Robert P. McCulloch
We Need to Reshape Our Image
Recently a national magazine published a terrific article about a prosecutor in a death penalty state. The article rightfully praises the prosecutor for his approach to the death penalty and the process he uses to determine whether he should seek death in a particular case. The author went into great detail about how the decision is made.
These are the steps taken by the prosecutor in the article: A committee, consisting of several experienced prosecutors, a victim advocate and various others within the DA’s office, reviews each potential death case. The committee considers everything from the childhood and upbringing of the killer to the relationship, if any, between the killer and the victim. They look at the strength of the evidence of guilt and the history of the killer for violence. They examine anything and everything that may have some bearing on whether this particular killer deserves to be put to death. When the group has completed the review of the case from every possible angle, they make a recommendation to the DA regarding whether the DA should seek death. The DA makes the final decision after meeting with them and considering their recommendations and reasons for or against seeking death.
The purpose of this process, according to the prosecutor, is to ensure that only the guilty are subjected to a potential death sentence. In fact, if there is any real doubt about the guilt, then death is off the table.
Sound like a great system? It is. So what’s the concern? My concern is not with the system but with the article. The author believes that this is a unique procedure when in reality many, if not most, prosecutors review death and many other serious cases in a very similar manner. The author, however, actually claims that most prosecutors in this country are not interested in serving the needs of victims or preventing crimes in the first place but are only dedicated to those cases “…guaranteed to go Live at Five.”
A spate of other newspaper and television reports touted a study by a group modestly calling itself the Center for Public Integrity. The center, funded by, among others, George Soros, the billionaire who funds various attempts in this country to legalize most street drugs, claims that prosecutorial misconduct is at epidemic proportions in this country. To prove its point, the center breaks down the stats in each state implying that 20 percent of the appellate cases in this country are reversed because of prosecutorial misconduct. Their conclusion is that many guilty defendants are going free and many innocent victims are going to prison because of the conduct of the prosecutor.
The statistics the center uses for the states of Missouri and Oregon are typical of its attempt to shamelessly exaggerate the problem. The center alleges that from 1970 to 2003, the years of their study, 376 convicted felons in Missouri were the victims of prosecutorial misconduct. (Even though the center can find only 148 of the cases.) Seventy-seven of those cases, according to the center, were reversed, in whole or in part, because of the action of the prosecutor. The truth is that during the study years, Missouri appellate courts decided more than 20,000 criminal cases. Even if the center figures are accurate, 77 is hardly 20 percent of 20,000.
In Oregon, prosecutorial misconduct was alleged only 44 times and in only eight cases was the conduct serious enough to cause a reversal. This actually represents less than one-tenth of one percent of all the cases decided in Oregon. The type of misconduct that warranted reversal included an exasperated prosecutor calling a defense witness a “pimp” during closing argument—perhaps not the most decorous statement but hardly worthy of the term misconduct.
Both stories illustrate what I think is the biggest problem we face as prosecutors. We have allowed others to shape our image and lately it has not been a very favorable image. Even when a positive story such as that magazine article is published, it portrays a dedicated, honest, caring prosecutor as a novelty and, by implication or comment, the rest are concerned only about convicting someone, innocent or guilty, or furthering some political career.
Our responsibility is to protect the public from those who commit crimes and to protect those who do not commit crimes from unwarranted prosecution. Because of our critical role as the gatekeepers to the criminal justice system, we are and should be subjected to a closer scrutiny than others. The courts, media, bar associations and, most importantly, the public we serve all review our conduct on a daily basis. Our obligation to the public is to see that justice is served in every case. We know and understand that obligation. We also know that only in rare instances do prosecutors stray from that responsibility. It is time that we let the rest of the country know. Time that we begin to shape our own image.
During the next year, I hope to complete some of the goals established by my predecessors. The memorial to slain prosecutors will be built. The effort will be redoubled to pass legislation to relieve the crushing loan debt of new prosecutors. I also want to start work towards a new goal: To re-establish the position and image of prosecutors as the true defenders of the public and the innocent victims of crime. It is time that we let the public we serve know that we are dedicated, well-trained professionals.
We do a lot of great things. NDAA’s training facility at the Ernest F. Hollings National Advocacy Center is the crown jewel of our organization. The training, research and publications offered by the American Prosecutors Research Institute in the areas of DNA, domestic violence, child abuse, impaired driving and many others provides invaluable resources for prosecutors across the country. The comprehensive training by the National College of District Attorneys keeps us ready for new challenges in and out of the courtroom. The policies on DNA testing, elder abuse and in many others areas are the result of many long hours of service by our members across this nation.
My goal for this year is to make sure that no unwarranted bashing of prosecutors goes unchallenged and that we spend a great deal of time reestablishing the positive image of prosecutors. Like the goals begun by my predecessors, it will not be completed during the next year, but we will establish a good foundation for those who follow.
I am humbled by the opportunity to lead the nation’s prosecutors for the next year. I only hope that I serve this great organization as well as those who have brought us this far.
