14.3. Prosecutors in Their Own Words (Baker)

14. Criminal Litigation

14.3. Prosecutors in Their Own Words (Baker)

Chapter Three: Tactics

After all the plea agreements are made—which accounts for 85 to 90 percent of the prosecutor's caseload—he or she is left with, the cases that must be taken to trial. It's not easy to win a jury trial. According to Newman Flanagan, executive director of the National District Attorneys' Association and the president of the American Prosecutors' Research Institute, the conviction rate in jury trials for prosecutors nationwide averages only about 62 percent. "You ask the public what the conviction rate is in jury trials," laughs the former district attorney of Boston, Massachusetts, "and they will say it's upwards from 90 percent. When they hear that 62 percent figure, they go, 'My God! That's outrageous. Half of them are getting away.'

"I tell them, 'Wait a minute, you don't think this defendant is trying his case because we caught him red-handed in the store he robbed, do you? No, this guy is trying his case because there is merit to a potential not-guilty verdict. This guy knows he's got a shot.' "

The defendant and his counsel know "he's got a shot" because of disclosure. Rules of discovery or disclosure in state judicial systems require both the prosecution and the defense to reveal all the evidence and witnesses that will be introduced at trial. Both sides know exactly who will testify, and often what they will say. Both sides know what the jury will see, and when they will see it.

Ah, for the good old days before the majority of the states changed their criminal codes, when there was no discovery, and a prosecutor didn't have to tip his hand by giving up all his evidence and witnesses to the defense counsel before the trial. The writers for the old Perry Mason television programs got it all wrong. In the real world, Perry would have been the ambushed lawyer in the courtroom, sitting at the defense table with his mouth opening and closing like a beached fish as the district attorney, Mr. Burger, called a surprise witness, introduced new evidence, or started a totally unexpected line of questioning that confirmed the guilt of the defendant beyond a reasonable doubt. A former prosecutor who is now on the bench reminisces about that glorious era:

"The defense attorney had to work an awful lot harder to find out anything about his case. He wasn't being handed the prosecutor's file. There were only a couple of sources of information for the defense. It was common then, and almost never happens now, that preliminary hearings were held in criminal cases before the matter even went to the grand jury, so there was a limited amount of discovery that was done there. At least some of the witnesses testified under oath, and there was some indication as to what was going on in the prosecutor's case.

"There were also some defense attorneys who had pretty close friends on the law enforcement agencies—either the police department or the sheriff's department. Those who did a lot of criminal practice would also handle the divorces for the cops and build a relationship with them, so they would get a lot more information than we were willing to give them.

"The greatest tool that was used by both sides in our area was True Detective magazine. One of the local court reporters was paid a penny a word to write his own lurid version of these crimes for the tabloids, and there would be more about our cases in the magazine than there were in either the prosecution or the defense case files. His stories always came out before the trial and had amazing things in them. He would have photographs of the evidence and interviews with the defendants. So we always went out to buy a copy and put it in our briefcases. If you didn't have a copy, then you were incompetent counsel.

"Not having the discovery was a lot of fun for prosecutors. Since you weren't tipping your hand and telling them everything about the case, you were allowed to spring great surprises on these people.

"For instance, one day I had a burglary case. I was talking to the defense attorney the day of trial, and I said, 'I don't understand why this guy's not pleading guilty. We made him a reasonable offer.'

"'Oh no, no, he's totally innocent,' the defense attorney says.

"'I might as well tell you now. I've got fingerprints inside the residence. That places him in there.'

"He walked back to the counsel table, whispered to his client for a while, came back, and said, 'Oh, he can explain those fingerprints. He had visited there on a couple of occasions. The baby-sitter had him over. He knew her and had been in the house in the living room, so his fingerprints being there is no problem.'

"So I reached down in a bag and pulled an item out and threw it on the counsel table. He said, 'What's that?'

"'It's the dryer vent from the basement window that was ripped out. His fingerprints are impressions in the lint of the vent, a set of eight prints. Is that how he visited the baby-sitter every time he went over?' The guy pled guilty then.

"All of a sudden, here comes the evidence in the case, which would come as a terrible shock to them. So those days were fun."

Those days may have been fun, but the results were often unfair and generally inefficient. The crime rate outstripped the ability of the system to handle cases in the 1960s and 1970s. At the same time, taking their lead from the Supreme Court dominated by Justice Earl Warren, the public became aware of the fundamental inequity of trial by ambush. As a result, the majority of the states instituted changes in their criminal and civil codes, making disclosure a part of the defendant's basic rights in trial. The introduction of discovery was perhaps the most momentous change in criminal prosecution in the last hundred years. A longtime defense lawyer, with over thirty years' experience practicing in a primarily rural part of a Southern state, remembers the very first time he filed a motion for discovery:

"The first time I introduced a motion for disclosure, what we call a motion for discovery, was in 1971. Frank Jenkins, the state attorney was at his raging, steaming best back in those days. I presented the motion to him right in front of old Judge Harper, and Frank Jenkins said, 'What is this, some ACLU trick?'

"The judge boomed from the bench, 'No, Frank! These are the new rules of criminal procedure, and you're going to abide by them!' That probably was the death knell for the old-style-fire-and-brimstone political animals. He didn't believe in giving out the names of his witnesses, which meant giving away his case as far as he was concerned. Of course, the end result has been very beneficial, because there are no more surprises. Everybody knows in advance exactly who's going to testify for the state and for the defendant. Prosecutors go out and interview the defendant's witnesses. As far as efficiency in prosecution, there are more pleas now, because it's easier to assess the vulnerability or the strength of the state's case. You don't have to try them all, and they couldn't do that anyway these days. There are just too many cases."

Leveling the playing field afforded prosecutors with a more swift and orderly machine to dispose of the majority of their burgeoning caseloads, but it has also had the effect of winnowing out the no­ brainers. Only the difficult cases tend to come to trial. Defendants don't get away with murder because of a "technicality" in the trial process exploited by amoral defense lawyers. A guilty person may, however, walk away scot-free from his or her crime because law enforcement or the prosecutor have made a mistake. The margin of error that can be accommodated in prosecution is narrowed to a hair's breadth.

Some new, young prosecutors face this challenge with the bean­counting zeal of an IRS auditor crossed with the techno-dependency of a full-blown computer dweeb. The cyber-library of precedents is exhaustively researched. Every question, every motion, every point in closing arguments is written out and virtually read to the court in an attempt to eliminate any risk of an omission or gaffe. Fear of losing has led to an exponential proliferation of experts in the judicial complex—experts on jury selection, expert witnesses of every stripe, professional trial coaches giving expert "How to Prosecute ..." seminars in ever more narrow categories.

Careful preparation, attention to details, a thorough knowledge of the record on similar cases are all essential to a well-prepared prosecution. But in the end, there really is no way to cover all the bases. There is no surefire formula for success, no machine that can churn out a guilty verdict. There are just too many people involved—a minimum of sixteen, not even counting the victim and witnesses—with the infinite variety of behavior, emotion, and ways of thinking that humans are capable of. Outcomes are unpredictable. A good prosecutor needs good instincts more than good computer skills.

A trial is still essentially civic theater, a human drama, and jurors appreciate a talented actor with a full repertoire of familiar guises—the ability to make them comfortable like an old friend, to guide them like a respected father, to fire them to righteous indignation like a good preacher. Age-old rhetorical skills, the ability to think on your feet, the patience to wait quietly rather than jumping in to fill a witness's sudden silence—these are the genius of a good trial lawyer and a winning prosecutor. Their descriptions of successful tactics sound like pointers from a veteran of the Broadway stage on timing, on overplaying an emotional scene, on how to handle hecklers. Winning prosecutors don't talk much about legal precision or worming obscure judicial concepts into a case. For them the point is connecting with other people, inspiring trust, convincing the skeptical, charming the adversarial, befriending the oddball, browbeating the pompous, and giving the guilty enough rope to hang themselves if they are foolhardy enough to take the stand.

Perhaps none of tricks of the trade mentioned in this chapter is more practical than this bit of advice on personal hygiene:

"Very early in my career, I was trying a drug case with a supervising attorney. He is very heavy, a very overweight guy, although a nice guy, and he had a very heavy beard. Being overweight, after six or eight hours in court, he was 'fragrant,' and his beard would start poking out in this thick five o'clock shadow. By the end of the day, he looked like he'd been on a week-long drunk.

"We're trying this case, and we're going to the jury late in the evening. The judge broke for supper about six o'clock, and everybody went to eat. We met again about seven. The defense attorney looked just like he had at nine o'clock that morning, when we started.

"I realized that he must have a duplicate outfit. What he did during the break was go back to his office, shower and shave, change shirts and suits. He was as fresh as when he started. I knew because of the shirt he was wearing in the evening—even though it was the same color and pattern as his soiled shirt, it didn't have a monogram over the pocket. He had completely changed into an identical outfit, and he looked sharp in front of that jury. We looked whipped.

"It's clever, a neat trick. I asked him about it later, and he evaded the question, so I knew I had him. If you have long, serious trials that wear you out, you ought to think about things like that. Instead of going to lunch, run into the damn shower and get yourself back together."

***

My whole attitude as a prosecutor was, you came in and you took over the courtroom. The judge just happened to be sitting there. Normally, I tried not to get too closely involved with the victims in a case. I'd stay as objective as I could while I was trying it, because that made it much easier for me to work and do my job. You've got to be totally objective and professional. The prosecutor must appear before the jury as a fair and unbiased representative of justice, running the entire operation. You should be indoctrinating that jury, telling the jury just what life is going to be like for them. What they can expect. Tell them everything you can possibly tell them. Tell them all the laws. Tell them all the things that the defense attorney wants to tell them about the case as well so that he'll haw nothing to say. And if he does have anything to say, it will be that he's going to agree with all the things that you just said. It works. The defense attorney would not only agree, he would say, "Just as the prosecutor told you ... and as the prosecutor explained to you."

You want to build your case so those people are relying on you. You're the only expert in the court. You're the one who's telling them everything. You're the one who they rely on totally, and you must have them totally sold on that.

But nothing you say is just your opinion. You never say, "This is my opinion; this is what I think." You say, "This is what the facts are going to prove to you, folks. This is what's going to be established." Never personal. Never say, "I think this is a bad man." Don't worry about that. Tell them, "This is what you are going to find about this defendant." It's all their judgment. The prosecutors who get up there and begin saying, "I think and I feel," if there is no objection from the defense, half the time, as a judge now, I'll stop them anyway. "This isn't the way a case is tried, and what you think has nothing to do with it."

***

I had gotten in with a bunch of lawyers in a civil practice. My job was to rain-make, go get clients in. I was in the courtroom less and less. When I got this job as a part-time prosecutor five years ago, I didn't realize how shabby I had gotten as a trial lawyer.

I got over to my first case, and it was a black guy charged with possession of a firearm by a convicted felon. The public defender over there, I thought the guy lied to me. We made a deal, and we went to talk to the judge about it, and this guy changed it—I thought. That really irritated me pretty good, so we set it for trial, and he just ripped my ass. Later, I found a handwritten note in my file, in my handwriting, that laid out the deal more or less as the public defender had stated it for the judge. I had just forgotten. He hadn't led me on.