From The National Center for Prosecution Ethics National Rules and Standards:
3-1.2(c): The Function of the Prosecutor
The duty of the prosecutor is to seek justice, not merely to convict.
Seeking justice is a broad term, but attaching it to my trial last week, it appears that it means the prosecutor's duty was to present evidence to a jury and ask them to convict, because she believed the 6 Defendants were guilty beyond a reasonable doubt.
The jury disagreed. They acquitted 4 of the 6 Defendants.
That's justice.
But society disagrees. Our "Law & Order" society believes that an acquittal is not justice. Why is that? Because we thirst for the bad guy to be caught, and sent to jail. We are conditioned to believe that anything else is the result of a bad prosecutor or slick defense attorney.
We can't bring ourselves to believe that evidence is presented in a court of law and a jury determines that it's not enough, or God forbid, that the Defendant is innocent.
Helping this twisted notion of justice, is the Department of Justice and their method of announcing trial results.
The press release on my case:
"Jury Convicts 2, Acquits 4 in $21 Million Dollar Mortgage Fraud Scheme."
No, I'm kidding. Here's the title:
"2 Miami-Dade residents convicted in 21 million dollar mortgage fraud scheme."
Nowhere in the press release does it mention the acquittals.
Why? When the Defendant's were indicted a press release was sent to the media. Why aren't they entitled to a press release when they are acquitted?
Because that is not justice
Because the goal is not to seek justice. It is to seek convictions.
Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.
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So what do you do about something like this? Give your own quote when (if) the media call you? Issue your own press release? Do nothing, because your clients wouldn't want you to feed the media?
ReplyDeleteBrian: I think that defense counsel is responsible for issuing press releases on acquittals. Margaret
ReplyDeleteDid you really mean to use the word "entitled" in discussing press releases?
ReplyDeleteWindy,
ReplyDeleteI will do nothing, except ask the US Attorney's Office why they didn't include the acquittals. I know the answer, but would like to hear from them. If it was in the release and I received a call, I would simply say that we appreciate the jury's service and that my client is thankful for his freedom.
Margaret,
Under what theory is it defense counsel's "responsibility" to issue a press release?
This also goes to NSK's question about whether I meant to use the word "entitled."
Yes.
Here's the chronology:
1. The prosecutor indicts.
2. A press release goes out saying what they think my client did and how much time he's facing, with of course a "thank you" to all the law enforcement that busted my client."
3. There is an acquittal, where 2 clients are convicted.
4. The prosecutor sends a release touting the convictions.
I think my client is "entitled" to have the government tell the whole story. The reason it doesn't happen, is because they are not in the business of justice being an acquittal. Justice to them is just a conviction.
Not all prosecutors are so aggressive as the ones you faced. My local prosecutors seem to have the goal to get rid of cases as quickly and expediently as possible. Very favorable plea bargains are there for the asking for even serious felonies where there is strong evidence (confessions, audio or video of the crime itself, etc.). It really does vary by locality. Go one country over and they would try a case that my prosecutors are happy to be rid of in a plea bargain.
ReplyDeleteCongratulations again on successfully defending an actually innocent person.
I would also say that law and justice are not related. Justice is a subjective term that many people can differ on. "Legal" can be quantified and tested in court.
ReplyDeleteSome prosecutors are less aggressive (read lazy or scared) but the fact is:pleas still result in convictions. I have had clients plead No Contest to a minor charge just to avoid the cost, hassle and uncertainty of a trial.
ReplyDeleteThe aforementioned acquittals are incentive for some Prosecutors to offer decent bargains in exchange for guaranteed convictions. Ask nearly any prosecutor who isn't a newbie and chances are they know their conviction rate.
Also, "Generous" plea offerings tend to go hand-in-hand with the unethical "kitchen sink" charging documents. You know the ones where the charges are ridiculously cumulative, repetitive, or questionable but the state "generously" offers to drop the 9 lesser counts for a plea to the top or an attempt at the top count.
I was told (in a suitably conspiratorial tone) that this is a win/win practice for the State and the Defense Bar - they get their conviction on a "bad guy" and we get to look like we earned our money!
As for Justice being subjective, I question your use of the word Justice. How subjective is: was the defendant guilty, beyond a reasonable doubt, of the crime as charged? Yes or no. There is no subjectivity in Justice. If there is doubt, then not guilty, period.
If the Defendant murdered her husband and everyone "knows" she did but she is accused of murdering a stranger she has never harmed, Justice demands she go free.
Variations on the oft heard phrase, "he may not be guilty of THIS charge but he's guilty of something," is itself criminal. That is the subjective moral thing people refer to as justice. The State is permitted to punish a specific bad act with proof, No one should be punished by the State because they are a Bad Person. This is the Jurisdiction of the Supreme Being, God, Karma, the Force or whatever it goes by in your world. That type of judgment can never be entrusted to the State or a Jury.
Here is an example of the difference between law and justice. Let us say your client, while drunk, drove his car into a tree. He blows a .20 (yup, I arrested a guy on just such case) BAC. The law in my state allows for penalties ranging from nothing to 1000$ in fines and/or 6 months in jail. I am sure MADD's idea of "justice" would be a full 6 months in the county jail and the full fine. Your (and the client's) idea of "justice" would be a 1$ fine and he walks away, or even better, an acquital if you roll the dice on a trial.
ReplyDeleteThere is a clear range of what the law allows for that case, but what is "just" in that case depends entirely on who you ask.