| Chapter
10
How Prosecutors Work
By Steve Weinberg
Will the prosecutor dismiss or reduce the original charge if new evidence emerges? While the prosecutor in Milwaukee, E. Michael McCann publicly expressed his concern about the inflexibility of prosecutors. Too many of them, McCann said, consider the original decision to charge a crime in a certain way as “garbed with a pristine quality, and any reduction therefrom appears to cast the district attorney in an adverse light…In some cases, an elected district attorney, not wishing to reach a politically unpalatable but proper decision, justifies inaction by saying ‘Let the jury decide.’ While this may appear to be graced with a patina of deference to the jury system, it is in fact an abdication of the district attorney’s responsibilities. The jury will rarely, if ever, know as much about the case as the prosecutor.”
Does the prosecutor file criminal charges solely on the basis of eyewitness testimony from the victim or a third party? If the witnesses identify a suspect from a lineup or an array of photographs, will the prosecutor file charges even if police fail to base their showing on research that suggests how to minimize misidentifications?
If the prosecutor bases the charging decision on a confession, does she possess a videotape from police, or other persuasive material assuring that police did not coerce the confession?
Is the prosecutor willing to file charges solely on the basis of testimony from jailhouse informants, despite the well-documented perils of that approach? If the answer is yes, what guidelines has the prosecutor developed to determine whether an informant is credible, rather than willing to say anything while seeking early release or better prison conditions?
Does the prosecutor use a grand jury of citizens to file charges in individual cases? If not, why not? If so, does she treat the grand jurors as rubber stamps, or as checks and balances on her considerable power? Court rulings at all levels require prosecutors to present possibly exculpatory evidence to the defense. But at the time of the grand jury proceeding, the majority of states do not require prosecutors to present exculpatory evidence, and that is generally the situation at the federal level. Given the already existing one-sided presentation of evidence to grand juries, the withholding of potentially exculpatory evidence seems especially difficult to justify. In 23 states and at the federal level, law or custom have led to grand jury indictments being used to charge major felonies. In other states, grand juries are rarely convened. Maurice Possley covers prosecutors’ use and abuse of grand juries in Chapter Eight of this guide.
Does the prosecutor impute too much authority to crime laboratory employees who work for the police? Crime laboratory employees usually use the job description of criminalist. Some are thoroughly trained forensic scientists, and act in an exemplary fashion, never overstating or understating the meaning of the evidence that has been analyzed. Others are poorly trained, lazy, dishonest, or imbued with a police detective’s built-in bias against suspects. Does the prosecutor rely entirely on the local police crime laboratory if available? Otherwise, is the prosecutor dependent on the state highway patrol crime laboratory? Some prosecutors arrange a contract with a private laboratory for DNA testing and other specific procedures. Does such a contract suggest the prosecutor mistrusts the law-enforcement laboratory? Or is the contract mainly to reduce turnaround time in high-profile cases?
Does the prosecutor share all files with the defense attorney, as required by judicial rulings? Does the prosecutor grant the defense access to all witnesses? If not, why not? When DNA material is available for testing, does the prosecutor allow the defense to join in choosing a reputable laboratory? If not, why not? In some jurisdictions, defense lawyers have filed lawsuits against prosecutors who refuse to share DNA or other forensic material. Some of those lawsuits have succeeded, and in at least a few instances have led to exonerations of the innocent imprisoned.
How does the prosecutor deal with individual victims and the tenets of the victims’ rights movement? Is she sometimes swayed beyond fairness by sympathetic victims?
Patterns of Misconduct
As a journalist follows a specific case, it is vital to consider the performance of the prosecutor in context. Is the police officer involved generally considered somebody who follows the rules, or who breaks the rules in the interest of winning at all costs? What about the criminalist assigned to the analysis of evidence in the police department laboratory? Journalists can check for patterns. In some jurisdictions, wrongful convictions or convictions overturned due to unfair procedures involve the same prosecutor-police officer or prosecutor-criminalist over and over.
In cases that reach the trial stage, or are affected in controversial ways by pre-trial motions rulings, journalists are wise to learn as much as possible about that judge. Is she a former prosecutor with a reputation among defense lawyers as sympathetic to the state?
Is she a former defense lawyer seen as hostile to prosecutors? Is she ruling on cases with no experience at all in criminal courts before her appointment or election to the bench? Many prosecutors and defense lawyers firmly believe the axiom “Once a prosecutor, always a prosecutor.” It is probably impossible to generalize sensibly. Some judges who are former prosecutors have said privately that it is difficult to refrain completely from sympathizing with their former brethren. Other former prosecutors on the bench have said privately that they tend to treat prosecutors who bend the rules with an extra measure of harshness, because those prosecutors are disrespecting their oath of office.
Reporters seeking statistical comparisons between prosecutors in their jurisdictions and those elsewhere may find useful data from the U. S. Bureau of Justice Statistics. A periodic survey of prosecutors, for example, gives average figures on staff and budget, grouped by categories of population served. (http://www.ojp.usdoj.gov/bjs/pros.htm.) Reporters should be careful that jurisdictions compared (if they are from different states) have comparable legal authorities and procedures, such as how a grand jury can be used.
Another useful federal compilation is Felony Defendants in Large Urban Counties. The most recent edition was published in 2006 using 2002 data (http://www.ojp.usdoj.gov/bjs/abstract/fdluc02.htm.) Here you will find data, for example, on the typical types of charges filed, the criminal history of defendants, bail releases, time span of case adjudication, and typical case outcomes—pleas or trials, and sentences—incarceration or probation. Keep in mind that this study involves the nation’s 75 largest counties. Whether or not your jurisdiction is one of those, take care to interview prosecutors’ staff and others about any seemingly significant variations between your area and others to make sure you know what factors may explain them.
When seeking the most informed perspective possible on the behavior of prosecutors, I often look for lawyers (or better yet, judges) who have experienced all the angles first-hand. Those individuals who have been employed as a police officer, a prosecutor and a defense lawyer in the same lifetime are relatively rare, but not that difficult to locate with a few inquiries among members of the local bar association.
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