Very early in my legal career, I hung around the Travis County courthouse, soaking in the wisdom of seasoned criminal defense attorneys. One such gent was Jack Darrouzet, who handled all kinds of traffic offenses. This was back in the days when Texans still labored under the doctrine of fundamental error in charging instruments. Jack became an expert in this area and applied it with rigor to each and every traffic crime, no matter how small. If you sat with him in the courthouse café, inevitably a big name attorney with a big time case would come by Jack’s table and seek his advice on some obscure point of indictment construction.

Jack also loved to hold forth on the banality of prosecutors. Jack knew Texas criminal law and procedure and all of the Supreme Court precedents, and he knew how to argue the law in front of a Texas judge. It really bugged Jack when he made a cogent legal argument against some county attorney’s action and received the following response: “But Your Honor, we’ve always done it that way.” More than anything else I witnessed during my brief sojourn at the courthouse, this drove Jack crazy. “We’ve always done it that way is not a legal argument,” he would remind anyone gathered around his table.

For some reason Jack’s lament has always stuck with me. You don’t see this kind of argument much in federal court anymore, as the government can usually come up with some god-awful precedent to justify even its most absurd actions. But you certainly see the same mindset when federal prosecutors use tactics that are lawful but unfair.

Think about arresting white collar defendants at home in front of their children or at work in front of their colleagues. Prosecutors have the absolute right to do it. But is it right or fair, when the same prosecutors will not oppose pretrial release? The defendant is presumed innocent and will be processed and freed within hours. Why should he or she suffer the humiliation and potential prejudice of a public arrest? And how about the closely connected practice of perp-walking, in which the arresting agent walks the alleged perpetrator to the federal courthouse, parading him or her before the waiting media hordes? Granted, this practice has decreased in recent years, but it still happens, as it did in the case of the late Ken Lay.

I have a feeling that several routine practices engaged in by prosecutors could stand re-examination. With respect to many of these practices, I’m sure that the AUSAs in question do not even stop to think about the fairness of what they are doing. This is not because they are bad people, or because they intentionally do bad things. (Indeed, they would be, and often are, shocked and offended when you suggest that they are not being fair.)  It is because they have always done it this way.

(slw)