“Flagrant Conduct” and the Perfect Prosecution Part 2

By David Yin

In last week’s post, I wrote about how “perfect plaintiffs” can be outcome-determinative to the resolution of a case, or the crafting of a rule. Today we return to Dale Carpenter’s book Flagrant Conduct on Lawrence v. Texas,and the importance of a “perfect prosecution.”

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:

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…. Being branded a criminal class was also an invitation to discrimination and even violence….

Yet 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 perfect plaintiffs (as perfect as the best public relations team could make), they also needed a willing prosecution. Thus one particularly fascinating aspect of Flagrant Conduct was how a false police report about a man waving a gun turned into one of the most important civil rights cases in history.

The first fortuitous figure, for the gay rights movement (if not for Mr. Lawrence), was the “priority unit” 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 arrested two mothers waiting for their kids in a no-parking zone in front of a middle school. In an interview with Carpenter, Quinn boasted, “Actually, I have the largest Internal Affairs [complaint] file in the department.” 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 “well in excess of a minute.” It was Quinn who charged Lawrence and Garner with violating the sodomy law, though the plausibility of this observation strains logic and imagination.

A second fortuitous event involved the fines for Lawrence and Garner. Despite internal disagreement within the District Attorney’s office over whether to even defend the law, with some prosecutors urging the director of the appellate division “that [they] had no business trying to defend it”, the DA’s 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–the 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.

In Texas, the minor crimes first heard in the Justice of the Peace court must be heard de novo in a county criminal court before further appeals. As Carpenter explained: “The court clerk’s “record” 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.” The Lawrence defense team was handed a third boon with the assignment of the D.A.’s 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.’s office. As the prosecutor, Beavers could have ended the Lawrence case 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’s testimony (e.g. Quinn’s) 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’s report. Yet Beavers also understood that both Lawrence and his defense team had a bigger prize than non-prosecution, and “did 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.”

The story of Lawrence not 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’s and chief prosecutor’s 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’s 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 saga 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.

(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.)


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