Pubdate: Wed, 28 Jun 2000 Source: Houston Chronicle (TX) Copyright: 2000 Houston Chronicle Contact: Viewpoints Editor, P.O. Box 4260 Houston, Texas 77210-4260 Fax: (713) 220-3575 Website: http://www.chron.com/ Forum: http://www.chron.com/content/hcitalk/index.html Author: Thom Marshall Related: http://www.mapinc.org/drugnews/v00/n865/a06.html IN THE DEFENSE OF PROSECUTORS CONTINUING the ongoing debate and discussion about our criminal justice system, today we consider a defense of prosecutors. Several of them responded to the recent visit here with a lawyer who resigned as an assistant DA to become a defense attorney. They disagreed with the contention that most prosecutors believe justice to be synonymous with winning convictions. While many messages made similar points, I liked David Newell's best. Newell works for a prosecutor's office in the Houston area, but asked me not to say which one because he is expressing his personal opinion and not speaking for his entire office. That lawyer who changed sides said the decision came after a fellow prosecutor quipped that convicting guilty people is easy; the real challenge is in convicting someone who is innocent. Newell said he heard that same joke in a movie, but it inspired him to do everything possible to disprove that image of prosecutors. More than convictions "There is so much more to being a prosecutor than simply going to trial or getting a conviction," he wrote. "What you do not read about in the papers are the numerous times that prosecutors have to dismiss cases where people have been physically abused, but there is not enough evidence to link a particular defendant to the crime." Newell said radio news doesn't broadcast "all the times that prosecutors have to explain to the victims of burglary that 'just because someone said he entered your house does not mean we can actually prove in court that he did.' " And TV cameras don't record when "prosecutors have to beg victims of sexual assault to testify against their attackers" because people do not want to testify about anything because of the "humiliating cross-examination designed to obscure rather than uncover the truth." "But that's not to say that prosecutors completely ignore the rights of defendants either," Newell said, telling of a fellow prosecutor who recently opted for deferred adjudication in a shoplifting case so that the teen-age defendant would not have a conviction following her to college. "Every time we are in court," Newell said, "we cut sentences on pleas if defendants show us that they have jobs; we amend probation numerous times so that they can have more than one chance to complete it; we dismiss cases upon the payment of restitution; we rarely, RARELY see more than half of the maximum fine or jail time." Regarding the drug war, Newell said people in the area's poorer neighborhoods "often call upon the DA's office to vigorously prosecute substance-abuse crimes, even as affluent bystanders speaking from a position of luxurious indignation offer vicious criticism for such enforcement. I don't know which side of the argument is the correct or morally just one. What I do know is that the prosecutor and the police officer get caught in the cross fire of this debate every day." Foes of rich defendants He agreed that money does make a difference in the courtroom arena, but said, "you will not find a more zealous opponent of this fact than the prosecutor. Prosecutors hate wealthy defendants and are always ready to go to court to fight them. . . . More prosecutors rise to these occasions than bow to intimidation because these defendants are the ones who figure that with all their money they can 'beat the system.' " Prosecutors get battered in the media, Newell said, because "America loves the underdog" and it is "easy to romanticize the lone defense attorney always struggling to save one person at a time." But while it is "up to the defense attorney to use any means necessary to secure an acquittal," he said, "the prosecutor represents the state of Texas and is required not to seek a conviction, but to see that justice is done (that's actually a statutory provision)." Prosecutors are obligated to turn over evidence that could help the defendant, he said. A prosecutor has limited rights to appeal, while the defense attorney can appeal at state and federal levels. "Most importantly," he said, prosecutors are held to a higher burden of proof. Newell said there are "many good people who become prosecutors because they want to do the right thing, because they believe that the best way to ensure that 'the system' is fair is to work within it rather than tear it down, and because they still believe in justice for all." - --- MAP posted-by: Jo-D