A Note To Laura McWilliams: Prosecute, If You Must. But Be Wise

In a better world we could all be prosecutors, at least some of the time. I know I wish I had the experience of prosecuting a person accused of a crime. I was reminded of this by reading the post of a law student, Laura McWilliams, who has decided that she wants to land on the state's side of the aisle.

I've frankly never fully understood this business of taking sides for life in the courtroom. Trial is drama. It is the confrontation of the state versus an individual accused of breaking the law. Often those accusations are wrong; sometimes the accusation is right. What to do about the transaction is the law's business.

In England, barristers, or Queen's Counsel, are called upon to both prosecute and to defend, although obviously not in the same case. That seems a far more sensible system. The prosecution does not develop the sort of pack-like mentality that comes of close association in pursuit of common goals, year after year.  Rotation of trial counsel also keeps law enforcement accountable; it could break the paramilitary pall that comes of ranks closed forever against the world. I am not a close student of the English criminal courts, but I wonder whether police lying and the code of silence is as prevalent there as it is here.

Clarence Darrow got it right a century ago when he said "there is no justice, in or out of court," so I do not believe the administration of justice would be improved by a rotation system. I do think that the purposes of prosecution would be better served, however.

We are taught in law school that the criminal justice system serves four ends: general deterrence, specific deterrence, rehabilitation and retribution. It is apparent that we are failing to meet those goals. The United States imprisons a larger percentage of its population than any other industrial nation, and for periods far longer than our counterparts. The criminal justice system fails to meet the goals of deterrence and rehabilitation. It merely punishes, often to no end.

Would the system improve and be less wasteful if we abandoned professional prosecution?

One benefit would be that the state, our grandest of legal fictions, would no longer be represented in the prosecution of criminal offenses by a caste apart. Prosecutors are simply unaccountable. Legislators pass laws, often requiring mandatory prison sentences. Much though they rail about a defendant's need to take responsibility for the consequences of their actions, the criminal justice system avoids making prosecutors accountable for what they do. "I am just following the law," they sometimes say, as they hone in to destroy a person for an offense, consider the Romeo and Juliet sex offenses, that they may well have committed themselves.

Prosecutors aren't alone in avoiding responsibility for what they do in the name of justice. In a perverse sort of way, the separation of powers doctrine invites participants in the criminal justice system to wear moral blinders. Lawmakers pass laws defining offenses and mandating punishment. Yet these lawmakers are not required to set foot in a courtroom; their decisions are often driven by the most garish headline of the day. Prosecutors then seek convictions for violations of these laws, regardless of whether the law, and the consequences of violating it, make sense. And judges, at least in Connecticut, then step in and tell jurors simply to find facts. Is the defendant guilty or not of the offense charged? Jurors are told to ignore the punishment to be imposed. That is the judge's job. Except the judge's hands are tied by the legislature. Neither judge, not lawmaker, nor prosecutor ever does what defense counsel does: look the defendant in the eye and consider the consequences of a conviction.

If we permitted lawyers to rotate, to serve sometimes as defense counsel, sometimes as prosecutor, we might get a criminal justice system that was more effective in dealing with deviance. Perhaps lawyers would avoid the irresponsibility now inherent in the system, a state of affairs in which judge and prosecutor both are encouraged to avoid responsibility for the consequences of their job by simply saying that the legislature, men and women who never step foot in a court,  made me do it.

Laura McWilliams says she is drawn to the prosecution side of the aisle. Frankly, I am glad someone is. Although I am a criminal defense lawyer and I relish the role of outlaw, I am not so far outside the law that I am willing to forgo the protection of the state as regards murder, rape, robbery and other offenses that undermine my peace of mind. I, too, seek the state's protection against all the things that go bump in the night.

We need prosecutors. But we need prosecutors who are something other than caricatures. Forcing lawyers to play forever on the same side of the courtroom does not make for better outcome: It guarantees group think and inefficiency. Prosecute if you must, Laura. But never forget that it is a person you are prosecuting; you will represent the state for a lifetime, and, truth be told, never meet your client.

Comments: (4)

  • Hi Norm,
    I did both jobs simultaneously for abou...
    Hi Norm,
    I did both jobs simultaneously for about five years (2003-2008). As a civilian, I worked as a state prosecutor and on weekends served in the Army Reserve as a TDS lawyer. TDS is the Army equivalent of the Public Defender for military justice issues.
    My time is TDS sensitized me to difficulties faced by defense lawyers. I spent fewer than three years in private practice prior to becoming a prosecutor and all of that was at a large law firm. I had virtually no experience having someone's future in my hands. It was a humbling experience.
    I was recently asked about the case I handled that most bothered me and it was a case that I lost as a TDS lawyer. It was a case I should have won, but didn't. As a result, my client's life was destroyed. Speaking for me personally, working on the defense side made me a better lawyer, and, I think, a better prosecutor.
    On the larger issue, I think on the whole we have an good, professional group of prosecutors in Connecticut. However, our appointment processes and evaluation procedures for these positions fail to acknowledge the authority given to line prosecutors. As you are well aware, the discretion exercised by state prosecutors in Connecticut is enormous. Despite this, there is virtually no attention given to their appointment and upon completion of a one year probationary period we line prosecutors essentially hold our jobs for life.
    We should be taking far greater care in the appointment, evaluation and education of state prosecutors. For instance, we currently lack any means of systematically receiving input on evaluations from outside the Division of Criminal Justice. The DCJ has no training officer and there is essentially no state funding whatsoever for training opportunities. Finally, we should establish higher minimal qualifications for appointment.
    If we fail to acknowledge the importance of these jobs, we will continue to have difficulty attracting good lawyers to fill them.
    Posted on July 2, 2010 at 4:24 am by Brian Preleski
  • I'm learning that the system is more imperfect tha...
    I'm learning that the system is more imperfect than I ever thought. It's horrible; it's tragic. But it's what we have.
    A prosecutor left this comment on my blog:
    "The CDLs are absolutely right, as a prosecutor you do not represent the victims. But they are not right when they say that the job isn’t about human beings. To the contrary, you represent the People – the ordinary citizens who in the course of our democracy have enacted laws regulating everyone’s conduct for the better of all. Without prosecutors, the very underpinnings of our democracy fail – the social contract is broken. To say that as a prosecutor you do not represent people is wrong. I think about the People every time I enter the courtroom – the very people who are expecting me to do my job."
    I guess that social contract is important to me. So are those who've been harmed by those who've chosen to break laws. Mark Bennett suggests it's a choice between being free or being safe. I think that's a simplification, but there it is. The catch is that the ideal criminal justice system balances the freedom of those who break the law with the safety of those who choose not to. That, too is a simplification, but there it is. As you say, we all "seek the state's protection against all the things that go bump in the night."
    Our system is not ideal and neither are those who work inside it. But we are who we are and we must do the best job we can with what we have.
    Thank you, Mr. Pattis, for being an admirable and respectful teacher for those of us willing to pull up our chairs.
    Posted on July 2, 2010 at 7:52 am by lauramcwilliams
  • "To the contrary, you represent the People – the o...
    "To the contrary, you represent the People – the ordinary citizens who in the course of our democracy have enacted laws regulating everyone’s conduct for the better of all."
    Trite words, trite thoughts. Somebody is channeling our fearless leader, Barack Obama. I guess you didn't read Hemingway in college or take 'creative writing'. Of course, you're a prosecutor!
    "Without prosecutors, the very underpinnings of our democracy fail – the social contract is broken."
    Says who? Prove it. Where's the evidence? Where are the studies? Now I am to assume L. McWilliams has read John Locke and the philosophers of the Enlightenment! Now comes the latest from the once and powerful State of Russia, yesterday: http://www.nytimes.com/2010/07/04/world/europe/04detain.html?th&emc=th
    Every Amerikan prosecutor should read this story and reflect on its relevance to our own investigative/judicial practices, which we are mercilessly, repeatedly told are the best in the civilized world.
    "To say that as a prosecutor you do not represent people is wrong. I think about the People every time I enter the courtroom."
    I'm sure you do. The question is do you represent the people appropriately, responsibly and honestly? Your thoughts and the thoughts of your supervisors are actually irrelevant. The 'will of the people' is what's relevant.
    Am more impressed with Brian Preleski's revelations. Actually, it's pretty remarkable that both of you come onto this forum and use your real names. I imagine both of you will be hearing from your supervisors and enjoined from engaging in this risky practice in the future. For Brian, I recommend 'Training is Scarce for State Prosecutors', The New York Times, 2002. I'm not saying that Brian and Laura are poorly trained, but unless things have changed since I saw the inside of a CT courtroom, I imagine they both know plenty of 'poorly trained' CT prosecutors.
    Brian gives every indication of understanding how many thousands of lives in CT have been unduly altered, in some cases 'destroyed', by errant, incompetent prosecutors.
    "Our system is not ideal and neither are those who work inside it. But we are who we are and we must do the best job we can with what we have."
    Encouraging words indeed! Whenever I hear them, I am reminded of the physicians Hippocratic Oath: Do no harm. Is there an equivalent oath for prosecutors and state's attorney? (I don't think so.)
    Posted on July 5, 2010 at 1:02 am by William Doriss
  • The N.Y. Times story referred to above is "Russian...
    The N.Y. Times story referred to above is "Russian Mayor Irks Security Agency, and Suffers," July 4,... appropriately enough. The full address is, in two parts: http://www.nytimes.com/2010/07/04/ world/europe/04detain.html?th&emc=th
    Now, eliminate the space and run them together. This blogsite does not accommodate long addresses.
    Everyone here should read this story and contemplate. Valuable lessons to be learned. Are we really any better than this?!? No, just different. We prosecute illusory sex crimes mercilessly, and other non-violent and/or victimless crimes. Meanwhile, we are incapable of preventing or solving real crimes.
    Posted on July 5, 2010 at 2:55 am by William Doriss

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