Tuesday, July 12, 2011
The Prosecutorial Mind at Work
Early in my newspaper career I learned something about public prosecutors that I’ve never forgotten. The exact details of the case have slipped away with time, but it wasn’t a matter of life and death. The general outline was that a few people who had already embarked on criminal careers had been caught at something more serious than usual and were looking at some state prison time — at least until the judge ruled in favor of a defense motion to suppress evidence, without which the prosecution’s case evaporated.
When I went to interview the prosecutor, he was outraged in a way that went beyond displeasure with the ruling. It was personal. The defendants were guilty and a menace to society; the ruling was horrible and incomprehensible, and so forth. His hyper-emotional reaction stood in marked contrast to the matter-of-fact way the judge and defense attorney had discussed the case, which focused on what the law was and what the evidence showed. I gave the prosecutor a break and reported only a smidgen of what he had said in the heat of the moment.
Over the years I’ve known a lot of prosecutors, and have liked most of them. But even the best have been capable of a certain form of self-righteous moral indignation that can, and ought to be, a bit unnerving to the rest of us. They are, after all, in a facts-and-evidence business, and getting too carried away about the moral failings of the defendant can interfere with interpretation of the facts and evidence, sometimes with disastrous results.
Defense attorneys, in my experience, are less subject to that form of moral indignation. Part of it is probably due to the nature of their business. They have to take the cases that come their way, and in the vast majority of those cases their client is guilty as hell. If they get their client a fair hearing and any kind of a break, they’ve done a good job.
Or, as a longtime practitioner once told my Rotary Club, “When you’re a defense attorney, a win doesn’t mean getting your client an acquittal. It means getting him life without parole, instead of the death sentence.”
Prosecutors, on the other hand, start out by seeing themselves as the good guys out to get the bad guys. They don’t have to move forward with a case unless they believe in it, and it can be all too easy to start believing in it too much, ignoring certain inconvenient facts. (I’ve known a number of prosecutors who went on to be defense attorneys and judges, and most lost their high moral dudgeon when they did. That would support the conclusion that the tendency is job-related.)
Facts are stubborn things, and the absence of facts can be a particularly critical problem when you’re sure you’re right. When Law and Order was in its heyday, there would often be a scene in which chief prosecutor Jack McCoy (Sam Waterston) presented his case to District Attorney Adam Schiff (Steven Hill). If there was something wrong with it, Schiff would pounce.
“Hung jury,” he’d growl without missing a beat. “Find a witness who can put him at the scene of the crime or plead it out.”
Not every prosecutor, unfortunately, has a boss who will point out the problems with a case, and that’s why we have juries. They fail, too, and can be susceptible to prejudices of their own, but they remain the ultimate safeguard in the system. When there’s no case, or a seriously weak one, those twelve ordinary citizens are sometimes the only people capable of sending that message to the powers that be.