Herbert Stern is a god among men when it comes to trial advocacy. He is also an accomplished judge, prosecutor, and criminal defense lawyer. Stern’s Diary of a DA: The True Story of the Prosecutor Who Took on the Mob, Fought Corruption, and Won is packed with war stories and lessons. It’s excellent. Below is an excerpt of one of the many stories that stood out to me.
“The [the judge] announces the decision. Count I, Larceny, one-year imprisonment. Count II, Assault, one-year imprisonment. Sentences to run consecutively.
I am beside myself. I can’t believe it. They just gave the man two years! I simply can’t contain myself. Improper or not, I literally run up to the bench. Standing in front of [the judge], I commit a contempt of court. “How could you do that?” I say to him. But he doesn’t hold me in contempt. Instead, with his eyes cold and unblinking looking into mine, he says, “Mr. Stern, if you did not want us to convict him, why did you prosecute him?”
I stand frozen. There is nothing I can say. So I turn around and go back to my place, while the court officer gets ready to take the defendant back to the holding pen.
“Mr. Stern, if you did not want us to convict him, why did you prosecute him?”
I know I will never forget those words. They will be with me to the end. I had thought I did right, not wrong. I did not know if the defendant was guilty or innocent. I never will. I did not know if the witness was right or if he was wrong, or even if he was lying in his answers. I did not think my job was to judge credibility. I believed it was for the court to decide who was telling the truth and my function was to just present the testimony. I thought that once I had a prima facie case, my job was to put it in, warts and all, and let the tribunal determine the truth.
But standing before that cold man I see that I am wrong, and I will remain wrong as long as people like him sit in judgment. I have learned that a prosecutor must do more than determine if a judge or a jury could legally convict. In that moment I see that the prosecutor must do more than advocate reasonable positions. The power of his office is too vast to permit him to shift responsibility from himself to any tribunal for the outcome of what he alone has the authority to initiate.
As I watch the attendants lead the defendant away, I make a sacred promise. Never again will I turn over to a judge or even to a jury any person whom I believe should not be convicted.”