Wisdom and the public prosecutor

Mark Osler

By Mark Osler

Many of the problems dealt with by Friends of Justice are created by prosecutors behaving badly.  Part of my own vocation is to train prosecutors to act from principle in a public way, to avoid some of these tragedies before they happen.  This paper sets out a few of my thoughts on training future prosecutors so that they may show true wisdom in solving problems, rather than simply multiplying the tragedies inherent in criminal law.

When I was a federal prosecutor, I got to be a tangential player in one of the great and compelling dramas in American law—a beautiful juxtaposition of transgression and truth, violence and principle.

A man (it was nearly always a man) would run from the police.  He had robbed a bank, or sold narcotics, or fled the border, and was caught.  He would run across a street, a field, a frozen lake, pursued by three or four officers.  When he was caught, as he usually was, he would be thrown to the ground, rolled over, a knee would be placed roughly on his neck to hold him in place, and his hands would be shackled behind his back while he writhed on the ground.

It would be then—after the man was subdued but while he still struggled—that the most remarkable thing would happen.  One of the officers would reach, still breathing heavily, into his pocket, retrieve a card, and read aloud the Great Principles of the Fourth and Fifth Amendment:

You have the right to remain silent.

You have the right to talk to a lawyer and have him present with you.

If you cannot afford to hire a lawyer, one will be appointed for you.

You can decide at any time to stop any questioning….

What a glorious, amazing thing!  There in that rough field or alleyway, the improbable is recited—that we do not force confessions, that we value counsel, and that we do not favor the rich over the poor.   These are principles.  These exemplify wisdom.  And, sadly, they are rarely addressed as such in law school, where we bury ourselves in rules that have come to encase those principles within a thick coat of opaque and hoary jurisprudence.

This article has a simple premise:  That if we are to teach towards wisdom in addition to knowledge, we must teach principles in addition to rules.  Principles, unlike rules, allow room for personal agency, inner conflict, and the entry of the Holy Spirit—a perfect recipe for wisdom.

Allowing our students a route to wisdom requires that we teach principles as well as rules, and that we distinguish between the two.  In the end, when we see true wisdom—in heroes from Aristotle to Martin Luther King, Jr.—we see it in those who pursued principle even when those principles transgressed the rules.

Put simply, rules tell us what to do or what not to do.  Statutes are rules, for example.  We can’t drive over 70 on the interstate, one rule tells us, while another instructs that we must move to the side of the road when an emergency vehicle comes behind us.  Rules compel behavior directly, usually through threat of a sanction.  They often (though not always) can be followed reflexively.  The rule within the Ten Commandments that we not steal, for example, is going to be very directive in most cases without much consideration on our part—you just don’t take the candy bar without paying.

Principles, on the other hand, usually do not directly compel action or inaction.  Rather, they tell us what values to bring to a decision-making process. Mercy in judgment, for example, is a principle.  A judge at sentencing may take this principle into account, along with others, as she crafts a sentence in a specific case.  In some cases that consideration will result in a lower sentence, depending on the defendant, the circumstances, and (perhaps most importantly) the judge.   It would be hard to make a rule mandating mercy, of course—because then it would not be mercy, and it would not be a principle.

My own faith provides a wonderful example of the relationship between principles and rules.  A lawyer (appropriately enough) approached Jesus and asked him “which commandment in the law is the greatest?”

It was a tricky question.  The Mosaic law contained literally hundreds of rules.  The natural answer (at least to any parent) is simply to say that they are all important.  That’s the answer we give when we are rooted in rules alone.

Of course, that is not what Jesus says.  Instead, he lays out two principles, drawn from deep within the Jewish tradition: “Love the Lord your God with all your heart, and with all of your soul, and with all your mind,” and “Love your neighbor as yourself.” These are not rules of behavior—they are directions about how to look at the world, how to think, about what is important and good and true.

In the real world, wisdom is the product of a free mind, which is operating either contrary to or between established rules.  When we look at our heroes (especially through the lens of social justice), this is what we see.   This is also the zone where we see prosecutors making mistakes with terrible consequences—and too often, clinging to those mistakes once they are made.

Prosecutors play an important societal role:  Their actions literally define the boundary between acts that are punished and unpunished.  They have broad discretion at nearly every level of a case, and it is within this area of discretion that we, as a society, must hope that true wisdom comes into play.  Within our society there may be no area that more cries out for wisdom than in those decisions about who will be free, who will be shamed, and even who will die.  It is prosecutors who make these decisions, often without significant review or guidance.

Given that often these important decisions are left to very young lawyers, what guides them?  Some might imagine that there are strict office guidelines, but this is often not the case.  Thus, it is the principles of the individual prosecutor that will guide this decision.  This is what I am training my students for, once they know the procedures and the rules which frame the process.

So, how do we do it?  How do we properly train future prosecutors for their trade?  I would argue (and I try to create) three ways:  Through experiential learning, through role modeling, and through teaching professional responsibility.

First, only the experience of applying principle to decision making, of walking through it, can fully inculcate the importance, challenge, and technique of doing this.  In law schools, we can create this experiential learning through simulations or through clinical situations, and both have great value.  I use both.  For example, in my criminal practice class I simulate every step of the discretionary process in prosecuting a criminal case.  Each student, for example, will evaluate a case with an investigating agent and decide whether to accept or decline it.  This allows me the chance to do several things.  First, I can urge them to ponder principles and goals to guide their discretion before that meeting ever occurs.  Second, I require them to report on the process, including how principle was involved in their considerations.  Finally, because they work on the same case through each stage of the process, they become aware of the consequences of their decision as the case proceeds and things become more complicated.

Clinical studies can also allow us to teach the application of principle to decision-making within a vocation.  I recently started the first clinic in this country which focuses on federal commutations (that is, petitions for clemency by federal prisoners, addressed to the President).  In choosing and preparing clemency petitions, the application of principle is transparent—I encourage the students to weave that principle into the narrative and arguments they construct.

The second method, role modeling, is perhaps equally important.

Long ago, I learned something very significant:  At a small law school, the students watch what we do very closely and carefully.  It is no surprise, either, that they do so—we professors are the lawyers that they see every day, and they are there to become lawyers.  Importantly, too, they do not just watch us in the classroom, but also in the hallways, in our interactions with one another, in our outside work and advocacy, and in our role in the community.  In other words, nearly everything we do is teaching, whether we intend it to be or not.

That means that if we are uninvolved with our community, we teach that.  If we are uncivil to one another, we teach that.  If we perform outside work only to earn additional income, we teach that as well.  Each action is observed, and the underlying values are understood more than we often might want them to be.

It is crucial, then, that our students see us acting in a principled way, and perhaps even hear wisdom now and then.  We should make our principles explicit, and model for them the connection between those principles and our actions.

Part of this role modeling, a crucial part, is that students see me fail.  My students have seen me lose detention hearings before a magistrate, seen me lose sentencing arguments, and seen me lose in multiple United States Courts of Appeal.  Having my students see me lose is not humiliating, however.  It is teaching.

Role modeling as a part of teaching the application of principle allows us something else, too… it allows us to show our students, through our own wounds and setbacks, that principle requires sacrifice.  This bare truth, in itself, is wisdom, but also a predicate to the expression of wisdom by these students.  Or course, beyond providing a good example we should take the opportunity to teach them directly about principles in any class that purports to be about “ethics.”

Finally, we come to the one area of professional formation that is generally a part of a lawyer’s training—the teaching of professional responsibility.  Nearly every law school requires such a class.

Sadly, though, the teaching of ethics in American law schools too often devolves into the rote memorization of a seemingly endless set of narrow and discrete rules governing what has come to be called “professional responsibility.”  Not surprisingly, the field of professional responsibility has generated its own field of jurisprudence, replete with competing precedents, shifting decisions, and deep conflicts between jurisdictions.

It doesn’t have to be this way, though.

While at Baylor, I did teach Professional Responsibility, and enjoyed it very much.  I made a point to include in my teaching the primacy of principles, and structured the class around three of them:  Honesty, engagement, and humility.  Under those three headings, I organized the professional rules, keeping each tethered to the larger idea.

Finally, and perhaps most importantly, I addressed a simple and recurring reality: The ethical dilemma to which none of the rules applied.  In talking about this I reached back to that primal experience in the alley that I described at the start of this paper—of the man, bound and held tight to the ground, being read constitutional principles.

I wrote my own Miranda card, for use in such situations, and printed off hundreds.  The card contained three simple questions, each correlating with the three organizing principles of the class:

1)  Is what I say and imply true?

2)  Am I doing all I should for my client and for justice?

3) Am I acting for my client and justice, or out of self-interest or pride?

When I run into my old students, I often have the same experience.  They pull out their wallet, reach inside, and show me that card, perhaps weathered and torn.  It is still there, even though I am gone.

Teaching towards wisdom is a nearly outlandish goal.  It fits awkwardly into a curriculum, it may sound presumptuous, and it will often not work.

Yet, we are marked and known by our ambitions, and this is one that can survive us.  The rare genius of our vocation, of teaching, is that our best words come through the mouths of others, and our proudest moments often occur when we are not there.

Professor Mark Osler, University of St. Thomas School of Law
(254) 717-7032

One thought on “Wisdom and the public prosecutor

Comments are closed.