GOOGLE BLOG PROBLEM: RESOLVED. Please post your comments.
Hypothetical: You are a prosecutor in charge of screening arrests and filing charges and the police come to you with the arrest of an individual who is seen by one unbiased witness performing a sexual act on an incapacitated elderly person. There is no physical evidence, there are no statements, there is no 404(b) Williams Rule evidence available. All you have is one witness who is one hundred percent certain they saw the Defendant perform an outlandish and horrific act upon an incapacitated person.
What do you do and why do you do it?
Answers with case law/Rules of Ethics get extra credit.
You have twenty minutes, no peeking at your neighbors. Begin........NOW.
It slipped by us yesterday. Usually we wear a Tuxedo to work and have a little party. Yesterday was the First Monday in October and the US Supreme Court is now officially in session. May Obama save the United States and this Honorable Court.
What does everyone's favourite federal Blogger and the back-up QB for the Philadelphia Eagles have in common? No, it's not the ability to run a 4.3 forty. Click here and find out, (and send David a box of dog biscuits if you're so inclined.)
21 comments:
Rump,
I am 21 years into prosecution. Those of you capable of doing the math will note that I am old...so old, in fact, that I was Lurvey's supervisor when he first submitted an application to the SAO. The attached resume designated that he hoped to "obtain a position as a criminal defense lawyer."
I am now a fed, but here in the hinterlands, the feds have exclusive jurisdiction over the reservations, so I have kept a hand in violent crime to a degree that most AUSA's do not. These are my bona fides...and, thus:
First and foremost, you don't charge this case unless you expect to be the one to try it. Rape cases, more than any others, require a degree of comfort with the witness, whether victim or observer. Tiny details will be all you have to convince a jury that the witness is both truthful and correct. You need not only to know them, but to believe in them. Since no two people view a case exactly the same way, on one this limited, no one should make the charging decision who will not personally live with it.
Second, you don't take an officer's word for the witness' statement. You meet with the worker yourself and essentially subject her to cross-examination. I remember a witness asking me: "Why can't you just believe me." I told her: "I do, but I need to know whether a jury will." Your interview needs to cover all the innocent explanations (smoothing her sheets, holding her hand, "laying on hands").
Third, you expend more resources than normal to find ANY corroboration of either guilt or innocence. Did anyone see either person leaving the patient's room? Was there any history between the Chaplain and the witness that might taint her opinion of him?
Last, you weigh what you have against the standard of what we can prove, not what we believe or even what we "know" to be true. (These cases get a lot harder to bring yoruself to dismiss where you and the officers are aware of 404(b)-type evidence that is not going to be admissable).
When I first left Miami, I was watching a state AG try a sexual assault case here in SD. Talking to him afterward, he told me something that stuck with me. He was the AAG who tried most of the sex abuse cases in the truly small towns state-wide where the State's Attorney was likely a part-time position. He said that he was particularly careful in his charging because "once I charge out a case, I have destroyed the defendant, whether or not I convict him." I hope I have kept that in mind on every case.
But that doesn't mean that a prosecutor should never try a one-on-one, "he-said, she-said" case. I truly believe that unless you sit through the entire trial, you should not cast aspersions on an identifiable attorney. Sure, the 404(b) evidence makes it look bad for anyone who works for that office, but that's the sort of reasoning that you would correctly decry if it came from Mr. Satz.
I think I took more than 20 minutes, but this blog represents entirely my own work in accorance with university regulations. Please govern yourselves accordingly.
Golembe!!!!
(c) all rights reserved.
I am not speaking to you.
And that's another Miami Dolphins win over the Buffalo Bills. Bring on the Jets. J E T S
losers loser pansy losers.
Nice sentenment from a Fed...But that Office -- the US Atty SD Fla, bears no resemblence to what was written. The prosecutors are generally (of course there are exceptions to the rule) mean spirited and holier than thou. They do not seek justice, only convictions. To that office, justice = convictions. It is a shame that somebody with some character cannot be placed in authority there to set that ship straight. The office flat out is a fucking disgrace and dirties what it means to be a prosecutor.
I don't have a problem with the State taking cases to trial. That's the job of the SAO?
I would like to see some compromise with cases such as this one in which you have one witness who says what she saw is fact, and a defendant who says he is innocent.
First, the SAO should offer the witness a polygraph and if the witness fails (shows deception) just drop the case.
If the witness shows no deception the State should offer the defendant a polygraph with a promose that if the defendant shows no deception the case will be dismissed.
Compromise is the solution for a tough case like this. The SAO has to be sure a sicko is not set free without a jury hearing the case.
Remember there is a witness. How do you compromise a case like this one?
I wonder whether you're a lawyer, and I say that in a respectful manner. The prosecution will never open the pandora's box of polygraphs as a policy. They will review them in certain cases but will not have an official policy.
The answer to your question is simple- there is far too much at stake for the average individual for the state to prosecute people on the say so of another. That's why there are detectives and that's why we have all of these sophisticated tests. Without evidence that can be supported the state should not as a rule- but of course exceptions are always possible- prosecute these types of cases.
Those of you who have been around a while remember John Hogan as Janet Reno's chief assistant. More than twenty years ago I met with him on a serious allegation of sexual battery that was not supported by any other evidence like the victim going to RTC, etc. The prosecutor wanted to file. Mr. Hogan gave me a meeting at the end of which surprised the hell out of me by saying that he would not file the charges without additional supporting evidence.
That's what prosecutor's are supposed to do. I think I made him feel better after the meeting when I dropped a poly on his lap in which my client had passed and a list of alibi witnesses where my client was when the victim said she was assaulted. I challenged him just on the state's ability to move forward without any corroborating evidence and he agreed with me. I was holding my evidence until I had a better idea of his thoughts. I was not going to reveal my evidence until I saw his attitude as I did not at the time know him very well. Needless to say I came away from the meeting believing he was the type of prosecutor that could be trusted to do the right thing and would not have taken my evidence merely to start figuring out a way around it.
That particular resume was intended for the PDs office. When Ms. Reno asked why I applied if that was my goal I inquired whether she received my updated resume. She laughed and hired me.
DL
Here is the response on this issue from the prosecutor in question, as posted on the Broward Blog.
I stand by my comment yesterday. Merely having no reasonable hypothesis of innocence should not be the standard by which a prosecution is started or stopped. Certainly if all there is would be circumstantial evidence, I can appreciate that being the standard. But you have an unbiased witness who is absolutely certain of what she saw. To just disregard that when there would be no other evidence that reasonably existed would leave many crimes unprosecuted due to over-extreme caution.
Here is his comment:
ASA Griffis wrote:
Much of the above posting about this case that I prosecuted could not be further from the truth.
It’s precipitated by a partial quote in the newspaper, part of a much larger statement I gave to the reporter, that has been taken out of context. Granted, even in context, this was not the best choice of words on my part. What I had intended my words to mean was not how they were construed.
Beyond that, the above posting neglects many of the facts in this case.
Going in, I knew this case would be very difficult. But then, if cases were dropped simply because the evidence consisted largely of the testimony of a sole witness, there would be numerous cases that would be unjustly dropped. That is not the standard that I gauge cases by.
Prior to the trial, I considered the strengths and weaknesses of the case. I again brought in the witness, a nurse’s aide who witnesses the incident and had never met the defendant. Following that interview, I was confident that there was a reasonable likelihood of conviction. The witness was very specific about what she saw, including the defendant’s sex organ, and what he was doing with it. She was adamant that there was no mistake on her part. The surrounding evidence supported her story. On the stand, the defendant acknowledged he was standing at the head of the bed, not kneeling nor holding her hand.
During the trial, it simply was whether the jury believed the witness was accurate in her observations. They did not. Hence my “comment,” only partially reported and misconstrued as it was.
There was no pressure to proceed from those above me, no “indoctrination”. In fact, I had been told quite the contrary, to drop the case if I felt that there was no reasonable likelihood of conviction. I concluded there was a reasonable likelihood of conviction. Had I felt the defendant innocent, I would not have proceeded to trial.
Abiding conviction of guilt + reasonable probability of conviction = FILE.
If the ASA met with the witness, truly believed the witness and thought a jury would believe the witness beyond a reasonable doubt, then filing this case was absolutely the correct decision.
I would venture to guess that the ASA's comments post verdict were attempts to avoid being a sore loser, i.e. blaming the jury for a NG.
Rumpole,
It strikes me that in the meeting you had with Mr. Hogan you were playing the sort of game that you would criticize were a prosecutor to do the same. What's wrong with every one putting his cards on the table during the pre-trial conferences? You would have been giving a prosecutor enough reason to go back to the witness and say we do not find you reliable, and without further evidence we will not be able to proceed with the charges.
However, more to the point of the post, you are absolutely correct in saying that the State should not as a rule prosecute these cases, but there are always exceptions.
I worked in Domestic Violence for a number of years and the moral ambiguities inherent in family violence cases is staggering. And when children come forward the complexities increase exponentially.
Unless, you have had a child in your office telling you that he saw his father hit his mother, and the mother has recanted, you don't know how tricky filing can really be. I made it a point to never pass a problematic case to a pit prosecutor, but still I filed cases that I didn't hold out a lot of hope of getting convictions on. Fortunately, Miami-Dade is blessed with a strong defense bar that does not see prevailing against the State as an end in itself. Many of the defense attorneys I worked with wanted their clients to get help, and the weak cases usually worked out to everyone's satisfaction.
Many others, however, had to be filed and taken to trial. I didn't see much choice. I followed Janet's dictum to proceed on cases where I believed the defendant to be guilty. I got convictions on some, and some were acquitted, but since it's not a game, I didn't keep score.
I can't say that I always felt good about getting convictions on these cases; after all, when the State wins, more than one life may be ruined, so sometimes I felt like I was a necessary evil, but I felt some satisfaction in doing my job.
I never, or rarely, criticize a prosecutor or defender in handling a case that I don't know more about than what I have read in the paper. I have practiced a lot in Broward over the years, and that office is filled with lots of good prosecutors who are hamstrung by an execrable system of prosecution. If the system is Satz's fault, and most say it is, then he should be replaced. The system of prosecution in Broward has even infected the bench, which may be the worst in Florida.
I don't think the prosecutor should be criticized unless we know how his decisions led to the moment when he spoke to the press and said that the outcome was appropriate.
The subject is important, though, and I appreciate you bringing it to the table.
Let us remember the ancient Republican proverb:
Better to jail 10 innocent men, then to let a guilty man go free.*
Certain restrictions apply. Void where inconvenient.
Rump= Monday last week a guy calls and says he's writing a book for the "NY Times website" about the 100 best blogs and your blog is being considered. Will I speak with him? I give him a few quotes.
Wednesday his secretary calls to review my mailing address and information.
Friday I get a call but don't return it.
Monday this week the "fact checkers" call to verify my quotes. I verify them. They tell me they're not allowed to really say this but the blog is going to be included in the book and my quote will be used.
Today I get a call asking if I want to order the soft cover version for 49.95, the hard cover version for 59.95 or the leather bound edition with my quote separately framed for 124.95.
Real or scam?
was Hogan wearing a stolen suit?
This is absolutely positively a crazy baseball game between the Twins & the Tigers. Some amazing plays in the last few innings.
Still 5-5 in the top of the 12th
Hey, Tuesday, October 06, 2009 8:36:00 PM
It is a SCAM!!
I can't tell you how many times I have been choosen for the Who' Who of American Business (never heard of them right?) Just send them $50 bucks for a copy that has my name in it!
Yea, right.
With Goerge Slattery gone (RIP), who is now the top polygraph guy in Miami or the State for that matter? Who has the talent and respect of George Slattery?
"Ace attorney Bob Amsel"
Love the humor.
Bob Amsel is a well known and well respected criminal defense attorney who if my memory is correct recently within the last few months won a hotly contested federal trial over some alleged criminal incident that happened on an aeroplane. No humor intended. Bob is a very very skilled lawyer and most other judges and lawyers would agree.
By the way genius, you your comment in the wrong section.
The man who took over for Slattery fails everyone, that's all i know.
Ethics say that if you are completely convinced as a prosecutor the witness is telling you the truth, you prosecute. The first poster (fed prosecutor, I won't hold that against you) is correct.
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