Saturday, January 19, 2008
Another sad story about prosecutors...
The front page of the New York Times today carried the story of Daryl Atkins, whose death sentence was commuted by a Virginia trial judge. Atkins was the petitioner in a 2002 Supreme Court case in which execution of the mentally retarded was barred, but litigtion continued on whether or not he was sufficiently mentally handicapped. Prosecutors continued to press for his execution.
Then, a new issue appeared. Lesley Smith, the attorney for a co-defendant who provided testimony for the government, stepped forward and provided convincing evidence of prosecutorial misconduct. As the Times described it:
Mr. Smith had represented Mr. Atkins’s co-defendant, William Jones. In a tape-recorded debriefing session with prosecutors on Aug. 6, 1997, Mr. Jones told his version of the 1996 killing of Eric Nesbitt, whom the two men had robbed and forced to withdraw money from a bank machine. The crucial point was who had shot Mr. Nesbitt. Under Virginia law, only the triggerman was eligible for the death penalty.
“As he began to describe the positions of the individuals and the firing of the shots,” Mr. Smith said last month, referring to his client, a prosecutor “reached over and stopped the tape recorder.” According to Mr. Smith’s testimony and a memorandum he prepared soon after the debriefing, the prosecutor, Cathy E. Krinick, said, “Les, do you see we have a problem here?”
The problem was that Mr. Jones’s account did not match the physical evidence. “This isn’t going to do us any good,” Ms. Krinick said, according to Mr. Smith.
For 15 minutes, Mr. Smith said, prosecutors coaxed and coached Mr. Jones to produce testimony against Mr. Atkins that did match the evidence. They flipped over a table and pretended it was a truck. “We used a chair, or something like that, to simulate the open door,” Mr. Smith testified, “because only one of the doors on the truck would open.” When the tape was turned back on, Mr. Jones’s story bolstered the case against Mr. Atkins as the triggerman.
As a former prosecutor who really does believe in both punishment and the incapacitation of proven criminals, this story illustrates once again a fundamental problem in criminal law: Too many prosecutors are more committed to getting convictions than they are to justice. The underlying problem is the trend to see prosecutors as solely a part of law enforcement, with police as their clients, while part of their true role is to be an objective, deliberative administrative body which acts as a filter between the police and the the courts.
It may surprise some people to hear me say that prosecutors are not just a part of the law enforcement mechanism. But the system is structured for them to be something else. Prosecutors are allowed great gobs of discretion (often more than judges), in choosing what cases to take, what charges to lay, what enhancements to seek, and what to ask for in sentencing. They are given this discretion because of their role as a filter between police and courts. If prosecutors are unwilling to perform that task, perhaps it is a mistake, then, to grant them such high levels of discretion.
Comments:
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What a disappointing story. The sad thing is that I think this kind of thing is more common than what is reported. Reading about this makes me want to choke those idiots. Urgh!
Anyone read John Grisham's non-fiction book "The Innocent Man"? All about prosecutors fabricating evidence (like Osler's story here) to get death sentences.
# posted by 
: 3:01 PM
: 3:01 PM
Yes, it would seem that the temptations of all that discretion are often too much . . . and even for a level-headed prosecutor, once into a case I would imagine it becomes about competition, about winning your case, and it becomes easy to focus on winning rather than finding the truth. The whole system is set up that way.
I was on a jury once (on a minor criminal case compared to Daryl Atkins') and we convicted the guy of some kind of assault; I don't remember exactly what it was called.
But I do remember that the charge was malicious wounding, which carried potentially a lot more jail time. We didn't find the case met that standard. I had occasion to talk to the prosecutor a few weeks after the case, and he kept asking why we didn't convict the guy of malicious wounding. He not only wanted a conviction; he wanted the maximum sentence. (We sentenced the guy to three years; he could've gotten up to twenty on the greater charge).
It seemed to me at the time that, for this prosecutor, it was about winning the case to the utmost, not just putting the guy in jail for a reasonable few years.
And then . . . aren't some district attorneys elected? It seems to me that having to run for office as the county's chief prosecutor makes it inevitable they will talk about being tough on crime in a campaign . . . publicizing that presumed alliance with law enforcement.
I was on a jury once (on a minor criminal case compared to Daryl Atkins') and we convicted the guy of some kind of assault; I don't remember exactly what it was called.
But I do remember that the charge was malicious wounding, which carried potentially a lot more jail time. We didn't find the case met that standard. I had occasion to talk to the prosecutor a few weeks after the case, and he kept asking why we didn't convict the guy of malicious wounding. He not only wanted a conviction; he wanted the maximum sentence. (We sentenced the guy to three years; he could've gotten up to twenty on the greater charge).
It seemed to me at the time that, for this prosecutor, it was about winning the case to the utmost, not just putting the guy in jail for a reasonable few years.
And then . . . aren't some district attorneys elected? It seems to me that having to run for office as the county's chief prosecutor makes it inevitable they will talk about being tough on crime in a campaign . . . publicizing that presumed alliance with law enforcement.
# posted by : 7:26 PM
: 7:26 PM
As a prosecutor I do want to point out that the story is a compelling one and one that most prosecutors should take to heart.
However, a prosecutor knows certain facts about the case and shouldn't allow a defendant to lie about facts if he knows that something isn't possible. It sounds like "coaching the witness" but you'd be suprised how much all of those less desirable witnesses(whether co defendants or not) lie and embelish before you call them out on it and show them you know more. To avoid this problem one just needs to be sure of the facts before talking to any witness, but not marry any particular set of facts in case there is something you may not have considered.
The prosecutor should never have been recording a confession of the co-defendant. That should have been handled by the police agency. That way, the above mentioned problem can sometimes be taken care of by the police investigation and the "witness" already knows not to lie. Also, if there is a recording the prosecutor runs into problems with having to be tied to one particular story. No one is going to get it all 100% accurate each time, and you will be bound by what he tells you the first time, which can often lead to problems with your case.
Which is why it seems the prosecutor got scared and stopped the tape, to avoid problems with a recording that didn't match up to the evidence.
The point of all this I guess is that a prosecutor is apt to do those kinds of things when painted into a corner.
A little extra preparation on the front end while leaving yourself open to the fact that a story will ALWAYS change to something different in the courtroom will allow you the freedom to get to the truth, rather than force you to make the story fit.
However, a prosecutor knows certain facts about the case and shouldn't allow a defendant to lie about facts if he knows that something isn't possible. It sounds like "coaching the witness" but you'd be suprised how much all of those less desirable witnesses(whether co defendants or not) lie and embelish before you call them out on it and show them you know more. To avoid this problem one just needs to be sure of the facts before talking to any witness, but not marry any particular set of facts in case there is something you may not have considered.
The prosecutor should never have been recording a confession of the co-defendant. That should have been handled by the police agency. That way, the above mentioned problem can sometimes be taken care of by the police investigation and the "witness" already knows not to lie. Also, if there is a recording the prosecutor runs into problems with having to be tied to one particular story. No one is going to get it all 100% accurate each time, and you will be bound by what he tells you the first time, which can often lead to problems with your case.
Which is why it seems the prosecutor got scared and stopped the tape, to avoid problems with a recording that didn't match up to the evidence.
The point of all this I guess is that a prosecutor is apt to do those kinds of things when painted into a corner.
A little extra preparation on the front end while leaving yourself open to the fact that a story will ALWAYS change to something different in the courtroom will allow you the freedom to get to the truth, rather than force you to make the story fit.
# posted by : 3:42 PM
: 3:42 PM
Dallas DA--
I just hope that when a defendant says something different in trial than he said when first interviewed by the police, you understandingly concede to the jury that "no one is going to get it 100% accurate every time."
Because if that really is a viewpoint that leads you not to tape interviews, it seems only fair to apply the same standard to the other side.
I just hope that when a defendant says something different in trial than he said when first interviewed by the police, you understandingly concede to the jury that "no one is going to get it 100% accurate every time."
Because if that really is a viewpoint that leads you not to tape interviews, it seems only fair to apply the same standard to the other side.
# posted by : 4:34 PM
: 4:34 PM
More discussion, please, Dallas DA & Anonymous (and our esteemed host). Dallas, what is the difference between the prosecutor recording the interview and law enforcement if the prosecutor has the obligation to turn over anything law enforcment has that is potentially exculpatory? Are you suggesting that the absence of a recording somehow changes what the witness said?
I agree about not letting a witness get away with a lie - they try things all the time - but keeping a statement off the record doesn't seem like the way to go - impeachment does.
I agree about not letting a witness get away with a lie - they try things all the time - but keeping a statement off the record doesn't seem like the way to go - impeachment does.
As I sit here drafting a motion to take issue w/ a prosecutor who ex parted a judge and signed a false certificate of service, I'm reminded of a prosecutor who told me at a party, "It isn't our job to help anybody, it's our job to punish people." Stories like Atkins' make the good prosecutors that much more amazing, because they resist so much pressure and temptation to do their job well and rightly. They are appreciated.
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# posted by : 12:19 PM
: 12:19 PM << Home
