Natty Shafer Law

Utah lawyer for criminal and immigration cases


Prosecutors with Weak Cases

One the frustrating things about being a defense attorney is the presumption that prosecutors only bring cases when they are sure the defendant is guilty. Unfortunately, prosecutors just do not spend a lot of time pondering whether each individual defendant is guilty. Now an interesting study from earlier this year found that one of the predictive factors in having a case later overturned was the prosecutor having had a weak case. The study compared the overturned convictions with what they called “near misses,” or cases where an innocent defendant was indicted but released before a conviction. (To determine that the near misses were actually innocent, the study examined the evidence to see if the person was actually innocent.) Overall in the near misses, the prosecutors actually had stronger cases. This is counterintuitive as we usually expect weaker cases to be dismissed sooner and stronger cases to have a higher chance of conviction.

To explain this phenomenon, some explanations are more charitable than others. Among the more generous interpretations are that prosecutors, realizing the weakness of their case, prepare for trial better, or that this is merely a failing of the human mind. Prosecutors who indict in spite of a weak case must first convince themselves of the correctness of their position. That internal conviction “translates” well with jury, and the jury convicts because of the confidence of the prosecutor. A less generous interpretation is that prosecutors with weak cases take active measures to illegally withhold evidence from the defendant. They become so committed to proving the defendant’s guilt that evidence potentially exonerating the defendant is discounted. In some of the cases the study examined, the prosecutor failed to turn over exculpatory evidence.

Other possible explanations the study highlighted are that prosecutors might behave differently when they have a weak case. While the police and the prosecutor are still investigating, they often realize they need to shore up weak aspects of their case. In some of the overturned convictions, the prosecutor used a lineup based on a merely passing resemblance to the victim’s description of the perpetrator; some victims feel compelled to select someone out of a lineup, but once a victim chooses someone they are unwilling or unable to tackle the idea they may have made a misidentification. In some cases, the prosecutor used a snitch to provide corroborating testimony. (The word “snitch” has a specific use in terms of testimony. It refers to someone who is not an eyewitness, but that supposedly gets an accused person to confess or corroborate all or part of the case against them. For myriad reasons, such testimony is extremely unreliable. Often, a snitch will receive compensation in the form of a reduced sentence or better living conditions in exchange for testimony. Unfortunately, juries often give snitches too much credence.) These actions have the effect of confirming a prosecutor’s incorrect hunch about a case, and people love when their hunches are confirmed.

This is just one of the many reasons that defense attorneys frequently remind juries to hear all the evidence and evaluate it on its own terms. Prosecutors frequently are wrong, and, as this study suggests, sometimes more likely to obtain a conviction when a case is weaker. That is why juries must actually listen to the evidence presented and uphold their duty to find a defendant guilty only when they are guilty beyond a reasonable doubt.

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Prosecutorial Discretion, Part 2: Plea Bargaining in the Modern Justice System

Part 1: Introduction

Justice is unbalanced.
Photo by “Frachet

The modern day practice of prosecutors is to charge a defendant with every charge that could apply, and then drop several charges during the plea bargaining phase. It was not always so. Until about 1970, plea bargaining was a rare occurrence in the United States. When people were charged with crimes, prosecutors were expected to prove them before a jury. There were exceptions, of course, but sooner or later they had to go before a jury and make a case. This kept them in check. The more crimes charged, the more preparation to be done for a trial. Including weaker charges would allow defense lawyers to focus on those charges and suggest they were overzealous. Prosecutors probably care a little too deeply about their win/loss record for each charge in their jury trials. (They look at it like baseball stats, in a way.)

In 1970, the Supreme Court gave its explicit blessing to plea bargaining. Article III of the Constitution provides, “The trial of all crimes, except in cases of impeachment, shall be by jury.” Many legal experts were of the opinion that plea bargaining was unconstitutional. In Brady v. United States the Court said that plea bargaining is acceptable as long as the pleas are “knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” The number of cases resolved through plea bargaining jumped and kept on growing so that few cases make it to trial now. Today, prosecutors regularly agree to drop one or more charges in exchange for a plea, and judges have no problem with this.

This period of plea bargaining has also coincided with a systematic increase in prison or jail sentences. Legislators have decided that they want to be “tough on crime” so that sentences are about three times as long as they were fifty years ago. Combine this with an explosion in the number of crimes that are on the books and a person can be facing a very long sentence, indeed. As a result, many defendants feel coerced into taking a plea. Some prosecutors threaten to bring further charges or prosecute friends and family, if a defendant does not take a plea offer.


Prosecutorial Discretion, Part 1: Introduction

The Aaron Swartz story has highlighted the immense power prosecutors have in the justice system. For those who are not familiar, he faced federal prosecution for downloading millions of articles from “JSTOR,” an online source for academic articles, and for improperly using the Massachusetts Institute of Technology (MIT) computer system to download those articles. On January 11, he hanged himself after being unable to reach a plea resolution with the federal prosecutor, who insisted that he plead guilty to all 13 felony counts and that he spend at least 6 months in jail.

In a public statement, his family referred to the proceedings as “prosecutorial overreach.” Swartz had an account with JSTOR, but he exceeded JSTOR’s limits on the number of articles he could download by using a program called “keepgrabbing.” After he was caught and he returned his copies to JSTOR, JSTOR’s attorney asked the prosecutor to drop the charges. However, MIT was also a party and did not push for a dismissal. If Swartz had been convicted at trial, the prosecutor would have asked for at least seven years in prison and could have gotten as many as 35.

A prosecutor has an ethical duty above and beyond that of most lawyers and must be a “minister of justice” and not just an advocate. As part of their prosecutorial discretion, they have the power to decide who to prosecute and what charges to bring. No matter how much someone may desire a prosecutor to pursue a case, a prosecutor can and should decline to do so if they don’t think it is in the interest of justice. (This can be particularly frustrating for victims who find they have no way to force a criminal case to go forward.)

If we believe prosecutors will use their power for good, prosecutorial discretion is not a problem. Prosecutors are either directly elected, or someone who is elected appoints them. In Utah, each county elects their district attorney, and the district attorney is in charge of hiring and prioritizing assets, such as which crimes to prosecute. Making a prosecutor a political position has advantages and drawbacks. On one hand, it makes prosecutors accountable to the people, but on the other hand, it can politicize decisions and force prosecutors to pander.

It is now common for prosecutors to use a kitchen sink sort of approach to charging defendants because it makes it appear they are tough on crime. A prosecutor throws every charge against a defendant that they could theoretically prove; they seldom charge just the serious charges or the charges they are sure they can prove. As I have mentioned before, everything is a crime now so a prosecutor can indict nearly anyone if they are determined. It is literally impossible for anyone, lawyer or layman, to know whether every action is legal. Many crimes are not even intuitively wrong, but are rather administrative crimes. Swartz was charged with 13 felonies because the prosecutor knew that most juries would find him guilty of at least one of the charges. The more times jurors have to say “not guilty,” the more they feel like they are saying they morally approve of the defendant’s conduct.

Another part of a prosecutor’s discretion is whether to offer or not offer a plea deal, and to decide the terms of a plea offer that they will accept. Unfortunately for Swartz, the prosecutors in his case refused to accept any deal that did not involve jail time.