A prosecutor’s duty

A prosecutor’s understanding of their duty.

In exercising their awesome power a prosecutor should “Remember what it means to get it wrong. A criminal goes free. An innocent person is wrongfully punished. The community is less safe. The system has failed in its mission.”

So says a former prosecutor with experience as a defense counsel.

First, the prosecutor’s job is not to win cases. The job is to do justice. To do justice the prosecution must consider every aspect of the case. The evidence has to be evaluated from the perspective of the prosecution and the perspective of the defendant.

(And, the defense counsel must do the same. Take the time to think about the case as a prosecutor–consider how you would prosecute the case, what’s your evidence, what’s your theory, what are the holes, what are the problems with the evidence or the witnesses. By doing this you can be in a good position to explain to the client the problems and positives with the case. By doing this you can identify potential avenues of attack on the prosecution case. Have a co-counsel “act” as the prosecutor with the client, especially during preparations for a client’s potential testimony.)

All reasonable interpretations of the evidence must be considered. All questions of motive, opportunity and facility to commit the crime should be addressed. Then and only then can the prosecution confidently go forward with a plea offer and, if necessary, trial.

(Unfortunately, politics adversely affect the military prosecutor’s ability to do this. While “believe the victim” has an important role in how a complaining witness is treated outside the judicial process and courtroom, it cannot be allowed to affect the prosecutor’s duty to ensure a fair trial by thoroughly evaluating the evidence and the case as a whole. I have seen prosecutor’s get that ‘deer in the headlights’ look when they see their case fall apart in court. I attribute that to succumbing to the mantras surrounding sexual assault prosecutions in the military.)

As a prosecutor I made it a practice to give all of the evidence I had in the case to the defense. It was the right thing to do. How could defense counsel properly assess the case and advise his client without all the facts in the case? I made plea offers based on a true assessment of the case and did not try to weigh it down looking for room to negotiate. Finally, I never changed my prosecution stance based on the defense exercising its right to challenge all aspects of the case. At the end of the day my case would be strengthened or be shown to be weak, making for a better plea disposition or trial preparation. (Emphasis added.)

(The number one problem in military practice is discovery–the lack of it, or more common, the slow-rolling of production. I attribute this to a failure to timely prepare. Most of the discovery problems happen because a prosecutor doesn’t start to really prepare until a week or so before trial. It is then that they “discover” new evidence or new information. Because of that delay in preparing the defense is then forced to get late discovery. What is particularly frustrating in this situation is the prosecutor [and sometimes judges] express frustration that the defense then needs some delay to evaluate the discovery or conduct a further investigation–some of these prosecutors actually object to any delay [which they have caused]. The judge is understandably concerned that the trial date is affected and wants to pressure the defense to move forward.)

Wrongful convictions don’t happen without one or all of the following: poor police work (or dishonest police behavior); poor prosecution challenges to the investigation results (or incompetent or dishonest assessment of the case evidence); and insufficient consideration of the defense alternative scenario of the facts/evidence.

(As a senior trial counsel I always taught my counsel to do their own investigation, their own interviews, and not rely blindly on what was in the report of investigation. The defense doesn’t rely on just the investigation because, by experience, they know the ROI is not completely accurate, detailed, or is missing important information helpful to the defense. You should presume the ROI is biased toward only documenting information proving the crime; some investigators deliberately skew the ROI, others less deliberately because of their own confirmation bias–and yes, because they succumb to “believe the victim.”)

From the Buffalo News.

For more specific to military prosecutions, See Major G.K. Logan, “Zealous Advocacy, Professionalism, and the Military Justice Leader.” THE ARMY LAWYER. March 2017. Brought to us by Zeke Kennan.