Straining to Defend Martha Coakley

Commenting on Martha Coakley's role in the Gerald Amirault case, M. LeBlanc at Bitch, Ph.D. writes:

So, what's the moral status of advocating that someone who is likely innocent remain in prison? It's a tough question. As far as I known, it's something that's routinely done by prosecutors everywhere…

I don't have a major problem with prosecutors who lobby for people to serve more time in prison, whether it's at the indictment, sentencing, or parole stage. My main concern is with systems that are overly deferential to prosecutors, that disadvantage defendants, and that make it extremely difficult for convicts to make the case for their own parole. I do think the criminal justice world would be a lot more just if more prosecutors declined to prosecute more often. Particularly in high-profile or embattled cases, where it seems that all evidence points to innocence, but the prosecutors insist on, for example, re-trying a case after a trial has been thrown out years after the fact by a judge. You see this all the time: prosecutors' stubborn insistence that they've got the right guy in the face of overwhelming evidence.

Nevertheless, being a prosecutor who is stalwart when presented with evidence of innocence or prosecutorial misconduct is so common as to be banal. Which is why I think her lobbying for Amirault's continued incarceration isn't, in itself, enough to make her a morally suspect choice for senator…

A lot of the criticism of Coakley's involvement in the Amirault case seems to center on the fact that she was clearly stepping up the pressure on the governor for her own political gain. Being seen as a law-and-order sort is almost uniformly a political advantage, no matter where you hold office. Hardly anyone ever fails to be elected because they were too hard on criminals. Take, for example, Joe Arpaio (extremely popular!) vs. Michael Dukakis (Willie Horton!). But it's not really enough to blame politicians for exploiting this tendency of Americans to thirst for more and more justice-blood. And I'm not particularly moved by allegations that people are behaving in politicized ways. Justice is political, and the more we recognize and appreciate that, the better we can be honest with ourselves as a society and government about how we want to proceed.

I'm floored by this reaction. A leftist could make a respectable argument that even though Coakley was grievously out of bounds in the Amirault case the need for her vote on health care reform, filibuster prevention, and other issues is more important than the troubling decisions she made as a prosecutor. A leftist could also plausibly argue that when it comes to actually making criminal justice policy as a senator, Coakley isn't likely to be any worse than her opponent, and therefore she deserves support because she's more progressive on everything else.

But LeBlanc isn't arguing either of those positions. She's arguing something far more repugnant: She's conceding that the Amirault case was a travesty of justice, and that Coakley was wrong for her extraordinary efforts to keep Gerald Amiralut in prison. But she's then arguing that Coakley deserves a pass specifically for her actions in the Amirault case, anyway, because all prosecutors do it, and because it's what Coakley had to do to accumulate political power and move on to higher office.

That is one hellaciously disturbing statement of values. LeBlanc is either arguing that she believes the accumulation of power and advancement of one's career is more important than justice—more important than ensuring that innocent people don't rot behind bars—or that she's willing to give a pass to politicians who do.

Actually, not just a pass, but a promotion.

I'm also not convinced LeBlanc's assumptions about the political pressures Coakley faced in the Amirault case are accurate. The parole board voted 5-0 to free Gerald Amirault in 1999. That came three years after Dorothy Rabinowtiz won her Pulitzer Prize for commentary for her columns exposing the case against the Amiraults and other sex abuse injustices. Recovered memory therapy; the leading, repeated, and persistent questioning of children; and the various other tactics prosecutors used in the sex abuse hysteria cases of the 1980s and early 1990s had been exposed and debunked. Coakley had plenty of political cover to do the right thing in this case.

LeBlanc is right that generally speaking, prosecutors fight like hell to protect convictions, even when there's overwhelming evidence of innocence. But not all of them do. There are plenty of cases where prosecutors have dropped charges and freed the wrongly convicted. Dallas County District Attorney Craig Watkins is actively seeking out innocence cases, and he's doing it in a jurisdiction that's a hell of a lot more conservative than Middlesex, Massachusetts. Perhaps it's too much to expect Coakley to have Watkins' moral courage. But then, she isn't being criticized for not going as far as someone like Watkins. She's being criticized for going well above and beyond the call of duty the other way, including fighting outside the courtroom by orchestrating a PR campaign to persuade then-Gov. Jane Swift to keep Amirault in prison. Coakley wasn't bowing to political pressure, she was creating it.

Broadly speaking, LeBlanc's also right that "hardly anyone ever fails to be elected becasue they were too hard on criminals." But I don't know of a single incident in which a prosecutor suffered bad publicity or was attacked politically for failing to fight the release of an innocent person. "Tough on crime" positions on parole, sentencing, the death penalty, and so on are policy positions on which reasonable people can disagree. Obstinacy in the face of overwhelming evidence of someone's innocence is a moral failing, regardless of motivation.

Moreover, Coakley's also being criticized for failing to bring charges against a man who sexually assaulted his young niece with a curling iron. Coakley's successor put him away for two life terms. Why would Coakley—so aware of the political pressure to be tough on crime, so protective of her own ambition for higher office, and who carefully cultivated an image for herself as a defender of children—not throw the book at a man accused of raping a toddler with a curling iron? I'm just guessing here, but it may have something to do with the fact that Keith Winfield was also a police officer. That suggests a blind allegiance to law enforcement that we should find troubling in a U.S. Senator who will be making and voting on criminal justice policy.

There's a broader point here, too. Even the left—even the far left—seems to find it difficult to hold bad prosecutors accountable, at least when they happen to be Democrats. So long as prosecutors are rewarded for aggressiveness and never punished when they overstep, we'll continue to see the very sort of behavior LeBlanc claims to find troubling.

It's worth noting that the person who actually convicted the Amiraults was Coakley's predecessor in the Middlesex County DA's office, Scott Harshbarger. How was Harshbarger punished for his mistakes? For starters, like Coakley, he went on to become Massachusetts Attorney General. In 1998, well after the injustice in the Amirault case was well known both in and out of Massachusetts, he was the Democratic nominee for governor. He was later hired to head up the liberal interest group Common Cause. Of course, there's also Janet Reno, who went on to become U.S. attorney general, despite her own history of dubious sex abuse convictions.

I'm glad LeBlanc believes "the criminal justice world would be a lot more just if more prosecutors declined to prosecute more often," and that she's troubled by "prosecutors' stubborn insistence that they've got the right guy in the face of overwhelming evidence." But frankly, she's part of the problem. If even a leftist blogger like LeBlanc is unwilling to hold overly aggressive prosecutors accountable, is willing to overlook a grave injustices so long as they're committed out of political ambition, and can later support the same bad actors' election to higher office, how does she expect the criminal justice system's flawed incentive structure to change?