Fred Prosecuted My Poor, Downtrodden Co-Liquorists!

Filed under:It's My Life,Need a Good Editor?,Politics — posted by Anwyn on November 12, 2007 @ 12:08 am

Update: Welcome, Hot Air and Patterico readers! The hard numbers are about halfway down the post, in bold. I hope you’ll take a few minutes to look around. You may be interested in how judges do things in Oregon, how Hillary’s planted questions and other missteps are not good news for the GOP, how the U.S. Air Force really might need to hold bake sales to buy fighter jets (with comments from two fighter pilots), how editors’ worldview skews their job performance, or what the outreach representative of the local mosque had to say when he spoke at my church. Thanks for stopping by.

Or, In Which I Build an Illicit Still in Patterico’s Back Yard.

Okay, so they weren’t really my co-liquorists, but I do have moonshiners in my family tree. My grandfather helped make the stuff and my great-uncle ran it all over the county in cars that Junior Johnson had tricked out for the purpose. Yes, that Junior Johnson–my grandparents were raised in Wilkes County, North Carolina. Everything you’ve heard about NASCAR’s origins in moonshining … is true.

Anyway, so Fred Thompson seems to have made his prosecutorial bones whoopin’ up on them good ol’ boys, never meanin’ no harm, over in Tennessee.

Seriously, there must be something available in Fred’s past worse than the fact that the judge in these cases thought they were “a waste of time” (because who’s more qualified than the judge, really, to say which laws are important and which aren’t) and that the same judge didn’t think Thompson and the other members of the U.S. Attorney’s office “knew what they were doing.”

Of course, a judge’s pronouncement of “utterly incompetent” on the conduct of a prosecutor carries weight, but there’s one major item of interest the Times article leaves out: Of the 88 cases Thompson prosecuted in three years, of which 27 were about moonshine (“more than any other crime,” the Times tells us without providing a numeric breakdown of the other 61–any other kinds of crime break the 20-case mark?), how many did he win? That would seem to be a relevant number in an article quoting more than one person who suggests Fred was a lightweight.

Apparently this information is not terribly easy to come by, due to the lack of computerized records from that era. I called the U.S. Attorney’s office in Nashville, and the man there was very gentlemanly but I could tell he was trying not to laugh at me for wanting a win-loss record from over 35 years ago, even if the guy is running for president. Then I called the Federal District Court. The lady there cited the lack of computerized records but directed me to the National Archives for the region, which are housed near Atlanta. That’s where I bottomed out. They have the records, but it would involve either a significant amount of money for them to copy the case files and send them–all 88 cases, I suppose–or else a flight to Atlanta and a hotel stay while I riffle through the records and copy down the judgements myself.

Then I called the campaign. They were extremely helpful, but even they don’t have this information on a scorecard in their pockets. They sent me a news article written at the time of Fred’s resignation from the U.S. Attorney’s office that states he won 14 out of 15 bank robbery cases (27 moonshine cases vs. 15 bank robberies, if you’re counting) but doesn’t get more detailed than that. At this point I doubt even Fred himself could reel off his stats from the top of his head if asked.

But Joe Mathews of the L.A. Times does have the numbers at his fingertips, after two weeks of digging 35-year-old files out of their boxes in Georgia for his article. And to my surprise and gratitude, he was willing to share them.

He broke them down by numbers of defendants, so there are more than 88 defendants because there were multiple defendants in various individual cases. In total, 88 cases covered 115 defendants, 34 of whom were moonshiners, 21 of whom were counterfeiters, and 17 of whom were bank robbers. The remainder (43) were various other crimes.

Out of 115, nine never stood in Thompson’s district either because they were never captured, were found dead, or were transferred to a different federal district. So we’ll subtract those nine. That leaves 106.

Out of 106, 12 found the charges against them dropped, 66 defendants pleaded guilty or no contest without going to trial, and 28 went to trial. Of the 28 who went to trial, 22 were found guilty, leaving six who were not convicted.

These numbers suggest that Thompson was a completely solid, if not shining, prosecutor. Of course, you could also draw that conclusion by the very fact of his having served as a prosecutor for three years–incompetence is not encouraged at that level by continued employment, one would suppose and hope. Of the 12 cases thrown out, at least two were the direct result of an error of Thompson’s. Joe Mathews:

After charging a man with stealing checks from the mail, Thompson saw the case dismissed because the wrong date appeared in the indictment. Another indictment, against a group of counterfeiters, was thrown out when Gray ruled that Thompson had failed to allege a crime.

Even though one could assume by Thompson’s three years of employment at this level that he was doing a satisfactory job as far as his boss was concerned, having these numbers would help to balance the the remarks of the clearly adversarial judge. At the very least, I would have thought a more thorough numbers breakdown would have made a better return on Mathews’s two weeks of poking through the Archives, and I remarked as much to him. So why not include them? Mathews answered that as well in an email:

I don’t want to get into why we choose not to include things and include others. Those decisions are not always the reporter’s. But a few things to think about. As you know, prosecutorial numbers don’t tell you much in a world in which almost all federal prosecutors, good and bad, win convictions in nearly all their cases (in part because of the way the legal system works, and in part because most people are guilty). Prosecutors are also only one factor in outcomes–the investigating agents, the quality of defense attorneys, the standards of judges and the quality of juries are all big factors. The quality of justice is always going to be debated. What I tried to do–based on interviews and the transcripts and records of his actual words and actions in court — is paint an accurate picture of Thompson in the courtroom as prosecutor, with portraits of the judge and defendants that were the focus of his work then. I think I did that very fairly, and very well.

So he’s suggesting that even bad prosecutors win their cases most of the time. Patterico, See-Dub, and Mike Lief are all more qualified to give an opinion of that conclusion than I am, but it seems to me that the likelier cause of a preponderance of winning numbers is that more bad prosecutors are relieved either before they make it to the federal level or after a scant time in office that makes it clear they are not qualified.

Reporters have easier access to many facts because they are paid to spend their time doing things like what I could not–digging through files for two weeks in Atlanta to get the numbers and details of Thompson’s cases. In a long, long list of clearly egregious journalistic abuses of this greater access in order to decide what facts are and are not appropriate for public newspaper consumption, this hardly qualifies. But as a minor example of how journalists are much fonder of delivering conclusions than of providing facts, it is annoying. And far too often these agenda-driven conclusions damn public officials with faint praise in the absence of hard evidence to suggest wrongdoing or incompetence.

I’ve corresponded with Joe Mathews. He was quite willing to show me the figures it took him two weeks to compile–me, Jane Blog, for no other reason than that I asked him about the article. So it might be doubly puzzling that he would not put them in the article, editorial control aside. His explanation provides the reasons why he felt simple numbers were not as good an indicator of how good a prosecutor Thompson was as the remarks of the people in and around those old cases. I would argue instead that while they certainly are important to the “human” portrait Mathews did convey well, they are far and away not the whole picture, and that by omitting these simple facts that would allow readers greater material with which to draw their own conclusions, he attempts to substitute the judgment of the people he quoted, three out of six of whom were cool or downright damning on Thompson, with the other three commenting more on his demeanor than on his competence, for the readers’ own.

This is only human nature. It’s far more fun to draw conclusions than it is to present facts. But it’s just another example of how ingrained it is in the journalistic establishment to claim the latter when in fact they happily do the former all the time.

It is the reason the CEO of the AP himself is now having to call upon his colleagues to abandon this outdated attitude and recognize that just like the reporters themselves, most people prefer to draw their own conclusions, or at least to read authors with a track record of coming to conclusions the readers agree with–because they can follow the reasoning right there in the piece, not because the author has chosen to quote selectively while leaving out data.

Even if we assume all 12 of Thompson’s dismissed cases were dismissed on his error, that still leaves a disproportion of 88 guilty/no contest to 18 dismissed/not guilty. I don’t dismiss (hah!) out of hand Mathews’s argument that the legal system is built such that a majority of people indicted actually are guilty. But to me that’s a feature rather than a bug, and it also points to the competence of some of the other people Mathews discussed–investigators and police. Fact of guilt is not always proof of guilt, which is why we have prosecutors to begin with. Why should the fact that the system so frequently works as it should take away from a record of competency and good work prosecuting the cases that Tennessee afforded–and really, why should anybody be surprised that moonshining was far and away the highest proportion of federal crime in Tennessee in 1969? Those good ol’ boys, after all, will be boys. And it seems Tennessee is even loopier in handling them than Oregon is in handling “medical” marijuana.

Thanks to the Funkypundit and to my friend and sometime editor Jon S. for assistance with this post.

image: detail of installation by Bronwyn Lace