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What it's like to prosecute somebody who is later shown to be innocent

February 11, 2015, 8:13 pm | This story has an Influence Score of 1223

By @mariocantin

Written by Mike Prozan -- originally posted on Quora.com

This question begs for an answer by someone who has, well, actually prosecuted a case where a Defendant has later been shown to be innocent.  I'll let you be the prosecutor and make the call before I tell you what I did.   

The answer is long but I have that experience and will provide it in detail with regard to a specific case.  

If you are interested in gaining some real insight into what it is like to be a prosecutor, this answer is (hopefully) for you.   

First, understand, that without question, in the United States, prosecutors have a higher duty than just winning a case.  Prosecutors have an obligation to do justice.  This is enshrined by the Supreme Court.  Defense attorneys have the sole duty to their client.  Like any other profession, prosecutors have their share of the bad, the stupid, those who exercise bad judgment on occasion, and those who do not want to admit mistakes.  The system is built and run by humans.  Defense attorneys are the check on that. 

Sorry to disappoint you.  This is not a tale of someone wrongfully convicted spending decades of their life in prison after newly discovered evidence exonerated the Defendant.  This is not a tale which will make the news.  This is not a tale where, IMHO, I should be racked with guilt for not having done my job.  Quite the opposite, I feel I did my job well and would do it again if I could go back in time under those circumstances.  My guess is this is the kind of tale which is the reality of where this occurs in the day-to-day life of a prosecutor. 

And, by the way, I equally applaud the work of defense attorneys and groups like the Innocence Project.  

The setting:  an arcade in inner city Washington DC in 1992 or 3 where kids from the local high school hung out. 

I have no idea what it is like now, but at that time, DC was overrun with crack, gangs and gun violence.  The murder rate was out of control.  I think it was nicknamed Death City.  (In one case, I think I turned this around and plead to the jury that this nickname forgot about them, the Decent Citizens).  Not long after, the Mayor was arrested for doing crack. 

Guns at the time were all but banned.  No public carrying of weapons.  Period.  My recollection was that you could not even buy one and take it to your house.  Because carrying the weapon to your house in the city streets was illegal.  The only legal guns in DC were those in a residence before the ban on public carrying went into place.  How strictly was this enforced?  The story we were told was of the wife of a Congressman who learned of the DC gun laws.  She went to a police station to tender her weapon.  She was charged with violating the law because she carried the gun in public to the police station.  True?  I don't know.  All I can say is it is a story we were told.   

I know.  I know.  Yes, it was in the truest sense a situation where because guns were outlawed, only outlaws had guns.  I am just telling you my recollection of the law and the situation at the time.  I think there may have been a Supreme Court case which later addressed some of the situation. 

The case.  There was this 22-year-old lunkhead.  He may actually have still been a student in the HS at the time.  If not, he definitely left the school well past the age where most students do.  He hung around with the kids like he was a teenager.  Generally, he was a trouble maker in or around the school and well known to the policeman stationed at the school. 

My recollection of the officer is that he was just a regular cop like most.  No, he wouldn't be a top writer on Quora about police topics like those we are lucky to have.  My assessment was that he was not the kind of substandard cop whose actions would have created a bad situation like some of the cases in the headlines today.  As you'll see, just the opposite. 

And for those of you who see race in everything, lets address that so you do not need to speculate.  I think DC was 60-70% black at the time.  Judge: Black.  Cop: Black.  Lunkhead: Black.  Other kids: probably Black  (I think one or two may have come out as prospective witnesses).  Jury: for some reason, I recall them being a majority Black which would have been common.  Defense attorney: White.  Prosecutor: White.   Cop receives a report that Lunkhead has a gun and is hanging out in a local pinball/video arcade near the school.   Cop responds to an arcade crowded with teenagers.  He sees Lunkhead and asks him to turn around or makes some other relatively benign request.   Lunkhead complies.  When he does, one of these falls from his waistband:

 which is very easily confused with what is below because it is made that way. 

We'll call that Exhibit A.

If you don't know what I am talking about yet, do not worry.  Neither did I until I got the case morning of trial.  And, there are versions of the lower which look a lot closer to the upper one.  I have a picture on my desk today (which I must have shown to the jury at trial) in which they are virtually indistinguishable  (the actual model was a different model than the one below).

We'll call that Exhibit B.

Upon seeing the instrument, the cop appropriately withdraws his weapon in a crowded, dark, arcade filled with teenagers causing ruckus and lot of fear but ultimately getting the situation under control without injury.

I know.  It doesn't sound familiar, does it?  Because this kind of stuff does not make the news.

It turns out that Exhibit A is actually one of those air pistols made to look like a real 357 magnum.  And Exhibit A here looks exactly like the one on my desk, except you cannot see the writing on the one on my desk.  The Exhibit B on my desk (the picture of the real one) looks exactly like Exhibit A here, less the little plastic thing at the bottom of the handle which is where the C02 cartridge gets inserted.

By the time the air pistol is tested it is inoperable.  Whether it was operable at the time we'll never know.

He was charged with carrying a deadly or dangerous weapon, the air pistol.  It is a misdemeanor.

I get the case file that morning (that is the way it worked in the misdemeanor unit in DC).  The witnesses are all present.  We announce ready for trial.  I get a half an hour or so to go over the report with my witnesses and prepare for trial.  A jury has been called.  My butt needs to be in court for voir dire.

If I remember right, I finished up putting on my case the next morning shortly before lunch.  Defense counsel made his motion for judgment of acquittal.  Meaning, the standard motion made by every defense counsel in every case to throw the case out because the prosecutor failed to prove the case.  Put another way, even if you take all of the evidence the prosecution put on as true, the prosecution failed to present enough evidence to convict.

These motions almost always fail.

Defense counsel argued that because the air pistol was inoperable it could not have been a deadly or dangerous weapon under the statute.

I didn't think much of it, but after we argued, the Judge believed it had legs.  It was near lunch, so the Judge gave us lunch to go and research the issue and have further argument.

So I went to the law library and research I did.  And I concluded that there was no case law on point.  That meant that if I argued the motion, won, and secured a conviction which got overturned on appeal, I would have prosecuted a person later shown to be proven innocent.  This is so because if the inoperable air pistol is not a deadly or dangerous weapon as a matter of law, Lunkhead did not commit any crime and was therefore innocent.

You be the prosecutor.  What would you do?

Let me explain how misguided some of the answers are.

Under the Vinay Kumar (no information) and Jay Bazzinotti (No one is perfect... but I am as close as you can get without a prescription . . .) model (in collapsed answer), you're quite comfortable proceeding because hey, you don't really care whether Lunkhead committed a crime or not.  So you proceed since you don't really care because you know that hey a large percentage of convictions are bogus and the Judge is really in cahoots with you anyway.

Under the model of Gary Grinkevich (graphic designer extraordinaire) (in collapsed answer), all you care about is winning.  I am not sure where he comes out on this.

On the one hand, you proceed because winning is all that matters to you. 

On the other hand, if you want to get the best conviction rate possible, you agree to dismiss because if you lose the motion, it is a loss. If you dismiss, it is neither and you save your powder for stronger cases to up your stats.

And, if you are Nida Butt (comment below), you think it is delusional and cowardly to proceed.

Let's also distinguish this case from the ones that make the news.  Those cases make the news because they are the exception, not the rule.  Besides the fact that it is piddly, it's not going to involve any unsavory tactics.  There was no undue pressure here by detectives on any witnesses.   The kids reported the gun for a reason: because they were uncomfortable being around Lunkhead with what appeared to be a gun.  There is no undue pressure to get a confession or a plea.  Lunkhead does not dispute what happened. He only challenges whether it is a crime as a matter of law.

So here is the calculus that really goes through your mind.

Of course you want to win.  Of course you want the highest conviction rate possible.  But why not then dismiss since it is risky and doesn't count?  Truthfully, two things.  I know my stats as a trial attorney.  But I never once for a moment thought about dismissing this case.  I probably didn't have the authority and could have used the time to plead my case to my boss over lunch.  But for the very reasons I never gave dismissing the case a thought, it would have been sheer idiocy to ask for that.

So, why proceed?

1.  The kids deserve a safer environment free of real or dangerous imitation guns.  It would have been abandoning them and their parents.  Black lives matter does not just apply to the accused.

2.  Lunkhead was going to get someone hurt with that thing.  Possibly killed.  Possibly by a cop.  Under circumstances which would have been with good reason. See below.

3.  Dismissal would have emboldened Lunkhead.

4.  Dismissal would have hung the cop out to dry, making his job infinitely harder.  Around the school it would have gotten out that he was abandoned at trial by the prosecutor.  Who would take him seriously again?

Put another way, it was my duty to proceed whether or not conviction might subsequently be overturned (meaning that I convicted an innocent person in this case, since it meant that what he was doing was never a crime).

And not withstanding the few bad apples which exist everywhere, the calculus is similar in the higher stakes cases.  Murder.  Rape.  Witnesses later recant.  DNA was not available 30 years ago.  New evidence surfaces after trial.

So, thank you if you've made it this far.  I'll hurry up at this point and get to the end.

After lunch, I made an impassioned plea.  It was a deadly or dangerous weapon because someone could be pistol whipped with it, because pointing it as someone was an assault, or because it could easily touch off a chain of events which could get someone killed.

To me it was obvious.  But I remember the Judge being skeptical.  He was hesitant but he let the case go forward.  I got the conviction.  It got overturned on appeal.  So, how do I feel? I feel like I did my job competently as any good prosecutor would do at the time.  The only issue in the case was an open question of law.  It would have been irresponsible of me to do anything other than my best to secure a conviction based on the circumstances at the time.

After the fact, I did a stint as a prosecutor in Portland, Oregon.  One of my rotations was to handle civil commitments; that is, institutionalizing people against their will who were mentally ill and a danger to themselves or others.  A few months after completing that stint, I remember hearing a news story about someone in the area who had been civilly committed and released.  He pointed one of those air pistols at a cop and the cop killed him.  Who knows whether it was operable or not?  FYI, they often get released because they take their meds, get straight, leave, stop taking their meds, then get brought back in again.

This answer is not a substitute for professional legal advice. This answer does not create an attorney-client relationship, nor is it a solicitation to offer legal advice. If you ignore this warning and convey confidential information in a private message or comment, there is no duty to keep that information confidential or forego representation adverse to your interests. Seek the advice of a licensed attorney in the appropriate jurisdiction before taking any action that may affect your rights. If you believe you have a claim against someone, consult an attorney immediately, otherwise there is a risk that the time allotted to bring your claim may expire. Quora users who provide responses to legal questions are intended third party beneficiaries with certain rights under Quora's Terms of Service (http://www.quora.com/about/tos).


Source: www.quora.com. Link: http://www.quora.com/What-is-it-like-to-prosecute-somebody-who-is-later-shown-to-be-innocent

Republished with permission, as per Quora's Terms of Service, under the subsection titled, "Quora's Licenses to You".


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