After reading this heart-breaking piece in the New York Times (which outlined a true travesty of justice), I wondered what, if any, duties or principles are DA’s sworn to (or, at least, are expected to uphold).
Specifically, I wondered whether they adhere to a principle which in some sense corresponds to that held by defense attorneys, the latter being along the lines of, 'will present the best possible defense even if aware of their client’s guilt’.
In other words, do DA’s still prosecute to the best of their abilities even if they know their client is innocent? This may sound like a silly question, but after reading the Times article, and in light of the precedent now established by SCOTUS for the behaviour of prosecuting attorneys, I think it may not be so stupid.
(BTW, if you check out the linked article, and I hope you do, please be aware that it continues above and below Justice Ginsburg’s embedded dissent.)
I theory a DA should never prosecute a case where they have good reason to believe the defendant is innocent. An attorney is not allowed to perpetrate a fraud on the court. Of course a court is the finder of fact so unless the DA can see the evidence against the guy is patently bullshit they may well kick it to the court and let them make that determination.
In practice they do put people behind bars who they have reason to believe are innocent but that is not because they are supposed to railroad anyone the police drop in their lap into jail.
Also, I think it is rare for a defense attorney to have to defend someone they have good reason to believe is guilty. Doubtless that happens but think of it more that the defense attorney is there to see his client is dealt with in comportment with the law and gets the best outcome for them possible. This to prevent the State from running roughshod over people who might be screwed without proper representation.
It’s pretty common for defense attorneys to have good reason to believe their clients, in broad strokes, committed the actions they were accused of. Most people accused of crimes are actually guilty, it’s rare for a factually innocent person to be simply railroaded.
Prosecutors are absolutely not required to prosecute someone they believe to be innocent, because one of the jobs of the prosecutor is to decide who to prosecute. If they believe someone is innocent, it would be a violation of their professional ethics to prosecute them.
The DA’s “client,” so to speak, is the state. Do you mean is the DA required to prosecute to the best of his or her ability if they know that the defendant is factually innocent? Quite the opposite; the DA is ethically required to hand information that may point to a defendant’s innocence over to the defense, and if it reaches a certain level so as to make it plainly apparent to the prosecutor that the defendant is in fact actually innocent, the DA should dismiss the case (although in practice “close calls” where the prosecutor is uncertain may go to a jury to decide, as Whack-A-Mole says). The relevant section of the criminal code regarding duties of prosecuting attorneys in my state reads
(Secrete here meaning “conceal” and not “emit a secretion,” smartypantses). This is, among other things, a codification of the concept of “Brady evidence,” evidence which would tend to exculpate the defendant. Connick doesn’t stand for the prospect that prosecutors have no such ethical obligation, but for the very narrow question of under what circumstances the DAs office can be held civilly liable for failure to train prosecutors adequately regarding Brady violations.
Another famous quote on the role of the prosecutor:
“The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
As mentioned above it is common for attorneys to defend people who they think are guilty.
More I meant to say I think it is rare for an attorney to go all 12-rounds arguing passionately for the client they think is guilty. More often they see the evidence and work to get their client the best deal they can from the court.
Unquestionably lawyers have vigorously defended clients they thought were guilty and doubtless got a lot of them acquitted of all charges. Considering the vast majority of criminal cases never get to trial I think it is safe to say most defense attorneys are working out plea bargains for their clients.
I think what you are asking is whether DA’s have an obligation to prosecute if they “know” the defendant is innocent. The answer is “of course not.” DAs and ADAs swear an oath to uphold the constitution and the laws of their state. They are representatives of the people and officers of the court, and bound by certain obligations which include following the rules of evidence, the rules of discovery, etc.
Defense attorneys are also bound by the same rules, including that they may not present evidence that they know is false. Providing a vigorous defense doesn’t mean that you argue someone is innocent when you know they aren’t. It means that you protect your client’s right to a fair trial, that you confront witnesses and evidence against him, that you ensure the prosecution meets it’s burden to prove your client’s guilt, and that they prove that the facts meet the definition of the crime charged.
Thank you! Very helpful. And, in view of the NYT article, very reassuring. In view of your answers, I can also now point out the obvious about the case described therein, and say that what the DA did was, therefore, not just illegal but unethical from square one, i.e. knowing the defendant’s innocence from the start should have meant that no prosecution would be forthcoming (i.e., had that precept been followed, there would have then been no opportunity to commit illegal acts such as suppression of exculpatory evidence, etc.).
I also now understand better that when a defense attorney represents a ‘guilty’ client, he/she is not (necessarily) trying to get them acquitted so much as to ensure they get the best ‘deal’ (and fairest trial/outcome).
pravnik: I made a slip of the tongue (so to speak) and meant to say “defendant” and not “client” when I said, "In other words, do DA’s still prosecute to the best of their abilities even if they know their client is innocent? ", i.e. it should have read as, “In other words, do DA’s still prosecute to the best of their abilities even if they know the defendant is innocent? ?”
A prosecuting District Attorney is the “DA”. The Defense Attorney is not a “DA”, but Defense Counsel, perhaps Public Defender, PD.
It is the job of the head DA, “The District Attorney” to use prosecutorial discretion to charge and convict people she has a reasonable basis of probable cause to believe are guilty of crimes. They do not have the budget to prosecute everyone to the same degree as an axe murderer. The Deputy DAs follow the instructions of the DA.
I think we have some former DAs posting on the board.
In general, the DA’s job definition is to ensure that justice is done. Ordinarily this will be by prosecuting to the best of his ability persons he has reasonable grounds to believe guilty of the crimes alleged; on occasion, as he becomes convinced of their innocence, it may be to move for dismissal of the charges against them.
In reality, you will have the occasional DA elected on a “get tough on crime” platform who sees each and every dismissal or acquittal as harming his convictions rate, and will not seek dismissals. This is considered grandstanding and unprofessional by his colleagues, but it does in fact happen, though more rarely than tabloid news reports would suggest…
With relation to the premise given in the OP, let me point out, especially given the recent Anthony trial and other judge-'em-by-news-reports items, that nobody who is a defendant in a trial is guilty of the crimes with which he/she is charged. If they were, there would be no trial. They are proven guilty – or not – during the course of the trial, but they go into the trial ipresumed innocent until proven guilty. This is a rebuttable presumption which is the foundation of our criminal jurisprudence. And it’s more important than people give it credit for. No matter what the news reports say, Joe the Perp. is entitled to be presumed innocent until and unless the prosecution proves him guilty beyond reasonable doubt. He does not have to prove his innocence; he only has to disprove enough of the prosecution’s case to produce reasonable doubt in the jury or judge. And remember too, it’s to the prosecution’s benefit to charge him with everything from capital murder to double parking; objectively, he may be guilty only of a lesser included offense. Consider the following:
Joe shot and killed Harry:
[ul][li]because Harry was a cop attempting to arrest Joe for the murder of kindly old Granny Weatherby; or[/li][li]in cold blood, premeditatedly, for financial gain; or[/li][li]in the course of the armed robbery of Harry’s store; or[/li][li]in the heat of rage because he (Joe) caught Harry having and affair with his (Joe’s) wife; or[/li][li]because he (Joe) caught Harry molesting his (Joe’s) young daughter; or[/li][li]because Harry was on the other side of a thicket that Joe thought he had seen a deer run into; or[/li][li]because Harry was trying on his Hallowe’en bear costume in Joe’s woodlot during bear season; or[/li][li]because Joe went psychotic and believed Harry to be the mastermind coordinating the nefarious interactions between the Trilateral Commission and Al-Qaeda; or[/li][li]because Harry was coming at Joe armed and with murderous intent; or[/li][li]because Harry was about ready to throw a grenade into a group of kindergarteners; or[/li][li]Joe was a cop attempting to arrest Harry for the murder of dear old Granny Weatherby.[/ul][/li]
Joe’s motivations and culpability shift dramatically over that list (which admittedly is purposefully created to show the extremes). But I was personally acquainted with a DA in my old hometown’s county who charged every instance of trespassing into a building as burglary, boosting his felony rate and getting plea bargains galore out of it – even if the trespass was as innocuous as two teenagers going into an unused shed or warehouse for a secluded place to make out.
In any definition of a crime, not merely the nouns and verbs describing the sort of action defined but the “pusilaneous adverbs” (“maliciously, feloniously”) and usually motive and intent enter into the question of whether a given action constitutes that crime. A defense attorney may very well know his client committed act X, the noun-and-verb of the charge, but under circumstances that do not constitute the more severe of the crimes charged – and may even be justifiable in the circumstances, not a criminal act at all. It’s his job to give his client the best defense.
Don’t let anyone tell you that the DA’s job is anything other than to get convictions. They are supposed to present exculpatory evidence to the defense but rarely do, as the case in question illustrates.
So how come the DA in the DSK case did hand all his evidence over to the defense. I assume that he felt that DSK’s high-priced lawyers would dig it out anyway and he needed a relatively graceful way to avoid a losing prosecution.
Slightly off topic but a few years the Attorney General of Florida fought vigorously against a retrial for some poor guy who was convicted of rape/murder and slated to be executed and for which the DNA evidence demonstrated convincingly that he was not responsible for the rape (and presumptively not for the murder either). He argued that it was his job to carry out the execution even if he had absolute proof of innocence. And his name wasn’t Eichmann.
Note that some legal experts have opined that the defense is not entitled to all evidence that might prove his innocence. Supreme Court Justice Scalia has stated this opinion:
So while they may have an ethical obligation to provide all potentially exculpatory evidence, it is not clear that they have a Constitutionally-mandated obligation to do so.
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You’ve been a member of the SDMB for nine years, CaptMurdock. That’s long enough to know that political jabs like this are not allowed in GQ. Do not do it again.
[/mod note]
I’m a former assistant DA (assistant county prosecuting attorney, in the Ohio parlance). As noted above, a prosecutor’s ethical duty is to see that justice is done, not to get notches in his or her conviction belt. I was just as happy dismissing a case, when I was convinced that someone was innocent, as I was in doing my best to get a conviction when the evidence was there to support it. Some overzealous or sneaky prosecutors forget that, if they cut corners, suppress evidence, bully witnesses, suborn perjury etc. just to get a conviction of what turns out to be the wrong guy, the real criminal is still at large. No one should want that.
The Berger decision, cited by pravnik, is a good and oft-cited summary of the prosecutor’s duty.
This post confuses the issue, and it confuses readers as well.
In Youngblood, a rape kit was done and the results preserved, but the victim’s clothing was not stored in a refrigerated environment as well. Later testing of the assailant’s semen on the clothing was not possible because the samples had deteriorated. This crime was committed in 1983; obviously we’ve come quite far since then in what we can test even after non-refrigerated storage. In 1983, the only possible test with semen was to discover the blood type of the attacker (if the attacker was a “secretor;” which roughly 85 percent of the population is). In the remaining 15%, who are missing the secretor allele, semen cannot be used to find the blood type of the man who produced it.
The police did not preserve the clothes. At trial, the defense argued that IF the police had preserved the clothes, the evidence might have exonerated the accused.
The Supreme Court said that this wasn’t enough to overturn the conviction. The opinion said that if the police withheld evidence they knew to be exculpatory – that is, evidence that would show the accused was not guilty – that was a violation. They said that if the police acted in bad faith by destroying evidence they suspected would show innocence, that was a violation. But when the police simply don’t have any reason to believe a particular test would show anything either way, and don’t run that test or don’t preserve items that they don’t believe have any value, that’s not a violation.
What makes this decision in retrospecta bit harder to swallow was that when DNA testing came along, and the technology existed to DNA test even very small samples, the police (who had kept the evidence all this time) were able to produce it for testing… and the testing exonerated the accused, despite an eyewitness identification from the victim, who was ten at the time of the assault.
He was released, and the DNA sample was matched to another inmate who confessed and was sentenced to 24 years.
But the conclusion should not be that the Court made a blunder. They were deciding whether any person, after conviction, could overturn that conviction because the police did not preserve evidence that he thought might possibly show his innocence. In this case, even if the evidence had been properly preserved, it would not have helped Youngblood – the guilty man, one Walter Cruise, had the same blood type as Youngblood. Even if the clothing had been preserved, it would not have exonerated Youngblood in 1983 (although Youngblood was a scretor). And the evidence was preserved enough to exonerate him when technology caught up in 2000.
I don’t disagree with your evaluation of Youngblood. It found that convictions shouldn’t be thrown out just because some potentially exculpatory evidence wasn’t provided to the defense unless the cops were shown to have acted in bad faith.
My comment re: Scalia was that he used Youngblood as his cite in the Thompson defense, in which SCOTUS overturned an award to a wrongly-convicted man (who came within weeks of being executed for a crime he didn’t commit). In the Thompson case the prosecutors did in fact know of evidence that was exculpatory and didn’t reveal it - Scalia seems to state that the Youngblood ruling shows that they are not required to do so.
Do you have an opinion on Connick v. Thompson? Perhaps this is outside the scope of this thread, but it does touch on prosecutorial responsibility (or, at least, liability).
