| Chapter
10
How Prosecutors Work
By Steve Weinberg
The overriding message is the wide latitude of U. S. attorneys given the simultaneous jurisdiction with district attorneys piled upon the unique federal jurisdiction inherent in certain laws. That means, for example, if a California resident grows marijuana for medical reasons as allowed in state law, he can be prosecuted by the U. S. attorney for alleged violations of a federal law with no exception for medicinal use.
Journalists should inquire about how on-the-job training is conducted, to supplement what is presented inside the manual. In St. Louis, for instance, one elected prosecutor insisted her newly hired assistants sit as second chair in at least two trials; spend time with specialized units such as sex crimes; and attend classes at an institute in Columbia, South Carolina, affiliated with the National District Attorneys Association.
The amount of turnover among assistant district attorneys can be documented by journalists. A high turnover rate might mean inept management or low salaries that prevent hiring the best students from law schools. It is a near certainty that high turnover will lead to an increasing number of poorly thought-out plea negotiations and trial performances.
Information on the Web site of the district attorney will also provide a journalist with standards the prosecutor has vowed to uphold. Some district attorneys go beyond a static Web site to send regular reports to journalists. No matter how self-serving, the Web sites and reports almost always contain useful information about philosophies, standards and specific cases. One of my favorites arrives regularly from Ray Larson, the prosecutor in Lexington, Kentucky. (The official title there, rather than district attorney, is Fayette County Commonwealth’s Attorney.) The subject line of each email from Larson reads “A message from Ray the D. A.” His photograph is displayed prominently.
Prosecutors and Politics
Journalists ignore the political ambitions of district attorneys at their peril. Some district attorneys seek governorships or judgeships or legislative seats, and seem to make some of their decisions about specific cases based on those ambitions. Other district attorneys simply want to retain their current job, and so curry favor with voters through less than legally sound get-tough-on-crime campaigns. Quite a few district attorneys run unopposed, and thus can dispense with political motives in their decision making. Other district attorneys, however, face primary election opposition within their own political party or general election opposition from a competing political party. Frequently, district attorneys are challenged by ambitious assistants who they have hired. Those election battles are often especially interesting and informative, because the assistant may disclose questionable or downright improper practices by the incumbent.
The Web site of the National District Attorneys Association (www.ndaa.org)
contains useful perspective, plus research papers, a magazine and books by prosecutors, for prosecutors. Books available through the prosecutors’ organization include “The Prosecutors’ Deskbook: Ethical Issues and Emerging Roles for 21st Century Prosecutors” and “Doing Justice: A Prosecutor’s Guide to Ethics and Civil Liability.”
District attorneys rarely write books meant for general readers about how the office functions day to day. A few books by prosecutors published recently, to good effect, include “The D. A. : A True Story” by Lawrence Taylor (set in Los Angeles, 1996); “Ready for the People: My Most Chilling Cases as a Prosecutor” by Marissa N. Batt (also set in Los Angeles, 2004); “Down and Dirty Justice: A Chilling Journey Into the Dark World of Crime and the Criminal Courts” by Gary T. Lowenthal (set in Maricopa County, Arizona, 2003); and “Scoundrels to the Hoosegow: Perry Mason Moments and Entertaining Cases From the Files of a Prosecuting Attorney” by Morley Swingle (set in Cape Girardeau County, Missouri, 2007).
Web sites from defense attorneys provide enlightening perspective, starting with the National Association of Criminal Defense Lawyers (www.nacdl.org).
Almost certainly the most insightful recent book about prosecutors from an oppositional perspective is “Arbitrary Justice: The Power of the American Prosecutor,” by Angela J. Davis (2007). Lots of public defenders and private practice defense lawyers regularly suspect the actions and motives of prosecutors, so Davis, formerly director of the Washington, D.C., Public Defender Service, is no lone renegade. But many of those defense bar critics keep their suspicions to themselves. Davis, on the other hand, decided to go public, in book form. Davis is a law professor at American University. Her overall theme—that the power of prosecutors is considerable and untrammeled—is presented persuasively. Davis shows over and over with specific examples that prosecutors possess the means to do whatever they please without fear of punishment.
During her tenure at the Public Defender Service, Davis says, “I noticed that prosecutors held almost all of the cards, and that they seemed to deal them as they saw fit. Although some saw themselves as ministers of justice and measured their decisions carefully, very few were humbled by the power they held. Most wanted to win every case, and winning meant getting a conviction.”
Take plea bargaining, for example, which allows prosecutors to act simultaneously as judge and jury away from public view. Davis explains how prosecutors sometimes offer attractive or unattractive plea bargains based on factors that should be irrelevant, including “a particularly good or bad relationship with the defense attorney”; intense media attention to a high-profile case; or the race or class of the victim and the defendant.
Check the Data and the Budget
Non-partisan research organizations can help journalists study prosecutors. The job performance of each U. S. attorney office regarding all sorts of crimes is evaluated on a regular basis by the Transactional Records Access Clearinghouse, known by the acronym TRAC (trac.syr.edu). It is based at Syracuse University. One of the two co-directors is David Burnham, a former New York Times reporter. The information TRAC staff collects and computerizes can show, for example, which U. S. attorneys tend to ignore white-collar crime, which are the most aggressive prosecuting drug dealers, and so forth.
As TRAC data suggests, all chief prosecutors are administrators as well as law enforcement officers. Hiring and firing decisions are obviously part of the administrative function, and ought to be studied by journalists in terms of experience levels, gender and ethnic equity, among other measures. The median annual budget for a local elected district attorney is about $355,000. (In big cities, the budget will reach many millions.) Some prosecutors rely entirely on county government for their budgets. Others seek state legislative appropriations and federal grants.
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