MY FIRST WEEK AS A PROSECUTOR: BETWEEN A ROCK AND AN ETHICAL HARD PLACE

I was so excited to get my first job out of law school.  I had had to wait for months for a job offer because prosecutors' offices in my state wouldn't even consider applications from people who hadn't yet passed the bar exam.  But by October, I got my bar exam results and soon after, I got an offer to work as an Assistant District Attorney in a populous county known for its cutting edge techniques in prosecuting sex crimes.  The night before I started work, my husband and I watched "Ghosts of Mississippi," the story of the D.A. who prosecuted the murderer of civil rights leader Medgar Evers thirty years after the fact.  Throughout the movie, my husband kept telling me how proud he was of me.  He kept saying how much good I would be able to do in my new position. 

My first day on the job I was given ten new felony case files to review in time for the next assembly of the Grand Jury the following week.    A felony is any crime that carries a possible sentence of more than a year in jail.  In order to bring a felony to trial, the case must be presented to a Grand Jury for an indictment.  For each case, the Grand Jury, a group of about 25 citizens, hears the testimony of the investigating officer and reviews the proposed charge.  If at least twelve of Grand Jurors are satisfied that there is "probable cause" to believe that the defendant committed the crime, they will "indict" the defendant. A defendant may or may not have been arrested already-- but either way he or she still needs to be indicted by the Grand Jury in order for the case to move forward. An indictment is simply a means of  bringing a defendant before the court for trial. 

My task the first week on the job in reviewing the ten new felony cases I was given was to determine whether to bring charges, to identify what charges to bring, and to draft potential indictments for the Grand Jury to review and sign.  I was also supposed to present the cases to the Grand Jury the following week and prosecute those cases once the indictments were issued. 

One of the cases was a 200 page burglary file.  I spent the better part of a day wading through it.  Most of the 200 pages were interviews with witnesses who had heard "rumors" that the suspect had committed the burglary.  There was also confirmation that the suspect was seen drinking in a bar near the burglary the night it occurred, and that his movements were unaccounted for between the time the bar closed at one and his return to his home at three-thirty in the morning.  The precise time of the burglary was unknown.  Finally, there was an interview with the suspect's brother who, after considerable arm twisting by the police, finally stated that the suspected had admitted the burglary to him.  After initially denying any knowledge of the burglary, the brother provided incriminating information only after the police threatened to charge him as an accomplice if he failed to implicate the suspect.  Nothing the brother said could be independently corroborated and, to me, it just smacked of the brother telling the police what they obviously wanted to hear so that he could save himself.   

My boss (the D.A. himself) was pleased with the indictments I prepared on nine of the ten case files he had given me.  But when we got to the burglary case file, I recommended that we not pursue any criminal charges. I explained why and assumed that the logic of my position was clear. After all, the interview of the brother was highly suspect and we didn't have any other hard evidence to tie the suspect to the crime.  My boss would have none of it.  He sent me off with a flea in my ear and told me to draft the indictment.  I was so stunned that I didn't protest at that time.

After puzzling over it, and sleeping on it, and talking to some other people about it, I went back to my boss the next afternoon and said, "Look, I feel really strongly that we don't have probable cause in this case."  I stuck to my guns and went through why the investigation was insufficient.  This time, my boss listened to me a bit more patiently (at first), but ultimately he said, "Look, we've got a statement from the brother, and the guy was in the right place at the right time. Draft the indictment." My boss started to get impatient towards the end of the conversation, and it was quite clear to me that he was starting to think of me as some sort of wimpy, bleeding heart -- not a reputation you want to have in a D.A.'s office.  I reluctantly drafted the indictment but it felt so, so wrong to me.

At this point, I was starting to freak out: it was only my first week of my first professional job and I was already confronted with an ethical crisis.  As an attorney, I am bound by specific ethical rules called the Rules of Professional Conduct.  If I commit a legal act, such as seeking an indictment, I am personally responsible for whether that act is ethical.  I am not off the hook just because my boss told me to do it.  Nor could I simply hope that the Grand Jury would not indict.  Everyone knows that indictments are so easy to get that "you can indict a ham sandwich."   The Rules of Professional Conduct are very clear: a prosecutor must refrain from prosecuting a case that he or she knows is not supported by probable cause.  In my view, this was just such a case-- and yet my boss had essentially ordered me to prosecute it.

The next couple of days were probably among the most wretched of my life.  My husband can tell you that there was much wailing and gnashing of teeth on my part.  I agonized that maybe my standard of "probable cause" was too exacting, that maybe I was naive or too idealistic, that maybe I was making things harder for myself than they had to be.   But I still felt that it was an inescapable fact that this prosecution was ethically wrong.  Finally, the next Monday, the day before the Grand Jury, I had decided that I would have to throw down the gauntlet, and simply tell my boss that I was not comfortable seeking this indictment.   

Of course, it wasn't as easy as all that. I was petrified.  My boss was a screamer, and he had a reputation for simply firing people on the spot if they displeased him.  As a good little rule-following perfectionist, I viewed the prospect of getting fired as the worst thing in the world-- and this was supposed to be the dream job for which I had worked so hard in law school and in studying for the bar exam.  I spent some time in my office that morning procrastinating, wringing my hands and gulping down coffee, working up the courage to approach my boss.

And then a miracle happened.  The criminal record checks for the witnesses in my cases came in -- and it turned out that the key witness in the burglar case, the suspect's brother had a perjury conviction!!!! I couldn't believe it-- I almost kissed the record itself and then bounded into my boss's office.  And thank goodness, even he, at that point, had to agree that it would be inappropriate to seek an indictment.  I was saved.

The next twelve months in that office were a terrible strain.  My boss allowed new prosecutors like me no discretion at all as to how to plea bargain cases or what sentences to recommend.  I was never again asked to violate my ethical obligations, but I was constantly forced to take positions that were at odds with my views of what a just result would be in a particular case.  Finally, I was asked to leave, the circumstances of which will be another story for another day. 

I wound up getting another job as a prosecutor for a very rural county.  My new county really needed me, and as a result, I was able to have an impact right away on my new office's policies on crime and punishment. Most importantly, I was in a position to refuse if asked to do something which made me uncomfortable. I believing that declining to prosecute inappropriate cases is a crucial aspect of the prosecutor's job.  I always had disdain for prosecutors who claimed that they "had" to pursue a particular case because the victim wanted them to or because the police wanted them to or because the Grand Jury indicted. 

What's the moral?  I think criminal prosecution is a noble calling.  As a prosecutor, you are in a position to bring to justice criminals in all their varieties, from misguided fools to vicious predators.  As a prosecutor, you are also in a position to guard the rights of the suspects of a crime, and to protect the innocent.  But in order to do your job ethically, you need to make sure that you take a job in an office that permits you some degree of discretion and that will allow you or encourage you to decline cases with which you are not comfortable. I would advise aspiring prosecutors to avoid jobs in which you are employed by the police department. If you work in a D.A.'s office, you should also make sure that you are comfortable with the D.A.'s philosophy on crime and punishment.  It's tough to ask a new potential employer those types of hard questions when you are fresh out of law school and hungry for a job -- but those are crucial questions to ask if you want to avoid the guilt and angst that come with being asked to compromise your moral worldview.      

Comments

[Natalie Bennett]

The same advice might also apply in journalism. My first boss, a wonderful country newspaper editor who had devoted his life to the paper and town (he'd started as a paper boy about age 10! and retired a few years ago in his sixties) had a tale he'd always told new recruits.

His brother ran a bakery in one of the towns the paper covered. He was charged and convicted for dirty premises, and Barry put it on the front page of the paper. Actually that was rather hard on the brother, since the story wouldn't otherwise have been on the front page, but the message was that you had to be seen to be fair and balanced.

Sadly, in subsequent employments, taking this early lesson to heart has been a serious disadvantage to me.

[Mrs. B.]

I enjoyed reading this.....thanks! I was curious, if you hadn't found out about the perjury conviction, in time, and you had told our boss you weren't going to prosecute, what would have happened with the case? Would he have prosecuted it himself or would your decision not to prosecute have ended it?

[The Happy Feminist]

I am glad you liked it, Mrs. B! I am not sure what would have happened. I suspect that my boss would have assigned the case to someone else and I would have been fired. (I eventually was fired from that job.)

[Ismone]

Thank you for the post. As a law student who wants to practice criminal law, and who isn't sure whether or not she wants to prosecute, it is really good to know that there are others out there who take personal responsibility when it comes to prosectorial discretion. I'm glad I'm not the only so-called "bleeding heart" out there.

[Simon]

I have a question perhaps different from others'.

If you were asked to leave, how did you get your subsequent job? Did you use your old boss as a reference? If so, why didn't he give you at best an equivocal recommendation? If not, how did you explain not getting a reference from the only professional job you'd ever had? What did you say when asked why you left your previous job?

[The Happy Feminist]

Hi Simon: You've inspired me to write a post ("Super-long Post on What It's Like to Get Fired") about how I bounced back from getting fired. The short answer is that my boss did give me a letter of recommendation, as did his deputy (who opposed the decision to fire me). I also asked judges and opposing counsel to serve as references. I think I was pretty lucky to get a job as quickly as I did -- I think good presentation skills on my part had something to do with it, as well as luck, and the fact that my new job was in a kind of remote place.