Why I Hate Prosecutors

North Carolina prosecutor Mike Nifong has lost his reputation, his job, his law license and even (for one day) his freedom as a result of his decision to charge three Duke lacrosse players with the rape of an "exotic" dancer at a party. Among other things, Nifong is thought to have pursued the case too aggressively, disregarded inconsistent testimony, and withheld exculpatory evidence from the defense.

This is a remarkable and interesting story, but mostly for a fact that is rarely mentioned in the press coverage. For American prosecutors, Nifong's behavior is more or less business as usual. The remarkable thing is not that he went to extensive effort to convict some innocent men, but that he suffered any consequences whatever for doing so.

Though I no longer spend much time daydreaming about what the ideal society would be (the one I help found on an uninhabited Earth-like planet to which I take title with one hundred of my closest friends), I do have a very specific idea of the people we would appoint as prosecutors. They would be the people most reluctant to take the job, slow, careful and deliberate, the presumption of innocence hard-wired into their brains. When they stood up in front of a judge and jury and accused a defendant of a crime, they would do so sadly, reluctantly, with complete and painful awareness of the powers and dangers of their role.

In fact, prosecutors tend to be the opposite personality, sleazy showmen who will bend the facts and the law, exploit every possible gambit of manipulation, press, positioning, dubious eyewitness identification, bad science, paid informants of highly questionable background, arcane evidentiary rules, and just plain mean rhetorical tricks to bury any defendant deeper than his own lawyer can dig him out. Prosecutors not only function as attack dogs, but as dishonest assailants, unconcerned with the rules which are intended to give some measure of protection against the conviction of the innocent.

Prosecutors continually resort to a mirror image of the excuse given by defense lawyers representing the truly culpable: We are just doing our job and if our assertions are wrong, the system will sort it out. But in the comparison between defense attorneys and prosecutors, six of one is truly not a half dozen of the other. Under our system, everyone, once indicted, deserves the most aggressive possible defense. But every case does not warrant indictment, let alone the most aggressive prosecution possible. I would love to be a fly on the wall in the conference room in any prosecutor's office. I believe I would be able to verify that the number of cases in which someone goes to bat for a suspect or a defendant, arguing that this person is innocent, is vanishingly small. More likely, every conversation is about what can be proved. But once you lower your standards, so that every kind of evidence is equal--including dubious confessions made under extreme coercion, that of uncertain, notoriously inaccurate eyewitnesses, or jailhouse informers who claim that the defendant confessed the crime while they shared a cell--the likelihood becomes very great that large numbers of innocent people will be imprisoned. For being in the wrong place at the wrong time, for being strange or even mentally retarded, the wrong race, having a record of other crimes, or just falling into that huge catch-all category--lets admit it exists--of being the "throwaway human being", conveniently at hand when we require false certainty and a public burning.

The work of the Innocence Project, which has exonerated more than 200 people via DNA evidence since being founded in 1992, establishes emphatically that innocent people are jailed every day. Nobody knows how many, but the number who are later exonerated is likely to be a small percentage of the total number of cases. Many cases don't turn on DNA, and in some DNA evidence is no longer available.

The development of accurate DNA testing has given us a window into the real workings of the system. The chemical and biological infallibility of modern DNA testing forces us to confront the weakness or plain fabrication of evidence used to convict these people. The tactics of prosecutors over the past twenty years resisting DNA testing, or arguing that the defendant could have raped the victim even if someone else's DNA turned out to be the sole evidence recovered, clearly show the sleaziness of the profession. There is no good reason to resist DNA testing unless you are unwilling to admit you convicted an innocent individual.

The argument is sometimes made that since these 200 and others were ultimately exonerated, the system is working as it should, and no changes need to be made. This is laughable. Many of these individuals lost decades of their lives in prison, where they suffered unimaginably.

Years ago I wrote about two particularly egregious examples of high public tolerance for disturbing manipulations of the truth by prosecutors. In two unrelated Texas cases, a prosecutor tried each of two defendants separately for firing the same bullet. No-one, at least inside Texas, seemed to find this remarkable. The only way to explain this kind of manifest disregard for truth is the what I call the "Aunt Polly" excuse: when she discovers she has wrongly punished Tom Sawyer for something he didn't do, she remarks that undoubtedly he got away with something else for which he deserved the spanking.

Which is another way of saying that there are "throw away" people in our society.

I would like to live in a society in which prosecutors have a conscience, and understand their job is a heavy moral responsibility. Wouldn't it be nice to have prosecutors who care about being wrong, who can't sleep at night if they think they have convicted the innocent.