Wednesday, July 23, 2008

WIN AT ALL COSTS? NOT REALLY

by Kelly Siegler

Why is it that the media and Hollywood seem to be obsessed with the idea that prosecutors are always after the "win," the "scalp," the conviction? How many times have we read a book or watched a movie that was all about some unethical prosecutor seeking to advance his or her career by convicting an innocent citizen? Not just about blurring the lines and disregarding the rules of evidence but flat out doing their utmost to convict someone who the make-believe prosecutor knows full well is innocent of any crime.

Oh, it all makes for a very touching and absorbing story. As well as feeding into the kinds of tales that Hollywood likes to tell.

The only problem with such stories is that nothing could be further from the truth. Quite the opposite, in fact, from the standard, typical everyday problem that truly exists with prosecutors. Ask any veteran police officer or detective. Ask any long-time crime victim advocate. Ask any respected judge. They know what the true problem is with way too many prosecutors. And it has nothing to do with trying to convict innocent citizens.

The real problem is that far too many prosecutors are worried about taking on a difficult case, a case that is not a slam-dunk or a whale ("as easy as harpooning a whale in a barrel," as we say in Harris County, Texas). Too many prosecutors demand that the cases presented to them for the filing of charges come to them with all the questions answered and wrapped in a pretty, little bow. What prosecutors seem to forget is that the question they need to be asking is whether a jury of twelve, ordinary, normal, non-lawyer citizens would convict on the evidence presented to them or evidence easily developed by the prosecutor after the filing of charges.

Evidence easily developed after the filing of charges. Maybe it's laziness that's the problem. Or maybe prosecutors get away with rejecting charges because everyone forgets that a lawyer can work up a case and investigate it further just like the police officer who initially worked on the case can. There is absolutely no reason for someone preparing to go to trial to not try to make the evidence stronger. The truth is the truth and a prosecutor can find that one additional witness or one little piece of evidence just as easily as a cop can.

I betcha if you could interview a group of experienced detectives and ask them what their number one pet peeve about their job was, the answer you would get would be having to present their cases to prosecutors who have no guts. As a prosecutor with over twenty years of experience, I can't count the number of times I have heard well-respected police officers vent about this problem.

So why is this "chicken" attitude such an unknown problem? Simple. Primarily because prosecutors don't usually talk about it. And those same righteously upset cops don't typically tattle about it; they just try to figure out a way to work around the problem. So instead of officers being able to go to a prosecutor to seek advice on an investigation, what happens more often than you would ever expect is that the officers find the prosecutors they are forced to deal with to be an obstacle in their investigations.

And that is a tragedy.

What is even more tragic is the number of victims in our society who have been made to believe that the crime committed against them or against their loved one is a crime that does not merit the prosecution or filing of charges. It would be a rare case for a police officer to say to a grieving family member that he believed that there was enough evidence to file a charge and convict a guilty defendant BUT the PROSECUTOR he went to decided there was not enough evidence. Cops don't do that because all that does is cause a victim more pain. So in effect what happens is a cowardly prosecutor is shielded from having to make a tough call or take on a difficult prosecution. And a hurt or grieving family is left to suffer even more.

So let this serve as a wake-up call or a call to arms to victims. If you have a true understanding and appreciation of the evidence in a case that concerns you, ask your detective what he thinks about the state of the evidence. If necessary, complain. To the police officer's supervisor, perhaps more importantly to the prosecutor's supervisor. What if the prosecutor is the elected DA who has no boss? Then complain to your local media; that's a story they would love to jump all over. They would get a twofer: the ability to investigate a REAL crime and criticize the local prosecutor's office while showing them up. Besides, what do you have to lose by complaining?

What seems to get lost in all of this is the fact that prosecutors are like any other professionals. By that I mean that no two are alike. Do you think every teacher handles her classroom the same? Or every orthopedic surgeon agrees on when surgery is necessary? Is there a difference in attitude between NFL quarterbacks Brett Favre and David Carr? Or between Diane Sawyer and Nancy Grace? Same thinking applies to prosecutors and how they do their jobs. It's just that we don't seem to appreciate that personalities do affect their decisions, such as what constitutes enough evidence to file charges.

Prosecutors' differences are more apparent in the courtroom during trial. We need to realize that those same differences apply to their decision-making, especially when it comes to that initial decision on whether to take on a case that might well be more difficult than most.

In contrast to the very rare, despicable prosecutor like Mike Nifong (below), how many more are out there handling cases but refusing to accept charges when the evidence seems more than sufficient to you? Nobody truly knows ALL of the evidence in any case but the investigating officers. Do we really know ALL of the evidence in the JonBenét Ramsey case? (See Stacy Dittrich's blog for an update.) Or Natalee Holloway's case? Or even in a case that concerns you?

Win at all costs? Funny. Unfortunately, the truth is, all too often, prosecutors won't even get in the game.

26 comments:

Levi said...

Kelly, maybe one solution to victims is to get a special prosecutor involved in the case? I personally think that a special prosecutor should be appointed in the JonBenet Ramsey case.

Could you explain the process of how a victim or concerned citizen can actually get a special prosecutor involved?

Great post!

cricket said...

I lament with you that the days of the Teddy Roosevelt "guts, pride and dedication" in governmental employment is a rarity. It sounds like the typical ADA is just like any other typical government employee. In the ADAs' defense, however, their complacency is merely a reflection of society's apathy in general. Couple that with the security of government employment that rewards sheep who endure rather then eagles who soar and what do you expect? That's what made you so special. Our county already misses you....I hope you agree to serve as a special prosecutor in Harris County from time to time.
As Coach Daryll Royal once said, "Luck is when preparation meets opportunity..."

Kelly Siegler said...

Levi, the appointment of a special prosecutor can happen for many reasons. Typically, the elected DA requests that it happen and an administrative Judge would decide who the special prosecutor would be. Also, as in the case I start working on next week in a county not far from Harris County, the Wharton County DA requested permission from his county officials to be allowed to hire/pay me to help in the prosecution of a death penalty trial set there for September. The "complication" when a victim or citizen asks for a special prosecutor comes in because for the most part, district attorneys don't want to give up control of cases; you can understand why. In the Ramsey case, it would seem even less likely because I don't really see JonBenet's daddy asking for yet another review by yet another prosecutor. IF the problem with that case does lie in the differing opinions of the true evidence, probably only a loud outcry from the police agency involved could make the appointment of a special prosecutor happen.

Donna Pendergast said...

Kelly,

Harpooning a whale in a barrel----that's funny. We say "shooting a fish in a bucket" around these parts. It means the same thing as yours. Guess it's a regional thing :-)

jigmeister said...

Kelly,

We both know there are lazy prosecutors that believe that the case has to be handed to them all wrapped up in a bow, and then there are those prosecutors that genuinely don't know how to make a case better. That's the elected's fault for not insuring that his personnel are properly trained. (Whales are made by good cops and prosecutors)

If you are talking about this Minnesota case. It is very difficult prosecuting a case where the M.E. won't or can't call it homicide. I had a case like that once where the M.E. called it natural and was only convinced when witnesses were produced to show that the natural was induced by nafarious humans making it murder. I also remember cases where I declined to prosecute, though I thought it was murder, after the M.E. refused to call it homicide, resignedly recognizing that a Not Guilty permanently ends any chance of prosecution.

Connie Park said...

Kelly,

We (investigators) all hope to work with prosecutors like you who are so passionate and are willing to take a risk on cases that are not slam dunks. I know many investigators would go specifically to you to present a case and to seek advice on how to work up the case.

If there was anyone who was willing to take a risk on a case you'd be the first one we would think of! We miss ya Kelly.

cricket said...

Jigmeister,
I think Kelly's point was that justice is paramount. It's not about winning or losing it's about doing the right thing. Doing what's right is often difficult in that it involves risk and hard work. If in his heart a prosecutor believes in the case it is incumbent on him to work his butt off and leave no stone unturned in the pursuit of justice. If in the course and scope of his investigation the prosecutor uncovers reasonable doubt as to his earlier convictions, then the case should be dismissed. However, if the prosecutor does not have a slam dunk but truly believes in the guilt of the defendant and there is no reasonable expectation that new evidence will surface to alter that view, it is his obligation to seek justice to the best of his ability and try the damn case. Cowardliness cloaked in self righteous political correctness has no place in a district attorney's office.

Anonymous said...

Ms. Siegler,
Have you been asked yet to try Fratta in Harris County as a special prosector?
I hope you accept the offer if made and keep Fratta on death row and little Dick DeGuerin in his place.

jigmeister said...

Cricket,
I think you missed my point. When you are outnumbered, sheath your sword until the odds are more favorable, for you get only one swing.

cricket said...

Jigmeister,
True. But if I sign up for the team and it's my at bat........if a strikeout is my destiny I'd rather do so swinging then passively watching strikes take me down. That's not to say a prosecutor should be cavalier; but he shouldn't be a coward either. Ironically, Rosenthal embodied both fatal flaws and look at the damage that continues as a result.
Some people prefer the arena while others sit in the stands and critique the combatants. A good prosecutor does not hire out to be the proverbial spectator. Risk is an inherent element of a prosecutors role as faith is an inherent element of Christianity.

jigmeister said...

Cricket,
I don't think our philosophy is different. I can't second guess either the prosecutors in Minn. 20 years ago or those who just lost, though decisions made for political reasons are often wrong. I certainly agree about Chuck. He lead from the rear, made bad decisions for political reasons, and failed to fight back, chosing a weak lie instead.

Though as an old JBH boy, doing the right thing after knowing all the facts (what you can know) will always hold you in good stead. I wish Chuck remembered that.

cricket said...

Jigmeister,
You summed up the Chuckster pretty well my friend. Rosenthal was and is a total disgrace. He single handedly dismantled the greatest District Attorney's office in the United States. His unbridled selfish arrogance directly cost our county the loss of the phenomenal super star potential of Kelly Siegler at the helm. I predict there won't be a single star veteran prosecutor with integrity left after the 1st of the year unless he/she is holding out a year or so for his/her pension to vest. I don't blame them for that considering the marginal pay they receive relative to their hard work and sacrifice; but their hearts won't be in it and justice will suffer tremendously. What a tragedy.....

Anonymous said...

Ms. Siegler...

After reading your posts, I want to say thanks for your intelligent insight into Texas justice.

KBH said...

Dear Ms. Siegler,
It makes me so sad to see your incredible passion and talent not where it rightfully belongs. I hope the phenomenal success you are sure to achieve in private practice does not preclude you returning to the DA's office in 4+ years to fix the aftermath of Rosenthal and his soon-to-be-elected corrupt successor. Travis County would be another option for you if you're interested and I would be proud to campaign with you in a few years. We need more strong women of character in government. I wish you all the best.

Prosecuting Attorney said...

You make some valid and thought provoking points. However, in accusing most prosecutors of "laziness," being "chicken," and in being "cowardly," you paint with a hugely overbroad brush. So I have to respectfully disagree.

I have been a line prosecutor assigned to a trial court and I have been in a unit akin to your Special Crimes Bureau. And from my experience, the regular line prosecutor is anything but lazy. Sure, as with any profession, there are some, but they don't last long. I find that most prosecutors are not hindered by laziness or a chicken attitude, but simply by a lack of resources - the greatest of which is time. Most would give anything to have the time to go out and pound the pavement, to find new witnesses, to develop extraneous offenses (which law enforcement rarely does), to, in a word - prepare. But, between daily docket calls and juggling a massive caseload, it simply cannot be done, even putting in nights and weekends as virtually every successful prosecutor must do, and willingly does do.

To characterize your former brethren as lazy, bureaucratic 'fraidy-cats does a tremendous disservice to all those who are out busting their tails, making personal sacrifices, with laughably low pay, all in the name of trying to do justice.

My point has been illustrated to me over the years many times. When prosecutors move out of the day-to-day grind of a trial court into our DA's office's special crimes section, we explain to them that their caseload will be dramatically smaller and, therefore, they will have the time to properly prepare their cases (and, of course, the expectations of them will be significantly higher). To a person, a look of relief washes over their faces and they say something along the lines of, "you mean I'll actually get to talk to my witnesses beforehand?" or "I'll have an investigator to help me? Oh my God, this is going to be great!" You see, most WANT to do what is right and WANT to do the best job possible and WANT to turn over every stone to ensure justice, sometimes the reality of the situation gets in the way.

Additionally, as to taking the hard case to trial, I again think your brush is too broad. There are two different kinds of "hard cases": that which isn't there yet, and that which never will be. As for the latter, I do wholeheartedly agree, if everyone has done everything possible to make that case as good as it can be, AND YOU TRULY BELIEVE THE PERSON IS GUILTY BEYOND A REASONABLE DOUBT, but it still has some big holes and it could be a loser, I say, in the name of justice, you go "balls to the wall," and do your dead level best to convict the guilty. (And I must say, it's those "nothing to lose" cases in which we often have the best results).

On the other hand, there is a different type of hard case. The one in which it isn't quite there, but things could change. That's where prosecutorial discretion comes in. That's where developing a good relationship with the police and with the victims and their advocates is key, so that they can trust your judgment when you tell them that it's not yet there, and the work must continue. We, the People only get one bite at the apple. If we go forward to trial before the case is truly ready, just because the victims and the police want it, and a "not guilty" is the result, that's it. There is no do-over. Yeah, you might get kudos for being brave enough to tee it up, but that doesn't change the fact that a criminal just went free. Just think of all those cold cases that lingered for years before forensics finally made the case. I bet those cops and victims were raising sand wanting justice. If some prosecutor would have taken the bait and taken that "hard case" to trial and lost, imagine the uproar when later, the forensics nailed the case but there would have been nothing anyone could have done about it, because the People had already taken its shot. That's not justice.

Finally, I do want to say thank you for your initial sentiment that the image of the big, bad prosecutor going after the innocent is a media-driven fallacy. I couldn't agree more. I've been working for the People for a long, long time. And, Nifong aside, I have NEVER seen a prosecutor who would willfully go after an innocent. On the contrary, I believe we are all concerned about (heck, "terrified" might be a better word) prosecuting someone who might be innocent. I wish there were some way to make the public at large see that the vast, vast majority of us are really trying to just do what's right.

cricket said...

Prosecuting Attorney,
Too bad your reality isn't so. As a tax payer I wish you were correct. Private practice and government employment are two (2) different animals. It takes much more "eye of the tiger" to achieve meritorious success in government employment. Hard work, sacrifice and ability are rewarded in the private sector while seniority is king in government and union entities. Since we are an award driven culture it is exceedingly difficult for career government workers to remain zealous in their respective job descriptions when quantity of time served is rewarded preferentially to quality of work performed. How are promotions decided in your DA's office? Are the best of the best actually promoted? How is hard work really rewarded? Have you ever worked in private practice (any field, not just law)so as to have a true perspective as to how the other side works? There are, of course, exceptions and those career prosecutors are blatant standouts and a blessing to our society......in your world they would be common place. Too bad your world doesn't exist. Maybe if the emphasis at DA office's rewarded your apparent work ethic instead of the status quo your fantasy world would become reality? Ms. Siegler was obviously one of the stand-out exceptions and look how she was rewarded when she tried to change the status quo and promote the ideals you espouse. Put yourself in her shoes when you decide to judge her sacrifice and dedication....

Prosecuting Attorney said...

Cricket,
My reality doesn't exist? How sad. I can only speak for the places I have worked and observed, and in those, I do not find that those who choose to make prosecution their career are people whose overriding motive is to "live off the government teat" as a country friend likes to call it. Sure, there are exceptions, and it would be wrong of me to say that they are ALL dedicated, hard working public servants, but I do believe that most are. But by the same token, it is wrong to characterize most or (God forbid) all of the rest of us as "lazy," "cowardly," and "chicken." If that is your reality, then I think a massive overhaul of your office is in order.

My comments are in no way directed to Kelly's sacrifice and dedication, nor are they intended to diminish her accomplishments as an extraordinarily talented prosecutor. They are directed toward what I consider to be an overreaching disparagement of a group of people that do not deserve to be characterized in the manner in which they were.

cricket said...

Prosecuting Attorney,
It sounds like Harris County could use your playbook. What Counties have you practiced in? Would it be fair to say that compensation and promotions are based on merit rather then determined primarily by seniority in your current jurisdiction? If so, I apologize and commend you and your office. Rewarding quality over "who's been there the longest" cultivates stars. You guys should therefore have a plethora of stars that Harris County sure could use to fill the void left by Ms. Siegler and the other exceptional ADAs that have already left or plan to by years end. I consider what people do to be more significant then what they say. Let's see what actually happens at the Harris County District Attorney's office now that Ms. Siegler's push for rewarding merit over seniority has reverted back to good old government basics. Who's gonna fix it? The Chuckster's replacement will be a far cry from a star let alone a super star. The anticipated failure is not rocket science it's basic human nature. I don't blame the people but rather the system that promotes mediocrity. It is the exceptional person of innate character and integrity that can overcome the convoluted reward system ingrained in the culture of government. Fortunately, many D.A. offices, including Harris County, attract that type of person. Unfortunately, the "system" disenchants most of the great ones while retaining the slugs. Look at what the government created in N.O.'s 9th Ward! We are a reward/punishment society.

Anonymous said...

Here in Harris County, Kelli Siegler was one of the win-at-all-costs prosecutors. She admitted her office did not comply with Brady "as well as it should" (i.e., didn't follow the law if winning was at stake), and she rarely complied with Batson if she wanted to get rid of Black jurors (read: Canadians.)

This post was sheer hypocrisy. No wonder she got rejected in the primaries.

laughinguy said...

The mindset in the Harris County DA office is one that rewards winning, not "doing the right thing." The office keeps track of guilties v. not guilties in cases tried by individual prosecutors, and determines advancements, retention and termination on them. This is NOT what the law states should be the task of a prosecutor. Instead, it should be to SEEK JUSTICE.

Unfortunately for the pencil-pushers on the 6th floor of 1201 Franklin, there is not an easy way to quantify "doing the right thing."

No, I've never been a DA, but I have done battle with them many times in the past. In one case, during the trial of an appeal of a class C misdemeanor, the DA argued with the judge not to declare a mistrial because it would count against his "stats" as a "loss."

Another thing that they strive for is having the "best numbers" in terms of how many cases are pending in their courts. Unfortunately, many of the judges also take part in this folderal.

I couldn't care less how many or few cases are pending in a particular court. What I really want to know is whether justice is being done - by the judge, the DA, and the defense attorney.

There is nothing wrong with prosecutors who fight hard. As long as they fight fair.

:-)

Paul B. Kennedy said...

Of course it's not laziness that causes prosecutors not to disclose Brady material -- it's the win at all costs ethos that pervades the DA's office.

That attitude leads to an office that thumbs its nose at the Constitution and it leads to a system in which men such as Clarence Brandley and Josiah Sutton are forced to sit in prison for years for crimes they did not commit.

Anonymous said...

Her opening thesis says it all:

"Not just about blurring the lines and disregarding the rules of evidence . . . "

It appears that Kelly really believes that prosecutors who do not "blur the lines and disregard the rules of evidence" are lazy and incompetent. Most prosecutors should (and would) be proud to be called lazy when judged against Kelly's irresponsible standard. Most call proscutors who espose her standard unethical.

Fortunately for the justice system, there are not many like her.

Anonymous said...

cricket,

Have you ever been and attorney or practiced in Harris County Criminal courts? It sounds like you don't know much about what actually goes on in there.
I quit practicing criminal law here because I could not stomach the antipaty of the judges, court staff and some procecutors about actual justice. Nobody cares about a defendant's rights. In Harris county you are treated as guilty until proven innocent.
I hope you never have the misfortune to be charged with anything in this county.

Anonymous said...

And how would Kelly justify the illegal use of grand jury subpoenas by issuing a subpoena in a non-related case to secure witnesses presence in another case so the defense attorney won't know? It happened!

Anonymous said...

What I love is when a case is up for trial and the prosecutor hasn't even talked to their officers or victims about the case AT ALL and havent watched any videos that are going to be used as evidence. This happens ALL THE TIME.

I even was talking to a chief prosecutor telling him about the good merits of my case and the serious problems of the State's case and I asked him to watch the video and he will see the problems I'm talking about. He said, and I swear, "let's just go ahead and pick a jury today and I'll watch the video tomorrow before we start testimony." The case was dismissed during trial. UNBELIEVABLE but exactly the sort of thing that is happening daily.

I was in another trial and moved to exclude a piece of evidence in a DWI and the judge had to give the prosecutor 3 tries to get it in the proper way. The prosecutor literally said "well judge I dont have much experience with this and you shouldn't hold that against me" The judge flipped out and dressed her down nicely for that unbelievable comment. Those are the people who we pay to represent our great State.

cricket said...

Kelly obviously tried way too hard to zealously defend the citizens of Harris County, right? How dare she try cases that were not "slam dunks"? Who the hell did she think she was? After all, it is the defense bar's exclusive province to "win at all costs", right?
NOT!!!!
There is a huge difference between a prosecutor creatively using every resource available in the pursuit of JUSTICE when he/she truly believes in a defendant's guilt verses advocating "winning at all costs" when that prosecutor has any valid doubt as to the guilt of the defendant.
Do any of you bloggers actually believe that Kelly intentionally convicted or tried to convict a defendant she had doubts about with respect to the issue of innocence? Greatness requires pushing the envelope and original thought......a concept reviled by chronic complainers that seem to be master excuse makers.
If Kelly decides to enter the civil arena, I doubt her 1st plaintiff will complain that she was too zealous in her preparation and execution of the case. No doubt, the next outcry will be from another defense bar that Kelly unfairly kicked their civil ass as well. Remember, the burden of proof on the civil side is not as stringent as the criminal, so look out!
Let's see if Harris County can become more like the good old Galveston and the new Dallas County DA offices......our new slogan can be "Lose at all costs"....