By Leonard G. Brown
I applaud the April 17 editorial “Averting tragedies” in The Buffalo News recognizing the contribution new legislation signed into law by Gov. Andrew Cuomo will make to wrongful convictions.
The Innocence Project in New York City has been responsible for 187 exonerations in the last 20 years. Applying the law of probability, we can assume that some innocent people have been executed. This legislation is a start, but the real problem is not addressed by this law. The real problem is the unethical, unprofessional, biased and often incompetent arrest, investigation and prosecution of the charged defendant.
The problem manifests itself initially with the agencies having the responsibility for solving crimes. The problem is fully realized with incompetent defense representation.
There is fault enough to go around, from the prosecution to the defense to the bench, but I want to focus on the prosecution by sharing my experience as a prosecutor.
First, the prosecutor’s job is not to win cases. The job is to do justice. To do justice the prosecution must consider every aspect of the case. The evidence has to be evaluated from the perspective of the prosecution and the perspective of the defendant.
All reasonable interpretations of the evidence must be considered. All questions of motive, opportunity and facility to commit the crime should be addressed. Then and only then can the prosecution confidently go forward with a plea offer and, if necessary, trial.
As a prosecutor I made it a practice to give all of the evidence I had in the case to the defense. It was the right thing to do. How could defense counsel properly assess the case and advise his client without all the facts in the case? I made plea offers based on a true assessment of the case and did not try to weigh it down looking for room to negotiate. Finally, I never changed my prosecution stance based on the defense exercising its right to challenge all aspects of the case. At the end of the day my case would be strengthened or be shown to be weak, making for a better plea disposition or trial reparation.
Wrongful convictions don’t happen without one or all of the following: poor police work (or dishonest police behavior); poor prosecution challenges to the investigation results (or incompetent or dishonest assessment of the case evidence); and insufficient consideration of the defense alternative scenario of the facts/evidence.
• Provide better training of prosecutors regarding the enormous power of the office and the fidelity with which they should use that power.
• Remember that the job is to seek justice, not wins. Pursuit of justice includes the defendant, the victim, the Constitution, the state laws and the oath of office.
• Remember what it means to get it wrong. A criminal goes free. An innocent person is wrongfully punished. The community is less safe. The system has failed in its mission.
Leonard G. Brown, J.D., LLM, of Amherst, is a retired attorney with experience as a defense attorney and a prosecutor in Arizona.