IN THE DEFENSE OF PROSECUTORS

CONTINUING the ongoing debate and discussion about our criminal justice
system, today we consider a defense of prosecutors.

Several of them responded to the recent visit here with a lawyer who
resigned as an assistant DA to become a defense attorney. They disagreed
with the contention that most prosecutors believe justice to be synonymous
with winning convictions.

While many messages made similar points, I liked David Newell's best.
Newell works for a prosecutor's office in the Houston area, but asked me
not to say which one because he is expressing his personal opinion and not
speaking for his entire office.

That lawyer who changed sides said the decision came after a fellow
prosecutor quipped that convicting guilty people is easy; the real
challenge is in convicting someone who is innocent. Newell said he heard
that same joke in a movie, but it inspired him to do everything possible to
disprove that image of prosecutors.

More than convictions

"There is so much more to being a prosecutor than simply going to trial or
getting a conviction," he wrote. "What you do not read about in the papers
are the numerous times that prosecutors have to dismiss cases where people
have been physically abused, but there is not enough evidence to link a
particular defendant to the crime."

Newell said radio news doesn't broadcast "all the times that prosecutors
have to explain to the victims of burglary that 'just because someone said
he entered your house does not mean we can actually prove in court that he
did.' "

And TV cameras don't record when "prosecutors have to beg victims of sexual
assault to testify against their attackers" because people do not want to
testify about anything because of the "humiliating cross-examination
designed to obscure rather than uncover the truth."

"But that's not to say that prosecutors completely ignore the rights of
defendants either," Newell said, telling of a fellow prosecutor who
recently opted for deferred adjudication in a shoplifting case so that the
teen-age defendant would not have a conviction following her to college.

"Every time we are in court," Newell said, "we cut sentences on pleas if
defendants show us that they have jobs; we amend probation numerous times
so that they can have more than one chance to complete it; we dismiss cases
upon the payment of restitution; we rarely, RARELY see more than half of
the maximum fine or jail time."

Regarding the drug war, Newell said people in the area's poorer
neighborhoods "often call upon the DA's office to vigorously prosecute
substance-abuse crimes, even as affluent bystanders speaking from a
position of luxurious indignation offer vicious criticism for such
enforcement. I don't know which side of the argument is the correct or
morally just one. What I do know is that the prosecutor and the police
officer get caught in the cross fire of this debate every day."

Foes of rich defendants

He agreed that money does make a difference in the courtroom arena, but
said, "you will not find a more zealous opponent of this fact than the
prosecutor. Prosecutors hate wealthy defendants and are always ready to go
to court to fight them. . . . More prosecutors rise to these occasions than
bow to intimidation because these defendants are the ones who figure that
with all their money they can 'beat the system.' "

Prosecutors get battered in the media, Newell said, because "America loves
the underdog" and it is "easy to romanticize the lone defense attorney
always struggling to save one person at a time."

But while it is "up to the defense attorney to use any means necessary to
secure an acquittal," he said, "the prosecutor represents the state of
Texas and is required not to seek a conviction, but to see that justice is
done (that's actually a statutory provision)."

Prosecutors are obligated to turn over evidence that could help the
defendant, he said. A prosecutor has limited rights to appeal, while the
defense attorney can appeal at state and federal levels. "Most
importantly," he said, prosecutors are held to a higher burden of proof.

Newell said there are "many good people who become prosecutors because they
want to do the right thing, because they believe that the best way to
ensure that 'the system' is fair is to work within it rather than tear it
down, and because they still believe in justice for all."