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Down and Dirty Justice By Gary T. Lowenthal (New Horizon Press, 295 pages, $25.95) When law professor Gary T. Lowenthal decided to take a break from the ivory tower, he did not go halfway. Early in his career, the University of Chicago Law School graduate worked as a public defender. After a few years, he entered academia, teaching at Stanford University, the University of California, and the University of Virginia before settling in at Arizona State University College of Law. For more than two decades, Lowenthal taught and wrote about criminal procedure there. But to his credit, Lowenthal knew he was becoming more and more divorced from real life. So Lowenthal wrote letters to the chief prosecutor and the chief public defender in Maricopa County, Ariz., hoping one and preferably both would allow him to handle cases during a university sabbatical year, at no cost to either agency. Rick Romley, the elected district attorney, had been a student in Lowenthal’s criminal law class 18 years earlier. “But we had little contact since,” Lowenthal says. “I assumed that he viewed me as a liberal law professor. In addition to my criminal defense background before becoming an academician, I had participated more recently in prisoner litigation against the state and I represented a death row client on appeal. Romley had reason to be cautious.” Yet Romley said yes, if Lowenthal would commit to a year rather than split his sabbatical with a stretch in the public defender’s office. Romley insisted on two other conditions � Lowenthal would experience much of the training required of all beginning prosecutors and would never violate any office policy. Lowenthal agreed to these terms, although failing until later to understand the full import of these agreements. In 1997, Lowenthal entered the prosecutor’s office with the promise that he would make charging decisions, negotiate plea agreements, and, if everything fell into place, try cases before a jury. After his training, Lowenthal ended up handling mostly gang-related cases and alleged crimes involving super-recidivists, whether gang members or not. Lowenthal has written a superb book about his experience, Down and Dirty Justice: A Chilling Journey Into the Dark World of Crime and the Criminal Courts. Lowenthal structures his book by alternating chapters containing his general observations (about training of baby prosecutors, police-prosecutor relationships, defense attorney-prosecutor relationships, plea agreements, trial strategies, quality of juries, and judges, for example) with chapters about the details of one crime � an aggravated assault/attempted kidnapping taken to trial by Lownethal three years after it had been dropped or mishandled by multiple prosecutors and defense lawyers. The overarching theme of Lowenthal’s book revolves around power. It is no secret that local district attorneys wield considerable authority. But even Lowenthal expresses surprise at how exponentially that authority has grown in recent decades because of new crime categories, permissive court rulings about the admissibility of evidence, and mandatory sentencing standards. Prosecutors serve as judge and jury by deciding which arrests by police result in criminal charges and which are dismissed. Lowenthal failed to realize until his sabbatical that as many as half of all arrests are never charged. His chapter about the nearly anonymous assistant prosecutors who make the charging decisions will prove the most revelatory in the book for lots of readers. Lowenthal also failed to realize until his sabbatical year that when cases are charged, once again prosecutors act as judge and jury behind closed doors in unimagined ways about 95 percent of the time, because only about 5 percent of those charged cases reach trial. Regarding the small percentage of cases that do reach trial, Lowenthal realized for the first time that procedural and sentencing powers have in many ways devolved from the judges to the prosecutors. Lowenthal supports every one of his epiphanies with poignant examples, in clear, often compelling, prose. Some of the Maricopa County police officers, prosecutors, defense attorneys, and judges portrayed by Lowenthal are hard-working, capable, even heroic in their efforts. But many are not. Lowenthal names names as he tells readers about police detectives who fail to deliver important evidence to the crime lab, who never interview key witnesses, who botch testimony at preliminary hearings and trials. He tells readers about prosecutors who leave the office at 5 p.m., even though they are unprepared for upcoming trials and falling months behind on processing other cases in their earlier stages. He tells readers of incompetent and uncaring defense attorneys in both private practice and the public defender’s office. He demonstrates over and over how personal animosity between prosecutors and defense lawyers leads to the subversion of justice for suspects and for crime victims. Lowenthal is hard on himself too, sharing with readers the mistakes he makes as he prepares the aggravated assault/attempted kidnapping case for trial on short notice. Even when Lowenthal wins, he finds the victory hollow in many respects. “I am left with the underpinning philosophy that if State v. Schilling resulted in justice, it was, in the words of my mentor, down and dirty,” Lowenthal writes. “The system is seriously flawed. We can, we must, do better.” Steve Weinberg is an investigative journalist in Columbia, Mo. He served as lead researcher in a multi-year study of prosecutors, which can be found at www.publicintegrity.org, under the heading “Harmful Error.”

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