People v. State

Some defense attorneys who have blogs seem to be fans of D.A. Confidential, and revel in their professional cordiality. Me, not so much. Here’s #7 on his Top Eight list of why win/loss tallies are pointless:

7. None of us should be afraid to try the hard cases. Sometimes we have cases where we are convinced the person is guilty, but maybe for evidentiary reasons, we also know it’ll be hard to prove it. The defense knows it, too, so won’t plead. I think sometimes we have to try and convince a jury in those instances, even if the risk of losing is high. It’s simply the right thing to do. And, you know, sometimes when we do that, we win.

Yeah, and sometimes when you do that, you convict an innocent man. Congratulations.

Prosecutors should never lose. Losing for a prosecutor is a disgrace, and prima facie evidence that he’s personally and morally responsible for the imprisonment of innocent people.

UPDATE: I mean, do we take the requirement that guilt must be proven “beyond a reasonable doubt” before we’ll lock a human being up in a cage like an animal, and the adage that it is better that a hundred guilty persons go free than for 1 innocent to suffer, seriously, or not? In the video linked from the word “Congratulations” above, Tony Serra, a former prosecutor, tells the jury in his closing argument in the Ted Binion murder trial: “There’s an old adage in the prosecution world: It’s easy to convict the guilty; the real challenge is to convict the innocent!”

UPDATE II: The flip side of the above is what I wrote here:

The more ethically a prosecutor does his job — by only prosecuting defendants who given the admissible evidence are almost certain to be convicted after trial — the smaller should be the consideration necessary to induce a defendant to plead guilty, and the smaller the corresponding “trial tax.”

#1 and #5 on D.A. Confidential’s Top Eight list of why win/loss tallies are pointless are:

1. This isn’t a game. It’s about justice for victims, and at stake is often the freedom of defendants. Making it about me winning or losing risks distorting that.

. . .

5. If I’m winning all my cases, I should probably be pleading them out. Winning slam-dunk cases is proof of nothing.

Winning slam-dunk cases is “proof of nothing”? What’s he got to prove? I thought this wasn’t a “game,” and wasn’t about him winning or losing.

It may seem like the way I’m suggesting the criminal justice system should run would spell the end of jury trials, which would be very sad for real criminal defense lawyers and prosecutors alike.

Yes and no. Slam-dunk cases should be the only ones that go to trial, because they should be the only ones that are prosecuted. Proof beyond a reasonable doubt requires nothing less. Law is like poker, but shouldn’t be, especially when the life and liberty of a human being hangs on the river card. But the fact-finding function of the jury isn’t its most essential and fundamental function in a just criminal justice system anyway. Rather, it is the jury’s traditional right, largely eviscerated by judges, to judge the justice of the laws under which people are prosecuted which is its most essential and fundamental function. Restore this right to its rightful place, and lawyers will still have plenty to argue over and “prove,” even in “slam-dunk” cases.

While we’re on the subject of a “just criminal justice system,” let’s also acknowledge once and for all that the judicial notion that a hung jury doesn’t conclusively demonstrate that the prosecution failed to prove its case beyond a reasonable doubt and that retrying the defendant violates Double Jeopardy is completely retarded. But let’s imagine a compromise which takes into account the concern that lone whackos do sometimes make it onto juries in spite of voir dire: When a jury hangs, poll the jurors. If 11 jurors were persuaded beyond a reasonable doubt that the defendant was guilty, retry him. Otherwise — i.e., if more than one juror wasn’t persuaded beyond a reasonable doubt that the defendant was guilty — well, that’s pretty much by definition reasonable doubt, and the defendant should go free.

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