Prosecution: And So It's Been Three Years: Blogging

About three years back I switched from being a defense attorney into the role of a prosecutor. As the third year passes I thought that it might be interesting to look back upon those three years.

I used to wonder, back when I was a defense attorney, why there were so few prosecutors blogging. Now I understand. There are some considerations which are obvious enough, but some of which really hadn't occurred to me.

Of course, critiquing fellow workers and/or the Boss in a blog is just stupid and should be avoided. Anybody who doesn't disagree with a fellow worker once in a while is a saint or a rug, but if a conflict isn't major enough to leave the job a prosecutor should either work to resolve it in shop or just let it be. Nothing good can come of putting it in a blog.

Politics is also obviously a concern. As a deputy prosecutor you have a duty not to cause trouble for the Boss. This means watching out for the sensitivities of voters, other office holders, powerful people in the community, LEO's, judges, news agencies and anyone else who might impact the Boss and/or his office. So, if 5% of the people in the prosecutor's city believe the color Blue is God's color and refuse to swear an oath which does not in end "so help the Blue God" the prosecutor really can't comment on it for fear of offending a significant voting block.

Additionally, there is the concern that anything a prosecutor blogs about a case may be used against her either in trial or in an appeal or habeas. It's obvious that anyone who blogs about a trial while it's in progress is inviting trouble because of its potential to cause a mistrial (e.g.: if a juror stumbles upon it) or give away trial strategy to the other side. As a prosecutor she also has the problem of not knowing if a case is finished. A defendant can file post trial motions, or appeals, or habeases, or even a petition for a writ of actual innocence (in Virginia). Blogging about an important case coming out of the office the prosecutor works in invites these things, particularly in an era when people are overreacting to jurors text messaging or twittering. Sure, the motions filed based on a blog post would, almost always, be spurious, but a prosecutor just shouldn't go out of his way to provide ammo for a convicted offender.

One thing which makes it hard to blog is that a surprising amount of the interesting stuff which happens in a prosecutor's work is prior to court. You vet an interesting indictment before it goes to the grand jury. You help a deputy get a search warrant. Prosecutors and officers discuss what charges to file against someone. You discuss with officers ongoing investigations or the local drug trade connections. A lot of this is truly interesting and has some amazing stories attached. In fact, all sorts of interesting stories pop up precharge. Yet, a prosecutor can't blog about this stuff for both ethical and practical reasons.

Personally, I've been lucky in that both my elected bosses knew about my blog ahead of time and agreed to allow me to continue to blog. I've tried to honor their trust by not doing anything too stupid which might cause the Boss trouble. As anyone who has followed this blog for a while knows my style of blogging has changed somewhat. The strongest part of this blog used to be the stories of what happened in court with theory and news thrown in. Now, I think the strongest is the discussion of theory and law, usually with a concentration on Virginia. There are still some stories here and there, but not near as many. News stories don't often make it into my posts anymore, but that's more of a result of me putting a friendfeed up and just posting news links to it.