An Open Letter to Prosecutors

This past year I had a case that particularly troubled me. It wasn’t the alleged crime, the media coverage, or my client—it was the prosecutor’s unwillingness to see the case for what it was.

The case was weak at the outset: the police report was lacking and there were witness statements favorable to my client. The prosecutor, however, believed he knew the facts and was convinced my client was guilty.

I had my investigator get to work. He found a credible witness the police had not interviewed. The witness was a friend of the victim, and he made it clear that the prosecutor’s version of the facts was wrong. I presented this evidence to the prosecutor, hoping the prosecutor would get rid of the case or, at least, reevaluate what he believed the facts were. But it didn’t make a difference. The prosecutor had already made up his mind, so we went to trial. And, thankfully, the prosecutor’s version of the facts did not hold up.

I don’t know why the prosecutor was so convinced of his version of the facts. And I don’t know why I wasn’t able to persuade him to see the case differently. Maybe I was too aggressive in my position, causing the prosecutor to double down. Or maybe he just wanted to win big. Who knows…

I have been on the other side. As a young prosecutor, I also wanted to win. I admittedly had tunnel vision at times. I remember sitting in on a charging decision meeting with a senior prosecutor a number of years ago. It was his case; I was just there to learn. There were so many charges he could have brought, a number of them triggering some pretty serious mandatory minimum sentences. But he was only going to charge a couple of them. I asked him why he wasn’t bringing them all, and he reminded me what the role of a prosecutor is:

“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. . . . While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. . . . A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”

-Robert H. Jackson, The Federal Prosecutor (April 1, 1940)

The job of a prosecutor is not easy. It’s hard, often thankless work. Yet it’s important work that must be done right. I ask that you always remember Justice Jackson’s words and that when in doubt, do not be afraid to pause and reevaluate. Sometimes the lawyer on the other side is right 😉

Thank you for all that you do.