{"id":1084,"date":"2012-03-23T21:12:40","date_gmt":"2012-03-24T01:12:40","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=1084"},"modified":"2015-10-02T15:24:20","modified_gmt":"2015-10-02T15:24:20","slug":"flagrant-conduct-and-the-perfect-prosecution-part-2","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/03\/23\/flagrant-conduct-and-the-perfect-prosecution-part-2\/","title":{"rendered":"“Flagrant Conduct” and the Perfect Prosecution Part 2"},"content":{"rendered":"

By David Yin<\/p>\n

<\/em>In\u00a0last week\u2019s post<\/a>, I wrote about how \u201cperfect plaintiffs\u201d can be outcome-determinative to the resolution of a case, or the crafting of a rule. Today we return to Dale Carpenter\u2019s book\u00a0Flagrant Conduct<\/em><\/a>\u00a0on\u00a0Lawrence v. Texas,<\/em>and the importance of a \u201cperfect\u00a0prosecution.\u201d<\/p>\n

In some cases where plaintiffs seek to challenge unjust laws, the challenge might be that those very laws are rarely enforced against private activity. Yet the fact that sodomy laws were rarely enforced did not diminish their invidious and destructive character. As Prof. Carpenter explains:<\/p>\n

Homosexuals, unprotected from job discrimination in Texas and most other states in the 1990s, could be fired simply for being gay. Divorced gay parents could lose custody or face onerous restrictions on visitation with their children on the ground that they were presumptively criminal. Legislators used the existence of the sodomy law as a reason not to grant any civil rights protections to homosexuals\u2026. Being branded a criminal class was also an invitation to discrimination and even violence\u2026.
\n
\nYet as previously discussed, if laws are not enforced, they cannot be challenged because no person has standing to sue. So the gay rights community not only needed the\u00a0perfect\u00a0plaintiffs (as\u00a0perfect\u00a0as the best public relations team could make), they also needed a willing\u00a0prosecution. Thus one particularly fascinating\u00a0aspect of\u00a0Flagrant Conduct<\/em>\u00a0was how a false police report about a man waving a gun turned into one of the most important civil rights cases in history.<\/p>\n

The first fortuitous figure, for the gay rights movement (if not for Mr. Lawrence), was the \u201cpriority unit\u201d or lead cop on scene: Deputy Joseph Quinn. Quinn was possibly the only deputy at the scene under which arrests could have been made and charges on sodomy meted out. His record was littered with abuse of authority. He routinely brought in citizens for Class C misdemeanors which most cops would have ignored. He once\u00a0arrested<\/em>\u00a0two mothers waiting for their kids in a no-parking zone in front of a middle school. In an interview with Carpenter, Quinn boasted, \u201cActually, I have the largest Internal Affairs [complaint] file in the department.\u201d Quinn was also clearly homophobic, and sensitive to perceived affronts to his masculinity. Most importantly, Quinn was the first officer in the bedroom where Lawrence and Garner were found, minutes after the police had twice loudly knocked and announced, and after they had loudly arrested a man in an adjacent room. It was Quinn who outrageously testified that, with his gun drawn and having shouted orders to stop, Lawrence looked him in the eye and continued performing anal sex \u201cwell in excess of a minute.\u201d It was Quinn who charged Lawrence and Garner with violating the sodomy law, though the plausibility of this observation strains logic and imagination.<\/p>\n

A second fortuitous event involved the fines for Lawrence and Garner. Despite internal disagreement within the District Attorney\u2019s office over whether to even defend the law, with some prosecutors urging the director of the appellate division \u201cthat [they] had no business trying to defend it\u201d, the DA\u2019s office decided to go ahead with the case in the Justice of the Peace court, which handled minor criminal cases. The initial fine announced by the judge was $100, and the attorneys for Lawrence and Garner worried that it was one penny too low to be appealed (a Texas statute allowed appeals of criminal cases only if the fine exceeded $100 or involved a constitutional issue\u2013the attorneys wanted to play it safe with both). Here the prosecution could have enforced the law, yet obstructed an attempt to appeal. But the defense team and the Assistant District Attorney conferred, and announced that the defense would ask for a higher fine, which the prosecution would agree to. Even if the sodomy law might have been appealed solely on the basis of a constitutional issue, the prosecution had assisted in preserving all avenues of appeal.<\/p>\n

In Texas, the minor crimes first heard in the Justice of the Peace court must be heard\u00a0de novo<\/em>\u00a0in a county criminal court before further appeals. As Carpenter explained: \u201cThe court clerk\u2019s \u201crecord\u201d of the case, along with a transcript, is what any appeals court might actually see. As a legal matter, therefore, the proceedings in the county criminal court were potentially far more consequential than those in the Justice of the Peace court. For lawyers seeking a win for their cause in higher courts, the county criminal court was another potential roadblock.\u201d The Lawrence defense team was handed a third boon with the assignment of the D.A.\u2019s chief prosecutor. Angela Jewel Beavers was smart, respected, and a skilled attorney. She was also a lesbian, a fact then unknown to the D.A.\u2019s office. As the prosecutor, Beavers could have ended the\u00a0Lawrence<\/em>\u00a0case right there, yet she no doubt understood that the defense needed the appeal to survive in higher courts in order to test the law. Beavers could have reasonably dismissed the criminal charges for several reasons: the costs of prosecuting a Class C misdemeanor might have outweighed the benefits; a conviction might have seemed unlikely; a key witness\u2019s testimony (e.g. Quinn\u2019s) might not have been credible. No doubt Beavers, a lesbian herself, would have been sympathetic to Lawrence, disdainful of sodomy laws, and incredulous at Quinn\u2019s report. Yet Beavers also understood that both Lawrence and his defense team had a bigger prize than non-prosecution, and \u201cdid not go out of her way to create difficulties for the defense team[; rather, she] assisted it in understanding the procedures of the county criminal court.\u201d<\/p>\n

The story of\u00a0Lawrence<\/em>\u00a0not only involved courageous plaintiffs who were willing to subject themselves to criminal condemnation and public spectacle, but also confederate players on the prosecution. Without the zealous bigotry of Quinn, a crime might never have been charged. Without the District Attorney\u2019s and chief prosecutor\u2019s concurrence, the case might have been dismissed in the Justice of the Peace court or county criminal court, respectively. We might never know if the District Attorney calculated that his prosecution was the only way the sodomy law could be challenged and overturned by the courts. We can only speculate that the chief prosecutor\u2019s sentiments, and strategies, may have been rooting for the very man she was responsible for convicting. But we do know that without some combination of fell fortune and opportune cooperation, Mr. Lawrence and his team might not have been able to test sodomy laws before the Supreme Court and thereby lead the country down a path of increasing equality for gay men and women. Thus theLawrence<\/em>\u00a0saga is a marriage of perfect plaintiffs and a perfect prosecution. For the rest of the story, I encourage readers to find a copy of the book.<\/p>\n

(repeat disclosure: I am a student at the University of Minnesota Law School, where Prof. Carpenter teaches, and took his Con Law class last semester.)<\/p>\n","protected":false},"excerpt":{"rendered":"

By David Yin In\u00a0last week\u2019s post, I wrote about how \u201cperfect plaintiffs\u201d can be outcome-determinative to the resolution of a […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[2],"tags":[],"class_list":["post-1084","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-hu","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1084","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1084"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1084\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1084"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1084"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1084"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}