Very early in my career, my mentor DA and first boss asked a fellow prosecutor who was struggling with a case, "Do you, yourself, believe beyond a reasonable doubt that he did it?" When the prosecutor waffled on that, his response was, "If you have not convinced yourself beyond a reasonable doubt that he did it, how in the hell do you think you can convince a jury beyond a reasonable doubt that he did it?"
That became my standard on that day and has remained so. I do not see that as the same as being convinced that I can necessarily win, because that's an entirely different analysis.

What is the grand jury's role in your equation? Is their standard probable cause? Are the cases you are talking about rejected before even going to the grand jury?

I think I would be more likely to hold it to a clear and convincing standard before taking it to trial. Than it is the jury's decision if it is beyond a reasonable doubt. But as an appellate attorney I don't have to make those decisions, so I am not sure what I would do faced with a close call.

I have taken what I considered to be very questionable cases to Grand Jury - and their standard for indictment IS probable cause. I have told them the problems with the case, and whether or not I thought I could secure a conviction based on the evidence. These were cases where I was convinced that the guy was guilty, but not sure the ADMISSIBLE evidence would prove it. Sometimes they were indicted, usually they were "passed" for further investigation. I like your standard of clear and convincing, and I don't think a case shouldn't be tried because it will be a tough sell to the jury. I am more concerned with making sure I am doing justice, win, lose or draw.

And yes, I have rejected cases where there was probable cause for an arrest - usually when you find out your victim is lying, or you just looked at a case and it didn't pass a smell test. Some cases I took in only with the command that I had to try it, because no one else would - haha!

The first thing I ask myself is this: if I were on the jury, and I heard the evid. that the jury is likely to hear, would I vote to convict? If not, I will not prosecute.

If I lose confidence in a case, I will also dismiss, even if it is based on non-admissible evidence. For example, the police arrested a couple from Mexico after discovering a significant amount of drugs hidden in their car. The woman said she was catching a ride with the driver to Houston to visit her sister, but she had almost no extra clothes or luggage for such a trip. She described the driver as a minor friend or acquaintance. The man said the woman was his girlfriend, and they were making the trip to Houston together. He said he was a taxi driver in Monterey, and was hired to drive the car to Houston by the owner.

After they had been in jail a couple of mos., I called the jail and asked if the woman had become friends with any of the inmates who have since left the jail. I was told she only spoke Spanish, and she really only had one friend she could talk to, and they chatted quit a lot. This former inmate was now living 30 miles away.

I was sure that in that length of time, being so isolated, that she would have confided in this other inmate about the drugs. I asked the chief of police of town where the former inmate now lived if he would find her and see what the woman said. He did so, and promptly reported back that my defendant told this woman that the driver was more of an acquaintance, he was going to Houston, and asked if she'd like to come with him. She agreed because she wanted to see her sister in Houston. She was shocked when the police found the drugs.

I pondered this for some time. I know trained spies, and harden criminals will stick to a cover story thru thick and thin, but I found it hard to believe that this girl was like that. I was not certain of her innocence but my confidence that she was in knowing possession of the drugs was badly shaken, so I dismissed her case.

The Manhatten D.A. recently dropped his case against DSK for similar reasons. Most of the info they developed about the CW--that she was a prostitute, that she had $100K in bank accts, that she hung out with drug dealers, etc. would not have come out in trial. But those non-admissible facts, along with other info, was considered by him, apparently, in making his decision to drop the rape charge against DSK. I agree with that.

Our job is not to gain convictions, but to see that justice is done. And to do that, we need to keep our eyes wide open, and always be prepared to drop a case, if it turns out to be something less than what we thought.

Since I don't have the luxury of a grand jury, the whole thing has to happen in my braincase. Why do I want to use my limited resources, and those of my county, on a doubtful case? I have too much else on my desk to play games.

Lisa L. Peterson
Nolan County Attorney

I believe our job is to see that justice is done. I was not saying that prosecutors should waive their obligations by putting it on the jury. I just beleive the case needs to be strong enough that in your heart you feel it is right to pursue and maybe that is a beyond a reasonable doubt standard to most people. I think there are many cases that are so circumstantial that it is reasonable to believe guilt, but the evidence does not always meet the BRD standard. From the cold record, as an appellate attorney, I have seen cases that I believe are really close calls but the jury found them guilty. Would these be the cases that would not meet a prosecutor's BRD standard? I don't know.

[This message was edited by pkdyer on 07-07-11 at .]

Like Lisa, we rarely have the ability to go to a grand jury on our cases, so we're left to evaluate them on our own, even if they are but lowly misdemeanors. Over the years, I've found a few rules to be helpful in that regard:

1. You can't sell what you ain't buyin'.
2. Know your juries and their propensities.
3. Know your cops and their propensities.
4. Bear Rules 2 and 3 in mind in reviewing a case.
5. Forge your gut instinct to be trustworty, then trust it, as Terry points out.
6. Keep personal convenience out of the equation. If you do, you come much closer to serving justice when you refuse or dismiss a case. Or when you believe you ultimately will be falling on your sword.
7. Remembering rule 7, at least in misdemeanors, know that sometimes you will have to fall on your sword. In other words, there are cases that are worthy of prosecution despite the specter of jury nullification or defense-friendly jury proclivities. NOTE: This only works if you're observing rule no. 1.

[This message was edited by Scott Brumley on 07-07-11 at .]

For a guy from West Texas he is pretty smart.

What he said: only a bit more colorful.
If you have never had a not guilty, you are hunting cows. Give up the blind to a real hunter.

A prosecutor afraid of aquittal is putting ego ahead of justice and is not seeing justice is done.

A prosecutor that doubts a conviction is just, but seeks it anyway is not seeking justice.


But the best thing Scott suggested is we should contantly evaluate our own evaluations and standards. As Spiderman's Uncle Ben said, "With great power comes great responsibility."

Kudos to the original poster and all commenters.

I am not an attorney, but I must say that many of the ones I know and have met have earned their reputation. Obviously, like all situations, the minority zealots get all the publicity. But I must say, from the bottom of my heart, that it is posts like these that reinforces my faith in mankind, even lawyers (LOL).

Dr. Monte Miller
mmiller@forensicdnaexperts.com
www.forensicdnaexperts.com

Restores your faith in lawyers?

I had a juror come up to me one time and complimented me on my trial performance. She said she would never want to have to face me in the courtroom. We chatted for awhile, and I told her how much I loved being a prosecutor. I thanked her very much, and then she said,

"AREN'T YOU GLAD THAT YOU'RE A PROSECUTOR AND THAT YOU DIDN'T BECOME A LAWYER?"

I told her that prosecutors ARE lawyers, but I didn't dare ask her to rate my performance in light of that fact.