| Chapter
10
How Prosecutors Work
By Steve Weinberg
Introduction
[Author’s note: Some of the philosophy and much of the procedure useful in writing about prosecutors can be found elsewhere in “Covering Crime and Justice,” especially in portions of Chapter One, “The Crime Beat,” by Dave Krajicek and portions of Chapter Eight, “Covering Criminal Courts,” by Maurice Possley.]
For most of his career, Mike Nifong received little attention outside Durham County, North Carolina, where voters elected him district attorney.
In 2006, Nifong decided to prosecute Duke University lacrosse players who allegedly gang raped an escort service dancer.
What happened later demonstrated vividly that prosecutors possess untrammeled power to charge individuals with crimes, even individuals who are innocent. In 2007, Nifong dropped the case after causing incalculable direct harm to dozens of individuals and families, while spending precious taxpayer dollars on a wrongheaded prosecution. He resigned from office and was disbarred from law practice.
What is unusual about the case is not Nifong’s wrongheadedness or the damage done by it. What is unusual is that the public found out about a prosecutor misusing power. Journalists, defense lawyers and disciplinary authorities did their jobs well, in plain view. Most of the time, prosecutors—whether doing their jobs well or poorly—function without their constituents knowing anything. Joseph Neff, a reporter at the Raleigh News & Observer, covered the conduct of Nifong as it unfolded, affecting public perception, then published an insightful multi-part retrospective. Earlier in his career, Neff’s skilled investigation of an alleged wrongful conviction led to the exoneration of an inmate.
If only more reporters like Joseph Neff (plus his daily and project editors) inhabited newsrooms.
Every county has an elected or an appointed prosecutor. (As of 2007, only Alaska, Connecticut, New Jersey, and Washington, D.C., use the appointment process.) Some prosecutors serve more than one county, which brings the count of local chief prosecutor across the United States to 2344. Each of those prosecutors—most commonly called a District Attorney or a Prosecuting Attorney—hires lawyers, investigators and support staff. A 2006 study by Steven W. Perry in the Bureau of Justice Statistics, Office of Justice Programs, United States Department of Justice notes that the number of employees nationwide totals about 78,000—lawyers, investigators, victim advocates and support staff.
Voters elect an attorney general in most states. (In Alaska, Hawaii, New Hampshire, New Jersey and Wyoming, the attorney general is appointed by the governor, and by the mayor in Washington, D.C. In Maine, the legislature chooses the attorney general. In Tennessee, the state supreme court chooses the attorney general.) Each attorney general hires lawyers, investigators and support staff. They rarely handle local criminal trial work, unless the local prosecutor requests assistance. Instead the lawyers for the state concentrate on appeals by defense lawyers meant to set aside convictions won by district attorneys. That appellate function is almost always ignored or, at best, sporadically covered by journalists.
How Federal Prosecutors Differ
Furthermore, every state is served by at least one federal prosecutor, tapped by the U. S. attorney general, who in turn is appointed by the president of the United States and confirmed by the United States Senate. After Senate confirmation, each state-based United States attorney hires lawyers, investigators and support staff. They prosecute crimes that have been deemed federal offenses by the United States Congress. The sometimes political nature of the U. S. Attorney job has been especially well-publicized during the presidential administration of George W. Bush, who removed at least nine U. S. Attorneys during his second term. U. S. Attorneys and local prosecutors both must deal with politics while they make case-by-case decisions. The politics affecting U. S. Attorneys often emanates from above at the Justice Department or even the White House. With district attorneys, the politics usually come from below or sideways, because there is no “above.”
In most ways, journalists can use the same coverage techniques for local and federal prosecutors. It is wise to keep at least two big-picture differences in mind, however.
First, U. S. attorneys are less accountable to the citizenry than are district attorneys, because the federal prosecutors are picked in a distant locale (Washington, D. C.) rather than elected. Second, the federal prosecutor’s reach is wider and deeper. The federal laws they enforce affect citizens everywhere, not just in a county or a state. Thousands of federal laws exist. State and local governments sometimes mimic the federal government in the content of the laws they approve and how much priority they give to enforcement. So, for example, a crackdown on drug possession offenses by the U. S. attorney might lead to more aggressive handling of drug possession cases by district attorneys.
All of this adds up to a lot of prosecutors who need scrutinizing by journalists, for all sorts of reasons. Prosecutors, however, usually receive coverage in only two instances—at election time, and when a major case goes to trial.
Because most prosecutors serve four years between elections, and because in most jurisdictions at least 95 percent of all charged crimes never reach trial, a significant percentage of the wise decisions and stupid decisions, the ethical decisions and venal decisions, go unreported by journalists. That means elected prosecutors and the lawyers they employ can, and sometimes do, bend and break the rules. Defense lawyers are generally powerless to remedy the situation. Judges possess the power, but rarely exercise it, in some instances because the judges are former prosecutors. County executives could serve as checks on district attorneys through control of the budget, but many fear that budget reductions would lead to a soft-on-crime label.
The reasons for inept coverage are numerous: Journalists view prosecutors as virtuous generals in the war against crime, journalists fail to understand that most of a prosecutor’s job takes place behind closed doors, and the traditional newsroom beat system known in shorthand as “cops and courts” omits the public official who is the linchpin. Unscientific surveys indicate that in many newsrooms, many of the journalists cannot name the elected district attorney, and hardly any of those journalists can name the U. S. attorney. As for name recognition of the powerful trial lawyers who assist the district attorney and the U. S. attorney, it approaches zero.
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