| Chapter
10
How Prosecutors Work
By Steve Weinberg
Journalists can begin with the annual budget to study the effectiveness and fairness of administration. Are resources available to combat high-tech crimes such as identity theft and credit card fraud? In an era of real and alleged terrorist threats, how does the district attorney participate with homeland security task forces? Does the district attorney consider the office a community prosecution site that actively involves those outside law enforcement in the crime-fighting function? Those measures might include assigning assistant prosecutors on the basis of geography, so they become familiar with individuals in specific neighborhoods; meeting regularly with neighborhood associations; and visiting schools. Does the chief prosecutor maintain a separate domestic violence unit with specially trained lawyers and investigators? The answer to that question might be tied to budget, but also might reflect a chief prosecutor’s world view.
Within academic law, technical but decipherable books about prosecutors are available. Bennett L. Gershman, a former prosecutor who teaches law at Pace University, is considered a leading authority. His frequently updated textbooks “Trial Error and Misconduct” and “Prosecutorial Misconduct” provide a thorough education.
In an ideal situation, after a journalist establishes a system for tracking each arrest and its aftermath, she will begin learning everything possible about the elected prosecutor, plus everything about the other lawyers in the office.
Understanding the human element in each district attorney’s office and U.S. attorney’s office is vital to effective journalism. Focusing occasionally and superficially on the elected prosecutor while knowing almost nothing about the staff lawyers who handle most of the cases constitutes the path to ignorance.
When journalist Sean Flynn wrote about prosecutor Ralph Costas Martin II in the book “Boston D. A. : The Battle to Transform the American Justice System” (2000), Flynn researched Martin’s life as any talented biographer would learn about a subject’s past.
How Martin viewed himself influenced the type of assistant district attorneys he hired. Martin sought young trial prosecutors who understood the concept of elevating justice over winning at all costs. He would ask job candidates how they would handle the following scenario: On a busy afternoon, with three dozen cases stacked up, you, the assistant district attorney, are approached by defense counsel in one of the cases. “My client will plead out if you recommend probation," the defense lawyer says. You skim the file, which contains nothing but a police incident report. It says the officer stopped the defendant’s car because the driver allegedly made a “furtive gesture.” While searching the car, the officer said, he found a small amount of cocaine. What, the job candidate is asked, should a good prosecutor do?
The obvious answer seems to be “accept the plea.” But that is not the answer Martin wanted. Instead, he hoped to hear the candidate say he would ask the judge for a delay, in order to question the police officer. The first matter would be to hear the description of the furtive gesture. Sometimes, Martin believed, police used such language to cover up an unwarranted stop of a racial minority or some other targeted group. Unless the police officer offered a plausible explanation, Martin hoped the candidate would recommend dismissal of the case. Why? Because an alert defense lawyer or judge would understand the traffic stop served as a pretext, thus leading to suppression of the evidence that resulted—the cocaine. An assistant district attorney accepting a plea from the defendant might squander trust under the circumstances, while doing nothing to halt the police officer’s improper behavior.
Sources Beyond the Prosecutor's Office
Prosecutors, defense lawyers and judges seem to agree that flaws in the criminal justice system become exacerbated when opposing counsel fail to trust each other. Interviews with defense lawyers about which prosecutors they trust, which they mistrust, and why, will often provide crucial insights that can be used to understand what is occurring in a specific case.
To become acquainted with the elected district attorney, the appointed U. S. attorney and the deputies, journalists can locate:
- The prosecutor’s law school professors and classmates
- Current and former office colleagues
- Law review articles with the prosecutor’s byline
- Transcripts in cases that reached trial
- Judges who have presided in cases involving the prosecutor
- Appellate court decisions regarding convictions won by the prosecutor
- Police officers and forensic laboratory criminalists who have collaborated with the prosecutor
- Defense lawyers who have opposed the prosecutor
- Disciplinary rulings by the state bar association, the state Supreme Court, or, in the instance of federal prosecutors, the Justice Department’s Office of Professional Responsibility
Writing feature stories about the elected prosecutor and the appointed assistants is an effective way to build trust and learn about each member of the team. Those feature stories might be linked to a specific case in the news. But such get-acquainted stories often serve their purposes more effectively if researched, written and published when the subject is not making headlines every day.
During the research stage, journalists mine their sources to gauge for each prosecutor if she is the type to look at cases with tunnel vision. Almost surely the leading cause of wrongful convictions is drawing conclusions prematurely about the identity of the perpetrator. Such misguided thinking closes a prosecutor’s mind to proper recognition of potentially exculpatory evidence.
Some Basic Questions
While researching individual prosecutors, journalists can do their best to determine how each prosecutor rates regarding practices that might compromise justice in small and big ways—the biggest being wrongful conviction. Questions include:
How many arrests made by police does the prosecutor decide to drop without a criminal charge? Do police complain about what they see as an overabundance of kicked cases?
Does the prosecutor file criminal charges despite the lack of physical evidence? Sometimes those cases are winnable and justifiable. But a complete lack of physical evidence should serve as a sign to a journalist to dig deep.
Does the prosecutor file criminal charges despite failing to develop a coherent theory of the crime? An incoherent theory sometimes means sloppy thinking coupled with lack of evidence. One wrongful conviction I covered intensively began with the murder of a service station attendant. The police and the prosecutor lacked physical evidence and could not produce eyewitnesses. For reasons I could never discern, they theorized that three individuals—two men and a woman—visited the service station together. Yet they lacked evidence that the woman had ever met one of the men. Furthermore, when they finally made an arrest, they charged only the woman. The prosecutor skirted the logical inconsistencies by downplaying the theory of the crime to the jury. The entire case rested on the obviously compromised testimony of two jailhouse informants. The all-white jury bought the unlikely scenario, however, putting the black female defendant in prison. Except for one juror holding out on the death penalty vote, the defendant might have been executed by the state before new evidence freed her two decades later.
Continue to the next page in "Chapter 10: How Prosecutors Work" >>>
<<< Return to the previous page in "Chapter 10: How Prosecutors Work"
|
