THE BLOG
03/26/2014 07:13 pm ET Updated May 26, 2014

Prosecutors and the 'Blanket' Policy

Thirty years ago, I represented an extremely successful businessman. He was arrested one evening for an altercation -- the centerpiece of which was that he menacingly cursed at the police. I knew that the city's justice system was slow and that, if I let it take its course, for 24 to 36 hours my client would have to wend his handcuffed way through the bowels of The Tombs -- the colloquial name for the subterranean Manhattan Detention Complex -- until he would be arraigned and, by all accounts, released. He had a heart condition, and although I was able to bring him his meds, there was still a risk that he might suffer severely from the experience. I also knew, as would anyone who has navigated the criminal justice system, that even if he pleaded guilty at his arraignment (or at any time), he would surely not be sentenced to serve any time in jail.

I took the bull by the horns. At 10 p.m. the night of my client's arrest, I went straight to the night court arraignment part. I exchanged nodding glances with the presiding judge who had been my colleague in a prior life -- although we weren't close. During a break, he politely asked if I had business in his courtroom, and invited me to approach the bench at sidebar (accompanied by the duty prosecutor). I told him of my client's medical problem and asked if he could somehow expedite the arraignment, given that the defendant had no record -- which the prosecutor, looking at his still-incomplete file, seemed to already know, and on which basis he was willing to not oppose the relief I was requesting. The judge was sympathetic to my concern, but said he couldn't do anything: "You know there is a blanket policy on the arraignment process. And, after all, I know you [although not so well] and your client is white and successful. Most of the defendants in my courtroom are minorities [and not successful], and so it would look like I was extending favoritism" -- or words to that effect.

Would this judge have acted differently if he didn't know me or if my client were black or Hispanic? Probably not. But, still, he said a mouthful -- even with the prosecutor's acquiescence, he wasn't going to depart from "policy" because he recognized that there was some potential risk to him because of how he might be perceived. Was the judge's action, in declining to depart from policy requiring fingerprint records, improper? Probably not. But what about his mental calculus?

***

It is not at all uncommon in a high-profile case for an aggressive defense lawyer to argue to a jury that what is really at stake is "a prosecutor on a mission." Meaning, that if the defendant were instead simply John Q. Citizen -- a person without the headlines -- the prosecution might never have been brought, the case would probably never have seen the light of day. And if the defendant were a politician, particularly if she was from the same political party as the chief prosecutor, her counsel might try to argue (and would surely so allude in the court of public opinion) that there was no basis to prosecute; that the prosecutor was bending over backwards so he would not appear to be dispensing leniency or "softness" to a particular defendant -- a person the public might see as a political ally. In other words -- the argument goes -- the prosecutor is only pursuing the matter to make sure it does not appear that the defendant is the beneficiary of favoritism.

So we turn to the following situation: The defendant or target of investigation is a prominent person -- maybe even a sympathetic public figure. Perhaps he is a philanthropist or some other kind of do-gooder. He has arguably violated the law -- at least on its face. Should law enforcement treat him better than the next guy? Absolutely not! But -- and this is the question -- should law enforcement treat him more harshly for fear that the prosecutor (or the agency) might be viewed as compromised; that they are letting this wealthy humanitarian "get away with it" when there is a "policy" of how such cases must be handled?

Coverage of the recent prosecution of RFK daughter Kerry Kennedy in Westchester County, New York for driving under the influence of a sleeping pill made it appear that the prosecution was doing exactly that -- holding against the defendant her very standing in society. Now, it is true, for whatever reason, after the trial was over and she was acquitted in almost record time, Ms. Kennedy told the New York Times that she believed that the prosecutor didn't insist on prosecuting her because she is a Kennedy even though most recognized, from the outset, that the prosecution had an extremely uphill battle. Rather, for her -- at least, when comfortably sitting at home on her sofa after the two year ordeal was finally over -- it was that district attorney's office simply had a blanket "policy" of prosecuting every drunken -- or drugged -- driving arrest (to her, and frankly to this author, a "crazy policy.")

The fact is that few defendants will have the financial and emotional stamina to refuse a plea offer and put together the kind of legal team that Ms. Kennedy secured. But does prosecuting a member of the privileged class -- with all of the attendant media frenzy -- somehow justify harsh treatment of those who do not have resources? As if to say -- "See world, we treat everyone the same, regardless of who they are." That is, even when dismissing the high profile case is the right thing to do in the interest of justice -- not because of who the defendant is, but because there is no there, there.

We probably will never know what entered the prosecutors' mental calculus when they decided to pursue their case against Ms. Kennedy. Was it that the office does in fact insist on prosecuting each and every driving while impaired case, or that the office did not want to be accused of sparing Kennedy because she is, after all, a Kennedy? But, should the circumstance of her birth mean the prosecutor should stand on unyielding principle -- basically saying, "We can't dismiss, for to do so may make us look bad (for actually doing justice)?" Sort of like the judge in the arraignment part 30 years ago unwilling to act, not because it may have been the wrong thing to do, but because of how it would look to those in his courtroom.

Yes, it was Ms. Kennedy's martyred uncle -- President John F. Kennedy -- who, in another context, told the world, "There is always inequality in life ... Life is unfair." But, when considering which matters to pursue, shouldn't prosecutors (and, for that matter, judges) remind themselves of one of the more important biblical tenets -- that true justice be done, irrespective of who the parties are?

It's hard to tell, at day's end, if Kennedy was treated more harshly because of who she is. Maybe, as had been alleged or speculated by some, she was in fact prosecuted because she's a Kennedy, or maybe because of the district attorney's reported (and, if true, somewhat disturbing) blanket policy for such offenses. Now that the dust has settled and Ms. Kennedy is able to return to her privileged life (no negative intended) and humanitarian works, maybe the postmortem should focus its analytical energies at the vice of blanket policies, if that indeed is what was at stake after all.

Maybe, just maybe, both the rich and the poor will benefit from that!

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