By Robrt L. Pela
By New Times
By New Times
By Robrt L. Pela
By Robrt L. Pela
By Katrina Montgomery
By New Times
By Robrt L. Pela and Amy Silverman
New Times: What's a law professor doing interning in the County Attorney's Office?
Gary Lowenthal: I'd been teaching at ASU for more than two decades, and felt increasingly out of touch with the world of law practice. I had a sabbatical coming up and thought I'd like to write a book about the criminal justice system.
NT: In your book, Romley's office comes off as mostly caring about its win-loss record.
Lowenthal: That's a little harsh, but not unfair. A more positive spin would be that they have limited resources, and the police submit to them many more cases than they can handle. They don't want too many cases to go to trial because it ties up resources, and as a result they'll only charge cases they know they can win. And they'll plea-bargain as many cases as they can to make it look like they're winning even more.
NT: So Romley's looking for slam-dunks.
Lowenthal: Oh, absolutely. For every Bishop O'Brien, there are 10,000 defendants we never learn about, even when they commit very serious crimes. If in fact there are [cases that] look like they're going to be time-consuming or are going to be lost, they'll just ship them back to the police and say, "You do the work if you want this case charged." So very often people who commit serious crimes are never prosecuted.
NT: Gee. Maybe I'll knock over a bank on my way home today.
Lowenthal: The reason I call my book Down and Dirty Justice is that it's all about that kind of bargain justice. It's a system that's run for administrative efficiency, to get the messy cases out of the system, to just go with the slam-dunks.
NT: You suggest that your training was partly designed to shield the county attorney from blame if you blew a case.
Lowenthal: It was an odd training program. We sat in the basement of the County Attorney's Office, and just listened to one lecture after another, unconnected, with a huge amount of information thrown at us. There was no way of assessing whether we were absorbing the information, and there was no test at the end. After a while I realized that the reason for this program was, if we screwed up on anything later on, Romley's office could say, "We covered that in training."
NT: You discovered that many of the attorneys in the major felony division had less than two years' experience. Remind me not to rely on a prosecutor from the County Attorney's Office anytime soon!
Lowenthal: When I was there, it was a serious problem, and I'm told it's as bad or even worse today. There's a high turnover; every week there are lawyers leaving that office. The county attorney requires that new hires pledge that they'll stay two years, and if someone even talks to another employer during that time, they're kicked out. They box 'em up and move 'em out on the spot. At the two-year point, you find an enormous amount of deputy attorneys leaving the office. So you have a few people who've been around for a number of years, some who aren't stellar, and a lot of lawyers who don't have much experience.
NT: I get the impression that there are a lot of high-pressure tactics used to convince defendants to waive their trial rights and plead guilty.
Lowenthal: Absolutely. To try to get [as many cases] out of the system as possible, the policy is to make the best offer that's going to be made at the preliminary hearing and make it only available then, and never again.
NT: It's like you're a used-car salesman: "Act now -- this offer won't come again!"
Lowenthal: Sometimes I felt like a used-car salesman.
NT: As a law professor, were you embarrassed by the way law is being practiced here?
Lowenthal: In some ways I was. But I was also taken with the commitment and dedication of many people I worked with and against. They get dumped on all the time, they don't get good pay, yet they still do it and do it very well. I was heartened by that. On the other hand, I was embarrassed by the sloppiness, lack of preparation, and lack of respect for judges and civilians.
NT: You tell us, at the end of your book, that the system is flawed, and that we must do better. But you don't tell us how.
Lowenthal: Well, the training given to lawyers who work in public agencies needs to improve dramatically. We need to not tolerate unprofessional behavior by lawyers. We need to refocus on the sentencing laws in this state to try to restore some sanity. We could give more discretion back to judges, let them more often make sentencing decisions, rather than having kids just out of law school doing it. And I think a lot more of what goes on behind closed doors should be public information. If the public knew about more of this stuff, then the system might be more responsive to some of the injustices.
NT: And Mr. Romley?
Lowenthal: I'm not so sure that the county attorney should be an elected official. I'm not saying that we don't have a highly qualified county attorney, but he's too responsive to the political realities of his job, and that so often drives the actual decision-making process. This isn't about Romley, but about the institution -- and it's a terrible problem.
NT: What do you say to the possibility of "Romley for Governor in 2006"?
Lowenthal: On the record? He [already] has the most powerful position in the state of Arizona, and tremendous influence -- think about the case involving the church last year, and major cases in which he has been able to pretty much have his way, make or break the lives of victims and defendants in the routine cases that go unreported. I can't think of a more powerful person in this state. Certainly not the governor. So if you want power, why go from the most powerful position in the state to a less powerful position?
NT: There's certainly no love lost between Governor Napolitano and Romley these days. He called her a bully!
Lowenthal: In fact, our current governor uses the bully pulpit and has more power than she has authority. [Romley is] as qualified to have the position as someone who had been a land developer, or had sold used cars. I don't know why having been the secretary of state makes one more qualified to be governor than having been the county attorney. I don't have any problem with someone going from the County Attorney's Office to being governor. That's on the record, at least.
NT: You went pretty easy on Romley in your book, I thought.
Lowenthal: You think so? My understanding, from people at the agency and from a letter I received from Mr. Romley, is they were very unhappy by what I said in the book. I was very disheartened by that. I thought mine was a very evenhanded description of what I was seeing, and that it looked at the brighter side of what was going on. I made a conscious decision to tread lightly in the book, but to be honest and fair and not too harsh in my criticism of people. It hurts me that people are being so critical when I went out of my way not to be critical. It really bothers me.