In a comment on Mark Bennett’s post criticizing a Colorado district attorney’s plan to offer cash bonuses to her deputy prosecutors who participate in at least 5 trials in a year and win a felony conviction in at least 70% of them, I remarked:
I agree with Gerry Spence: If a prosecutor is doing his job right, he should never lose at trial.
I finished my second term having tried many more cases, none of which I lost, not that such a record stands for much. With all the power prosecutors possess, they ought not lose cases. The wrong case, the unjust case should be rejected in the prosecutor’s office before he seeks an indictment.]
I used to think that was right, but no longer.
Just as sometimes the defense has to try cases that are probably losers (and no criminal-defense lawyer worth his salt has never lost a jury trial), sometimes the State has to try cases that could go either way, and let the jury decide.
A prosecutor could easily bat 1.000 by selling the hard cases cheap. But that’s neither good lawyering nor, I suspect, justice.
RE: ” Gerry Spence: If a prosecutor is doing his job right, he should never lose at trial.” I simply do not understand this concept: Define “winning” (no Charlie Sheen quips please). Define losing.
As a former prosecutor for 14 years I received many “not guilty” verdicts that were actually “not proven beyond a reasonable doubt verdicts. No war story beating of my chest here – maybe a “better prosecutor” could have carried the day – but I didn’t and I still to this day feel “I did my job right”.
I dismissed and received no bills on many cases that some prosecutors might see as losing – but it was the right thing to do. My personal definition of justice is an abstract goal to strive for, but must be tempered by “The Rules”. In short it is this: “Justice: That state of affairs that exists when all people get what’s coming to them”.
In a simple black and white comparative example: For the innocent, justice would be never being arrested, charged or in the alternative a dismissal or not guilty. To the guilty, with all rules being followed by all parties in the C.J. System, that would be an arrest, charge and conviction.
Though imperfect, we still do have the BEST Criminal Justice System in the world. The best reward ANY prosecutor should ever hope for in this system is – at the end of the day, after doing their best, and following the rules – is that particular outcome of any particular case was the most “JUST” under the specific circumstances of that particular case give all the admissible evidence presented. In short – this concept of truly seeking justice ALONE, while doing one’s best, is the best and honest reward any prosecutor should ever need……..because we know it “ain’t for the money”.
I replied to Judge Standley:
Suppose a prosecutor is 80% sure, based on the evidence, that the defendant is guilty. Is it ethical for him to proceed to trial? I don’t think so, because he knows very well that 80% certainty is enough for many juries to convict. But if many juries are convicting based on 80% certainty, that means a whole lot of innocent defendants are being convicted. By regularly proceeding to trial in such circumstances, the prosecutor is guaranteeing that he’ll lose some trials that he should lose and — much worse — that he’ll win some trials that he should lose.
Suppose a prosecutor is 95% sure that the defendant is guilty — which is a little closer to what I think proof beyond a reasonable doubt requires. To my mind, a 5% doubt is still a reasonable doubt, and the prosecutor should [if he doesn’t dismiss the case outright] make an offer which would make it unreasonable for the defendant to proceed to trial. Now, in such circumstances you’ll sometimes have defendants who, either because they’re in fact innocent despite evidence showing it’s 95% likely they’re guilty or because they’re both guilty and unreasonable, refuse all reasonable offers and insist on proceeding to trial. Such a case might result in a guilty verdict. It might result in a hung jury. But if you get 12 jurors agreeing unanimously that the State didn’t prove its case beyond a reasonable doubt, especially given that jurors are notoriously not excessively fastidious about convicting people the State asks them to convict, I don’t see how that’s not a true black mark on the prosecutor’s record, and doesn’t call into question either the prosecutor’s trial skills or his wisdom in proceeding to trial in the first place. Prosecutors get to choose their cases, and there’s no shame in choosing them so that they virtually never lose. I’ve had the pleasure of visiting with the jury in the jury room along with the prosecutor and the judge after the jury acquitted my client in less than 30 minutes, and hearing them pointedly ask the prosecutor in so many words whose bright idea it was to prosecute the case. Although I was happy and relieved to have won (I knew juries are capable of anything), there was no hand-shaking going on between me and the prosecutor. I was glad to see the jurors applying salt to the prosecutor’s fresh wound, to see them adding insult to [the prosecutor’s failed attempt to cause] injury.
Granted, a prosecutor who only proceeds to trial in cases he’s almost certain to win, and who offers very reasonable plea offers to defendants who are 95% likely to be guilty, risks being seen as insufficiently aggressive by the electorate. Such a prosecutor might also be unpopular among defense attorneys who like to occasionally try beatable cases. But it seems an unbeaten trial record would also be a nice selling point at re-election time, along with the savings to the county in resolving most cases without trial.
Even in slam-dunk cases the prosecutor can and should offer the defendant something as consideration for saving him and the county the trouble of trial, e.g., a cap on the executed portion of the sentence that is less than the maximum the judge could reasonably impose after the defendant is convicted at trial. The prosecutor is truly abusing his discretion if his intent is to force a slam-dunk case to trial so as to get more trial experience and/or to improve his trial win-loss record.
BTW, I’ve come up with a definition of Justice that is similar to yours: Justice is the absence of crime. The “justice” that is doled out by the criminal “justice” system is Justice only in a derivative sense, i.e., only insofar as by deterrence, rehabilitation, [incapacitation] and/or (more controversially) retribution it tends towards or (more controversially) approximates the “absence of crime.” It is better that 100 guilty men escape than that 1 innocent suffer. The conviction of an innocent man is itself a crime. The escape of a guilty man is not.
I don’t mean to say by my comments above that a prosecutor who loses a trial is ipso facto a “bad” prosecutor. Marcia Clark and Christopher Darden, e.g., were of course right to try O.J. Simpson for murder, given the evidence against him. Although Vincent Bugliosi, among others, was highly critical of their performance at trial and argued that this is why Simpson got away with murder, it’s possible that Clark and Darden could have done everything right and still lost. Nevertheless, for the reasons stated above, such losses should be exceedingly rare. Bugliosi himself won 105 out of 106 felony jury trials during his career as a prosecutor. This conviction rate at trial was presumably due not only to Bugliosi’s ability and hard work but also to his discretion in deciding which cases to prosecute and what plea offers to make.