Paulie Five Fingers, DA

A power shift in the courts brings a new type of justice

by Bryan Zepp Jamieson

8/26/01

"Zepp! Hey, paisan!"

"Paulie? Is that you, Paulie Five Fingers?"

"It is indeed myself. I am basking in your warm California sunshine and enjoying the sight of your many fine examples of the fairer sex."

"Well, hey. This is a surprise! It’s great to see you. You on vacation?"

"No, I have come out here for gainful employment."

"Huh? I would have thought the money you got from rack...um, that business back east was good."

"Business is always good, but sometimes one has to step outside the confines of the family business and look for opportunities for advancement."

"Um, ok. I guess. So what are you doing here?"

"I am sad because you do not drop in at the club, nor do you accept our invitations to dinner."

"New Jersey is a long way from here, Paulie."

"They have no airplanes in California? Zepp, this is not showing proper respect."

"I’ll try, Paulie. I really will. But remember, I gotta work for a living."

"I can lighten that load for you. Just say the word."

"So did you come here just to talk to me?"

"There is business requiring my attention here. I am about to become the new DA of your illustrious county."

"DA? District Attorney? You’re about to become the District Attorney?"

"You should not take such a tone of voice. If you were not my friend, I would think that perhaps you were questioning my qualifications for the position."

"Well, I know you know court procedure like a Dershowitz. But aren’t you usually, um, facing the district attorney in those cases?"

"That is often the case. But it came to pass that I observed trials of several petty larcenists and other minor players in the world of crime lately, and I observed a most interesting thing.

"In this low-level courtroom in New Jersey, I noticed that the state-appointed defense attorney was a drab, a pitiful, cringing little guy who clearly was some hippy liberal type who just barely beat the bar exam and clings to existence in a low-paying, dead-end job. Scuttling and brow-beaten, he all but apologized to the court for wasting their time on defending clients such as his.

"The Assistant District Attorney was sleek and well-fed, serene, confident, exchanging understanding amused glances with the judge as the defense attorney went about his menial tasks, barely bothering to learn the name of the accused, but merely reciting the crimes, secure in the knowledge that little of his time would have to be devoted to presenting actual evidence. It was like watching a polling station where a ten-term incumbent congressman is facing a challenge from some unknown third party weirdo."

"Paulie, I think you might be exaggerating."

"Not by much, my friend, not by much. As you know, I have a very good staff of legal advisors, and armed with such Dershowitzes, the employees of the Federal and State governments do not appear so formidable, as my unblemished record on convictions demonstrates.

"But in watching these minor cases while waiting to testify for the character of Jimmy the Croaker, I saw the court system in a whole new light, and did some investigating on my own so that I might satisfy myself as to what my instincts were telling me.

"You know, of course, that the conviction rate is far higher for those who have to have an attorney appointed for them. While it can be argued that people who cannot afford their own private lawyers may be more prone to crime than those that can, it is my suspicion that at least part of the problem lies in the fact that court-appointed attorneys may not provide as efficacious a defense as a team of Dershowitzes costing me $3 million a year might.

"When I tell you that the posture of the district attorney’s office adjunct was visibly superior to that of the defense attorney, I do not exaggerate. At one point, during a disputation, I watched the judge uphold an objection, and then glance at the prosecutor in order to affirm his good judgment. The prosecutor actually nodded, confirming that the judge was doing his job in a manner pleasing to the DA office.

"I then asked myself, ‘How can this be?’ and set out to uncover the answer. In most counties, the appropriations for the district attorney’s office are three, five, sometimes ten times as much as what is appropriated for the public defender’s office. In many locations, they set a flat fee per case for providing legal counsel, an approach that greatly reduces the will or the ability of the lawyers in question to do more than provide the minimum. This, of course, reflects the public will, which sees money for the prosecutor’s office as being ‘tough on crime’ and money for the public defender’s office as ‘mollycoddling criminals’. I understand this particular impulse."

"You do?"

"Certainly. I, for one, wish there were less untalented amateurs out on the street giving fine, upstanding businessmen a bad name.

"Be that as it may, I observed that in an earlier age, becoming a judge was often considered a step toward elective office, usually at the state level. A judge became a participant in the political fray only after he decided he no longer wanted to be a judge and wished to move on to bigger and better things.

"That was then. This is now. Now, judges are elected, and as a result, must always be peering over their shoulder at the angry and confused mob that is counting on the judges to allay their fears. There is constant pressure on judges to show that they are tough on crime, and the only thing the public will understand is many convictions and long sentences.

"Zepp, every so often, the mayor is put under pressure do to something about ‘organized crime’ in our city. When that happens, the police make arrangements with . . . certain elements to round up a showy display of criminals. The most expendable ones – the dealers who are sampling their own products, the runners who keep coming in light – they get rounded up. The mayor looks good, and the neighborhood is rid of some deadwood. It works out.

"But quite often in the past 30 years there have been uproars over crime that couldn’t be solved by a little friendly negotiation between the authorities and Our Thing. As they call it. Suddenly, with all these free lancers running around, there were no quick fixes, and the cops were dealing with people who weren’t willing to just lay low for a while until the heat died down. And that changed the dynamics of our judicial system.

"Now, if you look at your aspirants to higher office, they aren’t judges. They’re district attorneys. If you want to become an Assemblyman, a State Senator, or even the Governor, you’ld better have done time as a DA, and have an impressive number of scalps hanging from your belt.

"So the power locus in the courtroom has shifted. The district attorney, not the judge, is the main figure in the courtroom, and both defense and the bench have become supplicants, hoping to bask in the reflected glory of the DA. I was watching in the courtroom most carefully, and I have been an interested observer in other cases, and Zepp, I tell you this again: I have actually seen the judge and the DA exchange glances when the judge is about to make a declaration, and it takes no genius to tell that the judge is seeking to find the DA’s wishes. To one trained in the minutiae of subtle communication such as I, it is glaringly obvious.

"I will tell you another thing. Woe betide the judge who does not meet the standards set for his courtroom by the DA.

"Let me read from your fine local gazette here, of a story where the DA is displeased, not with the outcome of a criminal trial, but with what he saw as unwonted leniency in the sentence handed down by the judge.

Both the District Attorney and Probation Department has [sic] recommended Schmidt receive the maximum sentence of 18 years.

In a sharply worded press release issued Monday, Deputy District Attorney Christine Chenevert, who prosecuted Schmidt, said her office sought the maximum sentence because a jury found Schmidt guilty of 19 felonies, including one count of attempting to dissuade one of his victims while he was free on bail.

[...]

Chenevert said her office would appeal Schmidt's sentence and argue that Kosel commited [sic] legal errors by staying prison terms for 11 of the 18 sex felonies for which Schmidt was convicted.

"You see what I’m talking about? The judge gave the defendant nine years on a first offence. Never mind if the sentence was actually lenient or too harsh or whatever. That’s besides the point here. It used to be that when a judge handed down a sentence on a conviction, that was the end of it. Now, if the DA – the deputy DA – is not happy with the sentence, she is free to go to the press and raise hell, and castigate the judge, and demand a re-sentencing more in line with what the prosecution wants, and nobody thinks twice about it."

"Paulie, the defendant was a cop who sexually molested teenagers. In uniform."

"I know, and I doubt he’ll survive in jail, and it won’t take the other convicts eighteen years, or even nine, to make him pay for his crime. I’m sure the judge and Deputy DA both know that, too, which, as I say, makes the sentencing moot. The main thing here is that the DA’s office feels free to shout down the judge because they did not like his ruling, even though it was well within the parameters of good judicial behavior."

"OK, Paulie. The DA runs the courtroom. I see that. But given your, um, given the nature of your associates, doesn’t that put you in a position where you will be..."

"Ratting? Turning on them? No, I would never consider such a thing. That is why I have come here to California, where my associates have no dealings."

"So you aren’t worried about conflict of interest?"

"No, quite the opposite. The most powerful man in any society is the man who decides who shall walk free and who shall be thrown into the vast machine of the American Gulag. If I have control of that – and this county is only the start, in four years I hope to run for State District Attorney – then I have the power to allow my associates to conduct their business unimpeded while making life harder for would-be competitors. I will also be doing my best to clear American streets of riffraff – not just the guilty, but those who disturb the equanimity of the public mind. And by dealing with those, I please the public, who wish to see crime dealt with at all costs. Ah, the marvels of American society!"

"Speaking of the county, Paul, we already have a DA, and the last I heard, he was planning to run again."

"So he is, and upon reelection, I shall be his loyal deputy, right up until the day, six months from now, when he is selected to be the new deputy state DA in New Jersey. If he works out, he will rise high in the organization. I have fond hopes for that young man."

"Paulie, given your career..."

"Please do not be vocally explicit."

"Given your career, don’t you see this as a travesty?"

"Travesty? Zepp, you treat me so poorly sometimes, what am I going to do with you? You heard my description of the present dynamics of our judicial system. It is what the people want. It is what the people need. It is, one way or another, what the people will get.

"Believe me, my friend, given the present state of American justice, there is nobody in the country better qualified to administer it than me.

"I’ll be the best district attorney you ever saw, and exactly what the people deserve."