LIKE IT OR NOT: NOT ALL CASES ARE CREATED EQUALLY

The July 23 column by Washington Post writer Neal Peirce headlined "Law
And Order Dilemma: Who Checks The Prosecutors?" caught my attention.
I'm surprised that a journalist would raise such issues without also
mentioning any of the factors that govern prosecutors.

Instead, Peirce has put forth a one-sided story based entirely on the
work of a law professor who apparently is a member of and advocate for
the criminal defense bar in the District of Columbia area.

While it may be naive to think that aspirational standards as recited
by Peirce can protect society from abuses, it would be more honest to
look at how many checks and balances exist within the criminal justice
system that serve to do so.

First, prosecutors practice side by side with a vigorous defense bar
that works to make sure that adequate proof and proper procedure exist
and have been followed at every step of a criminal case.

Prosecutors actually welcome that - not only does this serve as an
insurance policy of sorts in our quest for justice, but also it makes
us better at what we do because virtually nothing we do goes
unchallenged.

Second, the procedural and evidentiary rules we follow provide court
review of both the sufficiency of the evidence and the propriety of
our actions at every step.

A mistake, much less an intentional abuse, can result in a judge
taking action up to and including dismissal of a case and referral for
disciplinary action.

Third, juries, not prosecutors, hold the ultimate say in determining
guilt or innocence. Juries can and do act as their collective sense of
justice dictates, sometimes regardless of the evidence or the argument
of the prosecution.

Next, judges impose sentences, not prosecutors. Finally, even after
that a sometimes endless series of appeals follows, almost always
filed by the defense. Like everything before it, the appeal process
serves to check the prosecution. The idea that prosecutors are
unwatched and unchecked is simply false.

The remaining point raised by Peirce is a concern that prosecutorial
decision making is haphazard or arbitrary. This is, he suggests,
because different results occur in similar cases.

In reality, so many factors are involved, and such an effort is made
to treat each case individually based on its merits and circumstances,
that to expect justice to be identical in each case is both unworkable
and undesirable.

Whether we like it or not, all cases are not created equal - in some
the evidence is overwhelming while in others it is suspect. In some,
witnesses are credible and co-operative. In many they are not.

As important, not all defendants are equal. Some have terrible
records; others are first offenders. Some have mitigation in terms of
mental health issues or substance abuse problems. Others do not have
any semblance of justification for their acts.

It is true that sometimes a defendant may have the means to provide
for something like expensive drug treatment that most people could not
afford and that the courts often have inadequate resources to provide.
Should a prosecutor refuse to recognize and take advantage of that? I
think not. To suggest that criminal justice can be administered in a
cookie-cutter, one-size-fits-all manner ignores the realities of human
nature with which we deal.

To be sure, racial or class bias should have no role in the decisions
prosecutors make. Neither should a prosecutor ever lose sight of the
impact he or she has on all involved in a criminal case.

One of the strongest principles that I seek to instill in new
prosecutors when they join my office is that they must respect the
power they have and use it appropriately.

The public is entitled to know that the men and women who represent
them in the criminal courts of our state and nation strive above all
else to do justice. There is no perfect justice system, but in
promulgating his criticisms Peirce would do well to at least
acknowledge the other side of the story.

For example, he might have noted that the fact that few complaints
against prosecutors ever result in actual discipline of any sort is
likely because few of those complaints have merit. Most are simply the
sour grapes of those under prosecution or already imprisoned for their
own misdeeds.

As a career prosecutor I've learned to expect that people who
criticize us often have an agenda of their own, and that seems to be
what's at work in Peirce's commentary.