More Sad Irony in Crash That Killed Prosecutor

Just a follow up on last week's post. Sad Irony in Crash That Killed Prosecutor and the ensuing comments.

I think there are probably certain readers/commenters (yes, prosecutors, you know who you are) who aren't going to be swayed by anything I have to say here. You know, it's like me watching Nancy Grace. But, for the rest of you...

Well, you probably got it the first time. But in case you didn't, I guess there are two things.

1. I wonder what went through this prosecutor's mind before she drove home drunk. Yes, it was probably a drunken slurred thought, but I wonder what it was. Was it, "I'm not that drunk," or was it, "I'll get home safe," or "I'm not like those fuck-ups I send to prison," or "I'll never get caught."

I guess it doesn't matter, because the end result is the same. But it interests me the same way I wonder how prosecutors view my clients when they choose to pursue a case.

Do they ever say, "Hey, this guy probably just made a mistake, the same way my friends and I sometimes make a mistake?" No, I don't think so. And, yes, there will be some prosecutors who comment and say, "Yes, I do. I'm very reasonable." Well, good for you, but I submit that most of your colleagues aren't so reasonable.

When I was a rookie I had a few cases that warranted a phone call to the prosecutor that went, "Hey, look, he made a mistake, it was a pretty mistake, the kind of thing that I could see almost anyone doing." And I honestly had prosecutors, again and again, respond, "Well, if you make a mistake like that, you go to prison."

Which leads me to point 2.

2. What would have happened if she had lived? Would she have been prosecuted just as harshly as the defendants she prosecuted? I'm not sure. I personally know of 2 cases here in which prosecutors were caught in compromising situations. Both cases were quietly swept under the rug.

Tom McKenna, a prosecutor, submits:
If I myself engage in those crimes, I would hope that I would be treated as any other similarly situated offender: in fact, I should perhaps be punished more severely since I oughta know better!

And I agree. I think that ninety percent of my sympathy for my PD clients comes from the fact that they aren't in the same position to "oughta know better," because of deficits in their community, their parenting, and their education.

But it seems to me that, in this particular article, the State's Attorney is, to some extent standing by this prosecutor, saying, "She paid the ultimate price—she's dead. That doesn't change the impact of what she has accomplished in the state."

How many times have I said about a client, "He is a good guy who made a mistake. He did this, that, and the other thing for his community?" Some prosecutors will take that into account and offer a better plea bargain, some prosecutors will say, "I don't care if he was the pope."

Maybe the state's attorney is cutting her some slack because she's, well, dead. And it's considered impolite to speak ill of the dead. Maybe if she had survived, the prosecutor's office would be distancing itself from her.

We will never know. But it seems to me that the, "She's a good person who lived a good life and just mad a mistake," is kind of hypocritical. I bet her summations in drunk driving trials didn't include statements like, "He's a good person who has lived a good life, and done good things, and he made a mistake that we could all make." Sure, that's not a prosecutor's job. But I just wonder if she ever even thought it.


  1. True story. I had a prosecutor do something that made her a witness in a case. I subpoenaed her. Or...attemtped to...she avoided service; would not come out of her office; a misdemeanor in our jurisdiction. Certainly, she could have accepted it, and then moved to quash it, but she didn't. She then filed a pleading in the same case, and refused to testify because she "was not properly served." Her office did nothing; the judge did nothing. Yes, I think a lot of prosecutors think they are above the law; and certainly all of them think they are above our clients. All of you prosecutor readers: start counting how many times you use the word "scum" in association with our clients. Be honest. I have emails from prosecutors calling clients "assholes" "jerks" etc. etc. etc. In writing.

  2. I see a sad lack of empathy in the vast majority of prosecutors with whom I deal. I've commented on this particular situation here.

  3. Well, you can't really believe anything that comes out of Joe Birkett's mouth. I mean, this is the guy who overzealously prosecuted Rolando Cruz and Alex Hernandez, despite having a wealth of information that 10 year old Jeanine Nicarico was murdered by a man serving a life sentence for similar murders. Thankfully, both men eventually had their convictions overturned on appeal.

  4. You're surprised by this because...?

  5. I'm playing devil's advocate here, but I think I can answer question 1.

    We're all taught in driving school that having even one drink increases the chances of an accident by a factor of 100, and that's true as far as it goes. But what they don't say -- but it is public knowledge and can be found at NHTSA, among other places -- is the actual numbers: drinking increases your chance of getting into an injury crash on a single trip home from about 1 in 20 million to 1 in 200,000.

    There are millions of drinkers who feel that 1 in 200,000 is an acceptable risk, and that if the wreck occurs it'll be more bad luck than anything else, just as would be true for a non-drinking driver. And while I wouldn't do this myself, I can't especially blame anyone for taking that view.

  6. As a prosecutor who just last week received a phone call from a prosecutor in a neighboring county who asked to be cut a little slack for a minor violation for which he was cited, I guess I can't argue that prosecutors don't believe they are above the a group. I've actually been at both tables in the criminal courtroom. But I don't recall ever using the word "scum" in association with your clients. I'm not pulling a Furman here -- I'm sure there was probably some defendant or another who really was scum as a person and who got called such, but as a matter of routine, I don't tend to think of defendants as scum. I tend to think of them as...defendants. (I also don't suppose it helps a case for prosecutors that any attorney who would name-call anyone in writing simply isn't very smart...)

    What I can say is this: It's wrong to paint all prosecutors with the same brush in the same way it's wrong to paint all members of the defense bar that way, and if you haven't figured that out yet, no matter which side you're on, you're either very inexperienced or there's something very wrong with your local bar. I've probably applied the word "scum" to more members of the defense bar -- one of whom locally is currently deliberately representing a non-legal employee accused of some mild misconduct in an effort to hide his personal knowledge of her activities as her employer under the mantle of privilege -- than I have defendants, actually. You probably wouldn't think it fair if I chalked up all the drunk or high, late to court, forgetting to motion for discovery, taking sex from female clients in exchange for bonding them out, trying to buy their way out of their own drug busts, conning their clients into bad pleas because the amount they took for the "entire" criminal case really won't cover their time at trial and they never had any intention of trying the case, as fair examples of your brethren.

    I think if you haven't sat at both tables, you should be careful who (whom?) you accuse of a lack of empathy. It's just as hard to balance sympathy for a defendant's circumstances with the community's requirements (and demands) for prosecutors as it is to get your heart sucked out of you by criminal clients who just can't go straight, despite their hearts of gold. The truth is, to play this game on either side of the net requires that you either permit your heart to be broken on at least a monthly basis, or you just stop caring...on either side.

    (And the neighboring prosecutor? I'd like to punch him in the face in addition to prosecuting him, but he'd probably insist someone charge me. I'll have to settle for treating everyone else.)

  7. Here's a few more questions for you:

    1) Who was the prosecutor who drove her to her COUNTY-OWNED vehicle and let her drive herself home?

    2) Who else from Birkett's office was at the luncheon drinkathon and drove, drunk, in a county-owned vehicle? From the media buzz I'm hearing, there were a number of his top staff participating in that little shindig.

    3) Why hasn't Birkett announced a zero tolerance policy for drinking during business hours? For drinking and driving a county-owned vehicle?

    4) Why hasn't Birkett held everyone accountable for their behavior that day?

    I've got to tell you, there are a lot of pissed off taxpayers in DuPage County that are closely scrutinizing how he handles this... or doesn't.

  8. Continuing from above:

    5) Why hasn't Birkett expressed even one iota of sympathy for the seriously injured victim of Roadostits's recklessness - the single mother, who had broken bones in both arms and legs, and whose young child is now without support? Probably because he is the mean, heartless bastard that he publicly portrays every time he opens his mouth.