catch a break from their own misdeeds. The informant usually makes a few recorded phone calls to the target setting up the transaction. These calls are monitored by law enforcement to ensure problems such as entrapment don't come up. Real drug cops know how to do this. The calls are recorded to be used later at trial when the target claims to have never talked to the informant before. The informant is then given marked money, money where the serial numbers are recorded so that law enforcement can track the money if it is found on the target later. The informant is then wired up so the entire transaction can be monitored by law enforcement, usually sitting not too far away in their vehicle, listening to the whole thing go down through a Kel-Set. Depending upon the agreed location of the transaction, good drug cops will set up video surveillance to catch the whole thing on video. Before the informant is sent to do the buy, he/she is searched thoroughly, as is their vehicle. This is an important step and can't be overstated in importance. If an informant, in need of quick cash, decides to take you down, a pill stuffed in their underwear and retrieved during the drive from and then back to law enforcement is all it takes.
Those things were discussed at the trial and the jury said NOT GUILTY. Ok. So the elderly deacon goes home. The saga is over. Not quite so fast. In this situation, the District Attorney's Office decided to actually review the cases they had already presented to the Grand Jury (it must have been too much of a hassle to actually know about the cases beforehand) and they ended up dismissing over 20 cases against individuals this one drug informant claimed to have purchased dope from. That's a HUGE deal, in case you were wondering. So let's ask the next question then. Since the District Attorney presented cases for indictments against folks based almost exclusively on the veracity of the sheriff's department's felon friend, dozens of people were arrested, held in jail until they could make bond (those that actually could make a bond anyway), suffered the embarrassment of their arrest being publicized by the local media, lost jobs, etc. Why then, should the government be able to simply say, "Aw shucks, sorry about screwing your life up. Our bad. Carry on about your life now that we've dismissed the cases." What about the money lost to bail? What about the incomes lost due to being terminated from employment? What about the public ridicule from having your mugshot plastered in the local paper? The D.A. was going to want the misdeeds of these people to result in punishment, in pain. So why not apply that same rationale to them? Why not consider sanctions against a District Attorney's office that willfully indicts dozens of people without first determining whether the cases are legitimate? Why not force the State of Tennessee through the local District Attorney's office to pay restitution to these accused citizens?
At the end of the day, this stark double standard of conduct is what makes so many people angry about our system. If you make a mistake, exercise poor judgment, engage in bad decision making, you can rest assured that a prosecutor will be waiting eagerly to punish you with righteous indignation. But, if they are willfully negligent and screw up your life? Well, no consequences. And that's not just.