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.

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The Teenage Brain (Or Lack Thereof)

by Donna Pendergast

As every parent of a teenager knows, the teenage brain is different from the adult brain. All jokes aside, some of these differences have neurobiological and neuropsychological underpinnings. Although the adolescent brain is fully grown in size it is a long way from mature. Along with everything else in the body the brain changes significantly in adolescence.

According to recent studies and neuroimaging research the prefrontal cortex of the human brain, which controls planning, emotion, impulse control, and the ability to assess future consequences, is not fully developed until one is in their early- to mid-twenties. This research confirms that the distinction between teenagers and adults is more than one of age. It is one of physiological maturation.

Is an immature brain an excuse for committing a crime? The hot-button issue in juvenile criminal justice today is how to deal with the physical reality of brain development while demanding accountability for crimes committed by teens.

THE DEVELOPMENT OF A BRAIN

A key difference between adolescent and adult brains concerns the frontal lobe. During maturation, the human brain develops from front to back. The largest part of the brain, the frontal lobes, are in the front part of the cerebrum, the most sophisticated area of the brain. The size of the frontal lobes does not change significantly during the adolescent years but there are dramatic changes in their composition. A small area of the frontal lobes, the prefrontal cortices, are the last areas of the brain to evolve during the development process.

The adolescent brain truly is a work in progress. Two processes are taking place at a rapid rate: pruning, the process by which unnecessary nerve synapses (gray matter) in the frontal lobe are eliminated) as well as myelination, involving white matter that envelops connections to stabilize them. This conversion of gray to white matter is critical to making the brain's operation more efficient and developing the neural networks regulating behavior. The frontal lobes regulate the amygdala, the brain's emotional center, which controls anger, fear, recklessness, and gut responses.

A fully developed prefrontal cortex helps adults predict the consequences of their actions. In adolescents, the less developed prefrontal cortex affects the adolescent's ability for mental reasoning, decision-making, and assessment of consequences.

WHERE TO DRAW THE LINE

What are the implications of adolescent brain development on the juvenile justice system? Because their brains are not fully mature, teens have a more limited capacity to self-regulate their impulses. Teens do not handle social pressure and other stresses the way adults do. However, despite brain immaturity, the fact remains that the vast majority of teens do not commit Columbine-type massacres and other forms of violent crime.

Is the greater question what is wrong with our country that we have such a pervasive problem with violent juvenile crime? Other developed countries do not have anywhere near our violent juvenile crime rate.

It's easy to know what to do with a teen such as Jean Pierre Orliewcz. Orliewcz (pictured right) was recently tried in the Wayne County Circuit Court in Detroit for stabbing to death an acquaintance and then telling him "just let it take over" as his victim lay dying in a pool of blood on a garage floor. Orliewcz then beheaded his victim and used a blow torch in an attempt to obliterate the victim's fingerprints and further conceal his identity. He later told authorities that he was "excited" by the idea of killing someone and getting away with it. At his sentencing last month, the judge told Orlewicz "There is a difference between mental illness and evil. You are tantamount to evil."

Clearly we cannot allow juveniles to be exonerated from any consequences for their criminal actions. An immature brain should not entitle juvenile offenders to a "get out of jail free card." Teenagers who demonstrate a vicious and callous disregard for human life must not be allowed to blame their actions on an undeveloped brain and walk away from their crime. But what about the criminal cases that are less clear-cut and do not involve the taking of a human life?

Neuroimaging research alone cannot determine an adolescent's criminal responsibility. Imaging is not diagnostic and you cannot do a scan to settle moral and legal questions. The big issue is: How do we balance necessary deterrence and the need to protect society with the best practices that encourage rehabilitation of a juvenile offender? There are no easy answers.

Statements made in this post are my own and not intended to reflect the views, opinions, or position of the Michigan Attorney General or the Michigan Department of Attorney General.

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