Police Scandal Offers a Rare Opportunity

The greatest mistakes we make often involve choices we never even recognize.

Our best chances for making a difference pass us by because they appear disguised, like ancient gods dressed in rags, knocking at our door to test our true values, only to disappear into the night when we give the wrong answers or ask the wrong questions.

One of the worst criminal justice scandals of the last half-century in Los Angeles--police corruption in the city’s Rampart Division--presents just such a hidden opportunity: a chance to remedy a troubling lack of respect and trust between prosecutors and defense attorneys in local criminal justice.

As it has played out in recent weeks, the Rampart scandal has featured increasing tension between traditional legal adversaries. While police and prosecutors devote ever-greater resources to investigating tainted cases, demonstrating in the process the very best of American law enforcement, defense attorneys complain of being stonewalled.

Lawyers with clients whose convictions may have been obtained by corrupt evidence say that their only communication with the district attorney’s office has been bureaucratic letters that provide far less information about the inquiry than has been reported in the press. Prosecutors, meanwhile, defend themselves by pointing out that criminal investigations can be compromised by premature disclosure.

Standing alone, this kind of public disagreement seems standard and unimportant. Unlike the inquisitorial systems used by many other nations, our criminal justice system depends on adversarial lawyering. We expect prosecutors and defense attorneys to give each other a hard time. In this instance, adversarial tension may well dissipate when prosecutors, becoming more confident of their investigation, release more information.

However, the current tensions do not stand alone. Instead, they risk becoming the latest episode in a dispiriting tale of distrust and disrespect between adversaries in criminal justice. Controversies over the use of informants, wiretap evidence and three-strikes punishments by the district attorney’s office have been a few of the recent issues over which prosecutors and defense attorneys have fought bitterly.

There is a pattern here: Defense attorneys, deeply frustrated at being ignored in legal policy-making, impugn the integrity of prosecutors who wield much of the day-to-day power in the system. Prosecutors, secure in their legal position and convinced of their own righteousness, react with public disdain, but privately take serious offense. They resolve to treat their opponents even more severely in the future.

Add to this local employment patterns, in which career prosecutors who have never defended a case contend daily with career defense attorneys who have never prosecuted a case, and the sheer size of the county system, which makes bureaucratic relations more important than personal ones, and we end up with a system in which lawyers view their opposite numbers not as worthy opponents but as the personal representatives of the forces of darkness.

The costs of disrespect are subtle but serious. Bad attorney relations make public compromise distasteful and private candor unthinkable, thus eliminating some of the best means for reaching case dispositions that are just.

All this argues for considering the Rampart inquiry as an opportunity for improving professional relations. At least one lawyer on the district attorney’s Rampart team should be given major responsibility for working with counsels for defense. Instead of worrying primarily about protecting future litigation positions, this prosecutor should create opportunities to trade information and insights with defense attorneys about potentially tainted cases.

The resulting interaction will not always be warm or fruitful. Trust between adversaries is that rarest of qualities and must be personally, and incrementally, earned. However, if the district attorney’s office can convince the defense bar that here, at least, it is putting the truth above public image and winning cases, then out of a disastrous situation will come something of lasting value.

I do not wish to exaggerate the point. Prosecution-defense relations make up a small part of our current problems with criminal justice, and the Rampart inquiry offers only a modest opportunity for improving those relations.

Still, we have to start somewhere. Why not here? Why not now?