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10
How Prosecutors Work
By Steve Weinberg
How can journalists report systematically and wisely on local prosecutors? Journalists who devote the effort needed to learn the prosecutor’s job, and the time needed to cover life-and-death decisions made in private day after day can serve readers, viewers and listeners well.
The theory of the prosecutor’s job is easy to express, not so easy to carry out. It can be explained in one word. The word is “justice.” The prosecutor is supposed to ensure fair treatment of all parties, and that duty is supposed to trump winning. A U. S. Supreme Court ruling from 1935 is quoted often in law textbooks, and is worth reading in full. The key phrases from Berger v. United States state the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore…is not that [he] shall win a case, but that justice shall be done…He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.”
Sophisticated DNA testing has demonstrated in hundreds of cases around the nation that prosecutors put innocent people in prison. Wrongful convictions occurring over and over for the same reasons show that some prosecutors are more interested in winning than in justice. The trouble is, when the wrong person goes to prison, nobody wins. In fact, everybody loses because an injustice has compromised confidence in the system, while the real perpetrator of the crime escapes punishment.
In 2003, the Center for Public Integrity (www.publicintegrity.org) published a study called “Harmful Error: Investigating America’s Local Prosecutors.” I led a team of researchers for three years to produce the study. It demonstrated beyond a doubt that prosecutorial misconduct, sometimes leading to wrongful convictions, occurs regularly in jurisdictions across the nation. The backbone of the study consisted of locating, reading and categorizing 11,452 cases in which appellate judges reviewed allegations of prosecutorial misconduct.
Documenting such misconduct is admirable and important. But journalists should monitor prosecutors every day for reasons unrelated to writing exposes. Rather, journalists should monitor prosecutors because every crime affects lives in wrenching ways. Whether and how each criminal is punished is important to those who consume journalism.
Following Major Cases
The ideal is for the journalist covering the district attorney—perhaps in collaboration with the journalist covering the police and sheriff—to log every major arrest, then follow the case until final resolution. Such a set-up is more taxing in a large county than a small county, but is achievable thanks to spreadsheets loaded into newsroom computers and computerization of crime records in county offices.
For each case, reporters and editors need to stay alert, to ask questions until they receive satisfactory answers:
Did the prosecutor charge the arrested suspect with a crime, or let the suspect go free? If the suspect is freed, what does that say about the quality of police work, and about police-prosecutor cooperation?
Does analysis of cases indicate that the prosecutor is influenced by the ethnicity or social/economic class of the suspect or the crime victim?
If the suspect is charged, did the prosecutor offer a plea deal, and did the defendant accept? When a plea bargain occurs, the prosecutor is acting as judge and jury, all outside of public scrutiny—meaning journalists must build trust with the prosecutor, the defense lawyer, the victim and the defendant to learn the outcome. Unfortunately, many defense attorneys, while criticizing prosecutors privately, will not go public. Angela J. Davis in her book “Arbitrary Justice: The Power of the American Prosecutor,” comments that when serving as a public defender, she refrained from filing complaints: “I would have become persona non grata to all of the prosecutors in that office, making it difficult for me to effectively negotiate with them in my representation of other clients.”
In the normally small percentage of cases going to trial, why did they get that far?
During pretrial discovery, has the prosecutor shared material with the defense, as required by professional canons and judicial rulings? (See especially the United States Supreme Court decision Brady v. Maryland.)
During jury selection, did the prosecutor impermissibly try to exclude potential jurors on the basis of race, gender, religion or age?
At the trial, did the prosecutor make inflammatory or other inappropriate comments during the opening, the closing, direct examination of witnesses or cross-examination of defense witnesses?
Many prosecutors’ offices publish manuals for the assistant district attorneys. Those manuals sometimes explain in detail how to ensure that justice is placed ahead of winning. Although the manuals are not normally shared with journalists, asking for a copy often yields positive results. Lots of district attorneys are proud of their office manuals, and do not want to surrender an opportunity to tell the public, through the journalist, that the office is run according to strict standards.
In San Diego County, for instance, the office manual carries the title “Legal Policies Guide.” The thick, loose leaf notebook opened with a chapter on “crime charging,” which discusses when to issue a case as a felony or as a misdemeanor for 20 different types of crimes. The second chapter focused on prosecuting homicides and sexual assaults. The remaining chapters examined the operations of special teams within the office; disposing of felonies and misdemeanors; using subpoenas wisely; what must be disclosed to the defense during discovery; handling sensitive witness and victim issues; pre-trial preliminary hearing procedures; convening grand juries; proper trial conduct; seeking writs; and responding to appeals.
U. S. attorneys use a manual issued by the federal Justice Department in Washington, D. C. Journalists should ask for the manual from the nearest U. S. attorney’s office or from main Justice, and learn it well. Given the crimped interpretation of the federal Freedom of Information Act, it is usually best to avoid a formal request, instead obtaining the manual informally from an already existing source. Portions of the manual are available online, at www.usdoj.gov/usao/eousa/foia_reading_room/usam.
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