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Prosecutors are ‘quitting in droves,’ and it’s bad news for defendants, law prof says

By Debra Cassens Weiss

January 26, 2024, 8:57 am CST

Prosecutors are “quitting in droves,” while the offices that employ them are getting a fraction of the applications that they have in the past, according to a law professor who studied the problem.

Vacancies in prosecution offices are higher than 15% in Houston and Los Angeles; higher than 20% in Fort Lauderdale, Florida, and Detroit; at 25% in Alameda, California; and at 33% in Miami.

Adam Gershowitz, a research professor at the William & Mary Law School, provided those statistics in a Slate article and a paper posted at SSRN.

Some vacancies may be due to the “George Floyd effect,” according to Gershowitz. Floyd, a Black man, died in Minneapolis in May 2020, while a police officer pinned him to the ground and pushed a knee into his neck. Since then, more law students favor jobs as public defenders than as prosecutors, Gershowitz said.

The result has been plummeting job applications at prosecution offices. Also discouraging applicants are huge caseloads made worse by COVID-19 pandemic backlogs; low pay that is typically at about $70,000 for entry-level positions; the lack of remote work; and time-consuming discovery obligations stemming from technology, such as police body cameras and video footage.

Vacancies are also a problem when progressive prosecutors are elected and those in their office leave because of policy disagreements. And fewer people are available to apply because of a decline in the number of law school graduates and the percentage of people passing the bar during the pandemic.

The number of prosecutor applicants in Miami-Dade County, Florida, for example, had decreased to 300 people per year in 2023. A top prosecutor in the office told Gershowitz that in 1991, when he was hired, there were 2,000 applicants for 23 job openings.

In Colorado’s 17th Judicial District, north of Denver, the district attorney sought to fill 10 job openings in August 2021. He received only one or two applications, and all the positions were still unfilled in March 2022.

The vacancies “are actually bad news” for criminal defendants, Gershowitz wrote.

Overworked prosecutors will take longer to recognize when a defendant is innocent, have less time to screen cases to send to drug court, and have less time to determine which defendants are less culpable and deserving of a favorable plea deal.

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3. Child-porn prosecution of Netflix for ‘Cuties’…

Prosecutors

Child-porn prosecution of Netflix for ‘Cuties’ film looks like ‘mosaic’ of bad faith, 5th Circuit says

By Debra Cassens Weiss

December 21, 2023, 9:35 am CST

A federal appeals court has upheld a judge’s preliminary injunction barring a Texas child-pornography prosecution of Netflix for streaming the movie Cuties, agreeing with a Netflix lawyer that the case looks like a “mosaic” of bad faith.

The 5th U.S. Circuit Court of Appeals at New Orleans ruled for Netflix in a Dec. 18 opinion by Judge Don R. Willett, an appointee of former President Donald Trump.

Law.com and Law360 have coverage, while How Appealing links to additional articles.

The appeals court described Cuties as “a controversial film starring preteen girls who participate in a dance competition.” According to a description by the Cato Institute, which joined an amicus brief supporting the injunction against prosecution, the message of the film is critical of the influence of social media on the young girls, whose “sexualized routines” copied what they saw online.

In one scene, the girls watch a video on their phones in which a dancer briefly flashes her breast. Netflix said it can verify that the dancer was older than age 18 at the time of filming.

Tyler County, Texas, District Attorney Lucas Babin at first obtained an indictment charging Netflix under an obscenity law that was later struck down as unconstitutional under the First Amendment in a different case. Babin dropped the charge but obtained four new indictments under a law that bans promotion of sexual conduct by a child younger than age 18.

Three of the indictments were based on three different clothed minor girls in the film, and the fourth was related to the actress with the exposed breast.

To obtain the indictment, Netflix alleges, Babin “restricted the grand jury’s view to only those scenes and stills that he [had] personally curated and stripped of their proper context.”

Netflix sued in federal court, seeking an injunction against Babin’s prosecution.

The Younger abstention doctrine, which is named after the U.S. Supreme Court’s 1971 decision in Younger v. Harris, is not an impediment, the 5th Circuit said. The doctrine bars federal court interference with state court proceedings, as long as the defendant has an adequate opportunity to raise constitutional challenges in the state forum, Willett explained.

“A state has no legitimate interest, however, in a prosecution brought in bad faith or to harass,” Willett wrote. “Nor, for that matter, does a defendant have an adequate opportunity to assert constitutional violations in the state proceeding when the prosecution itself is the constitutional violation. Thus, in exceptional cases in which a state prosecutor is credibly accused of bad faith and has no reasonable hope of obtaining a valid conviction against the defendant, comity-infused deference gives way, and a federal court may exercise its equitable power to enjoin the prosecution.”

The 5th Circuit said it can’t conclude that a district court erred in enjoining the prosecution “at this preliminary stage and on the fact-intensive record before us.”