Wednesday, April 25, 2007

Should Prosecutors Defer To A Jury's Acquittal


Over at TalkLeft, Jeralyn Merritt describes an acquittal in a rape case, adding,
Prosecutors are not respecting the jury's verdict. They spent a year preparing their case.
It should be no surprise that the prosecutors believed the defendant to be guilty. Although there have been some appalling exceptions, as a general rule prosecutors pursue cases only against people they believe to be guilty. (We'll leave discussions of overcharging for a different day.)

It's counterintuitive to expect a prosecutor, after an acquittal, to shug her shoulders and say, "Oh well, I guess I was wrong." If a prosecutor were to have more than a few moments of such ambivalence during the course of a career, I would be questioning the prosecutor's judgment when it comes to deciding which cases to prosecute. It's not a civil trial, after all, with a "preponderance of the evidence" standard. A prosecutor has to establish that a criminal defendant is guilty beyond a reasonable doubt. If the prosecutor is ambivalent about the evidence, the prosecutor should reconsider the decision to charge the defendant.

I know of cases where I was surprised by a defendant's conviction, given the flimsy weight of the evidence. I also know of cases where I was surprised by acquittal. I don't personally always agree with a jury's verdict, but at the same tie I have yet to encounter a jury, though, which did not take its role very seriously and try to follow the judge's instructions in deciding a case. By virtue of the standard of proof, there should be a lot more errors committed in favor of a defendant than in favor of the prosecution.

I recall a misdemeanor case where a jury came back shortly before 5:00 PM on a Friday and told the judge that they were hopelessly deadlocked. The judge told them that they would have to come back on Monday. They returned to the jury room, within ten minutes reached a verdict, and returned to the courtroom to acquit the defendant. The prosecutor expressed to me that he wished they had been willing to come back on Monday, but that given the circumstances they did the right thing - that if they were going to break their deadlock and come to a verdict within ten minutes, it would be quite worrisome if they had come back with a conviction. That's something apart from agreeing with the verdict, but it's a healthy perspective for a prosecutor to hold.

I believe Jeralyn's perspective is colored by the history of cases where prosecutors have held dogmatically to the view that a defendant is guilty, despite overwhelming evidence of innocence or a wrongful conviction. The tautological explanation is, "If he weren't guilty, I wouldn't have prosecuted him." Yet despite the cases where any reasonable neutral person looking at the situation would be stunned that the prosecutor was still asserting guilt, sometimes that actually is the case. Guilty people get acquitted and, as previosly noted, when our legal system works as designed that should occur significantly more frequently than wrongful conviction.

Perhaps prosecutors should reserve their comments after what they believe to be wrongful acquittals, rather than continuing to assert guilt to the media but, based on what is quoted in the newspaper article, at least they're not bashing the jury. I don't much appreciate the defense lawyer's assertion that the aquittal means "the alleged events never happened," as he knows that's a distortion.

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