The Role of the Prosecutor
My story is typical of most American prosecutors. I am the elected prosecutor of Cape Girardeau County, Missouri, located in Southeast Missouri upon the hilltops overlooking the Mississippi River equidistant between St. Louis and Memphis. Once referred to as "The Athens of the Midwest" by Mark Twain in Life on the Mississippi, the Cape Girardeau I know is a somewhat more mundane mid-western community than Twain’s compliment suggests. The County’s population is 60,000. Most of those souls (35,000) live in its biggest city, also called Cape Girardeau. The community is the home of a University, a Proctor & Gamble plant, a Wal-Mart Super Center, a Mall, a downtown district, and numerous small businesses and industries. My office prosecutes about 2,000 criminal cases per year, from driving while intoxicated cases to multiple murders.
After several years as a prosecutor, one’s community becomes not just one’s hometown, but a collection of crime scenes. A beautiful four-story red brick house in the 600 block of Broadway is not simply the location of a bookstore and cafe (its current incarnation) but also the crime scene where the naked body of a lovely murder victim lay sprawled at the foot of the tall wooden staircase; the historic Lorimier Cemetery is not just the pastoral resting place of Cape Girardeau’s founder Louis Lorimier, but also the crime scene where two teenagers acting upon a plan concocted by a modern-day Fagin robbed and shot a mentally-handicapped groundskeeper for the roll of cash he was known to carry in his pocket; a well-kept house on Centennial Street is not just a typical split-level house in a typical small-town subdivision but also the crime scene where the dead body of a multiple-stabbing victim lay in copious pools of his own blood with a peculiar piece of jewelry adorning his otherwise nude body; Twin Trees Park is not only a lovely, peaceful and secluded public park, but also the crime scene where two small-time teenage drug-dealers from Illinois were shot and stabbed by a couple of our more vicious locals who chose to pay for their drugs with violence rather than money; the Abe Stuber Track & Field Complex is not just the clean and modern track facility at Southeast Missouri State University where I run laps during many summer daybreaks, but is also the crime scene where fraternity pledge Michael Davis received a fatal beating during a hazing ritual; and a tidy red brick house on North Henderson is not just an attractive three-bedroom home within walking distance of the University, but also the crime scene where the victims of a triple murder departed this world one horribly violent November night.
The list goes on and on.
The job of the prosecutor is not for the squeamish. No matter how attractive the community, the prosecutor sees its underbelly. He sees the murderers, the rapists, the robbers, the drug-dealers, the burglars, the wife-beaters and the child molesters. As a retiring judge once said, "In my courtroom, day after day, I have seen the dregs of the community – and some of their clients, too!"
Just kidding, esteemed lawyers of the defense bar!
Robert H. Jackson, later a U.S. Supreme Court Justice and the lead prosecutor of the Nazi war criminals at the Nuremberg trials, said in 1940 as U.S. Attorney General in a speech to federal prosecutors: "The prosecutor has more control over life, liberty, and reputation than any other person in America." While this may be something of an overstatement, prosecutors need always remember that even the filing of a charge can do serious damage to a person’s life. The prosecutor must make sure that he prosecutes only the guilty and that he does so fairly.
No one, especially a prosecutor, wants an innocent person to go to jail or suffer injustice.
The role of the prosecutor to do justice is emphasized in the ethical canons for prosecutors. These ethical canons differ significantly from those for defense lawyers.
A defense lawyer is required to represent his client "zealously within the bounds of the law." While he is not allowed to knowingly present perjured testimony, he does not need to disclose damning information he knows about his client to the prosecutor, the judge or the jury. He may argue innocence, even when he knows his client is guilty. The defense attorney’s role is to be a hired gun for his client, to get him off if he can, or to get him as little punishment as possible if he can’t get him off entirely.
The prosecutor, on the other hand, is obligated to seek justice. The National Prosecution Standards published by the National District Attorneys Association state quite clearly: "The primary responsibility of prosecution is to see that justice is accomplished." The American Bar Association Standards for Prosecutors put it even more succinctly: "The duty of the prosecutor is to seek justice, not merely to convict."
All prosecutors at my office know that if we develop a reasonable doubt about a person’s guilt, our duty is to dismiss the case rather than go forward with the prosecution. As Justice Jackson said in his 1940 speech: "[A] spirit of fair play and decency . . . should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done."
On the wall of my office I have hung a framed quotation from George Sutherland, another U.S. Supreme Court Justice. He described the role of the prosecutor in these words: "The [Prosecuting] Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."
Justice Sutherland’s reminder that the prosecutor should strike hard blows but fair ones captures the essence of the role of the prosecutor. The prosecutor should strike hard blows by being an excellent trial lawyer who will never lose a case because of incompetence or lack of preparation. Yet, he will always strike fair blows by making sure he has provided the defense with all of the facts in the case, both those that support the guilt of the defendant and those that might tend to suggest innocence, and by refusing to resort to cheap tricks or unfair tactics to win a case.
The prosecutor must also remember at all times that society itself is his client. The victim, the police officer or any other specific individual is not his client. His client is the entire community, and his primary role is to protect that community and to do justice in every single case. The interests of society and the interests of a particular victim or cop, while often the same, are not always identical.
Even the decision whether to file a particular charge can be surprisingly tricky. Reading criminal statutes and applying them to specific fact situations is not simply a matter of connecting the dots. The use of his discretion in determining which charges should be filed and at what level is one of the prosecutor’s most important functions. Obviously, as the National Prosecution Standards instruct, "The prosecutor should file only those charges which he reasonably believes can be substantiated by admissible evidence at trial." Yet, the standards point out other factors as well:
"The prosecutor should exercise his discretion to file only those charges which he considers to be consistent with the interests of justice. Factors which may be considered in this decision include:
a. The probability of conviction;
b. The nature of the offense;
c. The characteristics of the offender;
d. Possible deterrent value of prosecution to the offender and society in general;
e. Likelihood of prosecution by another criminal justice authority;
f. The willingness of the offender to cooperate with law enforcement;
g. Aid to other criminal justice goals through non-prosecution;
h. The interests of the victim;
i. Possible improper motives of a victim or witness;
j. The availability of adequate civil remedies;
k. The age of the offense;
l. Undue hardship caused to the accused;
m. A history of non-enforcement of a statute;
n. Excessive cost of prosecution in relation to the seriousness of the offense;
o. Recommendations of the involved law enforcement agency;
p. The expressed desire of an offender to release potential civil claims against victims, witnesses, law enforcement agencies and their personnel, and the prosecutor and his personnel, where such desire is expressed after the opportunity to obtain advice from counsel and is knowing and voluntary; and
q. Any mitigating circumstances."
In most states the Prosecuting Attorney (sometimes called District Attorney, State’s Attorney or Commonwealth Attorney) is an elected position. This an American development with roots directly related to the birth of our country. In England, the prosecutors were appointed by the King. If he did not like the decisions they were making as to who got charged with crimes and what punishments they were receiving, he simply replaced the prosecutors. Our Founding Fathers chose instead a system by which each community (in Missouri it is done by county) elects its own prosecutor. He is accountable to no politician or king. Rather, he is accountable to the people. If he is incompetent or possesses poor judgment, the public will eventually notice and remove him via the voting booth.
The prosecutor should also assist in the training of local law enforcement officers. As the National Prosecution Standards state: "The prosecutor should encourage, cooperate with, and, where possible, assist in law enforcement training." Especially in the area of search and seizure law, which is constantly evolving, the prosecutor should make every effort to make sure the officers in his jurisdiction know how to collect evidence without violating someone’s constitutional rights.
I enjoy being the Prosecuting Attorney for Cape Girardeau County. I have the most rewarding and challenging and interesting job in the County. The prosecutor, more than any one person, can make the biggest difference in ensuring aggressive, honest and fair enforcement of the criminal laws in his jurisdiction. I am grateful for the opportunity I have been given to have a positive impact upon the community. I never for a moment forget the importance of the job, and of doing it well.