The Long Memory of the Law

In the mid-Eighties, as a young assistant United States attorney in Manhattan, I was awestruck to be rubbing elbows with renowned lawyers well on their way to celebrity in law and politics. They’d tell me time and again: Never would I have a job more challenging, character-forming, and fulfilling than that of a prosecutor. The words still ring true — even well into a second career, journalism, which I’ve loved.

Nothing quite compares to standing up in court, stating your name, and announcing to the judge, a jury, the parties, spectators, and often the media that you are there to represent the People — which is how state prosecutors refer to their client. (Feds, as I was, tell the world that we carry the torch for the United States or the government.) It doesn’t matter how run-of-the-mill a criminal case appears to be. For someone trained in the law, the courtroom is a Manichaean arena where good confronts evil; the prosecutor dons the white hat, avenging the community.

Of course, nothing is that simple. As searingly recounted by one of the nation’s brightest legal thinkers, Randy E. Barnett, in his fast-paced memoir Felony Review: Tales of True Crime and Corruption in Chicago, the arena is more like a fortress of gray. Evil abounds, justice doesn’t always triumph, and too many of the putative good guys turn out to be . . . transactional (to use the popular euphemism for “biddable”).

Barnett is a professor of constitutional law at Georgetown University, a pioneer of legal originalism, and an accomplished litigator and author. Felony Review is different from his many other books. His familiar style is there: the winning combination of humility and wry humor, the capacity to make complexities and deep insights accessible to his readers. But this one is gritty, just like the tough-as-nails streets of 1970s Chicago that he brings to life. There are philosophical lessons to be learned from the foibles of human nature, especially as these play out in the crucible of a vital but overwhelmed and debauched justice system.

The book’s title is inspired by one of Barnett’s early tours of duty as an assistant state’s attorney in Cook County, Ill. As they gain hands-on experience, young prosecutors move from ostensibly simpler, less weighty misdemeanor assignments to investigating, charging, and trying more serious felony matters. There are stops along the way — grand jury practice, appellate defense of convictions won by the office, and some specialized areas of criminal law. Barnett recalls a pattern. At each phase, the lawyer arrives as a novice feeling wholly at sea. Soon, he is transformed into a grizzled veteran by dealing with a bottomless well of case files (which are often just a page of sketchy police reporting), only to be rewarded for mastering one prosecutorial skill by feeling lost again upon promotion.

With his Harvard Law School pedigree, Barnett could have chosen a more lucrative career, but he wanted to enforce the law in the community where he was raised. And he wanted to prosecute “real crime” — the state prosecutor’s lot of murders, burglaries, rapes, gang activity, and violent street crime — not what he suggests is the more effete docket of federal prosecutors (ouch!).

The state’s division of labor is that police investigate and assistant state’s attorneys prosecute. But the lines can blur. No matter how strongly the cops feel about an offense for which they’ve nabbed suspects — and many offenses that Barnett describes curdle the blood — the case cannot be charged without the prosecutor’s assent. Where street crime is concerned, the case tends to come together, or not, with the arrest and its aftermath, when suspects are often willing to talk and witnesses haven’t yet had misgivings about cooperating. A great deal of effort can be wasted if the prosecutor decides that the evidence collected is insufficient after the cops have done their work.

The Felony Review Unit, therefore, was a worthy innovation. Young prosecutors like Barnett were assigned in twelve-hour shifts to the Windy City’s major police stations. They worked in tandem with tactical police (the cops who make street arrests, frequently of gangbangers and other dead-eyed criminals) and detectives (who investigate the crimes to prove them). In real time, the Felony Review Unit collaborated with cops to tighten up the proof: cajoling confessions, nailing down witness statements, anticipating what the defenses might be and gathering physical or testimonial evidence to cut them off. As a result, thousands of cases that should not have been felonies were dropped without wasting overtaxed resources, while the meritorious cases overwhelmingly resulted in convictions. Such victories are important to rack up because the system is dissolute in too many ways. Mind you, Barnett is talking about a time decades before the ascent of today’s progressive prosecutors, who often innately oppose law enforcement.

The author admires a number of the jurists he encountered along the way, and his memoir vividly conveys a reality the uninitiated would doubt: Because the prosecutor’s burden is to ensure that justice is done, not to win for the client, judges especially appreciate and rely on ethical, competent prosecutors. Even if they develop friendships with the prosecutors, good judges hold them to high standards — and there is hell to pay for prosecutors who fall short.

To be sure, there are plenty of bad judges. Some are just incompetent, but the worst are those of weak character who enable or benefit from the justice system’s dysfunction. Barnett recalls the endemic corruption of cases in which defendants were released on bail by posting the 10 percent required for a bond. For example, if bail is set at $10,000, the bond costs $1,000, which the defendant gets back (minus a fee) if he appears in court as directed. For small-time defense lawyers, such defendants were highly desirable clients: By persuading them to sign the bond over to the lawyer, the latter is sure to get paid. And why would the defendant do that? Because a lawyer who was covertly splitting the bond proceeds with the judge could promise a dismissal or similarly favorable result.

As Barnett ruefully observes, such unscrupulousness is a volume business. A payoff of $500 every once in a while wouldn’t be worth the risk of getting caught. Bond-splitting and similar shenanigans were remunerative because they were widespread. A promising young assistant state’s attorney, for example, left the office prematurely to work the other side of the street before learning the full array of prosecutorial skills: “There’s a lot of money to be made out there,” Barnett recalls him saying, “and I’m ready to make it.”

Good and evil are not always what we assume. To the extent that good was inculcated in Randy Barnett, it was, as he tells it, not in the state attorney’s office but at his parents’ dinner table and by their strong example. He found that the good men and women — prosecutors, defense lawyers, judges, even the occasional criminal — were those who maintained their dignity and embodied the justice to which the system is supposed to aspire.