Prosecutor: “I believe my officers.” But they are not the prosecutor’s officers
Recently, I talked to a prosecutor about the impossibly superhuman olfactory ability that a police officer had to possess in order to detect the odor of under a gram of unsmoked marijuana in my client’s car console, after the officer stopped my client’s car for a traffic violation. My goal was to get the case dismissed outright, or else to get the case inactivated or dismissed later on in exchange for my client’s doing more community service, clean drug tests and drug education.
The prosecutor responded: "I believe my officers." The prosecutor seemed to be talking about all police officers that he deals with, not just the officers involved in my client’s case (which only had one witness that was needed to testify). "My officers"? Prosecutors are public servants, obligated independently to assess the witnesses on both sides and evidence in their case. "The duty of the prosecutor is to seek justice, not merely to convict," confirm the American Bar Association standards for prosecutors. Prosecutors do not seek justice when they blindly believe prosecution witnesses.
Plenty of prosecutors have told me that they are happy for the factfinder — whether the judge or jury — to decide where the truth lies in the case, sometimes even putting on an assault trial where they are prosecuting both the cross-complaining purported victims and defendants in assault cases. I reply that doing so is an injustice, and that judges and jurors are not soothsayers who have a crystal ball into past events and the veracity of witnesses, and, being drawn from the general population, plenty of jurors come to court without leaving their preconceived notions and prejudices at the door. Witness all the death row inmates getting exonerated by DNA evidence if you have any doubts about that.
Responsible for seeking justice, one of the duties of a prosecutor is to assess the veracity of the evidence and witnesses on all sides in the process of deciding how to proceed with the prosecution. However, too many prosecutors decline to speak to defense witnesses who are in court to confirm that my client is not culpable, or is less culpable than is alleged in the prosecution. Praised be the prosecutors who genuinely are interested in fully assessing the evidence and witnesses on all sides. Unfortunately, even the latter type of prosecutors are often saddled with such heavy caseloads that they fall short of doing a sufficiently full assessment of the witnesses and evidence. (Of course, their load will be lightened once lawmakers follow my recipe for shrinking – and making much less expensive — the criminal justice system by legalizing marijuana, prostitution and gambling; heavily decriminalizing all other drugs; eliminating mandatory minimum sentencing and the death penalty; and eliminating per se blood alcohol content rules in the drunk driving laws.
I wish for the prosecutors and prosecution office employees who are reading today’s blog entry to circulate it, including my following blog entries discussing the frequent lying by police officers.
– Montgomery County, Maryland, police officer lies that a drunk driving defendant was behind the wheel. Security video proves the officer’s perjury.