"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Thursday, May 14, 2009


I've always been suspicious of attempts to portray prosecutors as unyieldingly in favor of whatever outcome results in convictions, and defense attorneys as unyieldingly in favor of whatever outcome results in acquittal of the accused. It seems like sloppy generalization, and as the Supremes have demonstrated recently, characterizations such as "liberal" and "conservative" don't always neatly apply to appellate judging. Often the divide seems to involve a more libertarian, strict or original constructionist viewpoint vs. a more outcome-oriented philosophy less wedded to the meaning or purpose of a given law.

This divide was recently illustrated in our own Court of Appeals, where, in an en banc opinion of the whole Court, the question arose of what kind of conduct would be sufficient to establish an "overt act" which, together with agressive words, can constitute an "assault" in Virginia law. The question was a rather technical one and the facts made it a very close case, but the interesting aspect of the majority opinion affirming the conviction was that it was authored by arguably the most "liberal" member of the Court, a judge who more readily reverses convictions than his colleagues.

The dissenters argued that the Commonwealth had not met its burden in showing that the defendant's actions rose to the level of an "overt act" and therefore her words alone could not legally constitute an assault.

The dissenters? Two former 20+ year Commonwealth's Attorneys and a new appellate judge who as a trial judge had no problem convicting defendants in closely contested cases.

One trend I've noted in reading reversal opinions from former prosecutors is that there is often a reference to what the trial prosecutor should have done or could have done differently. Indeed, in this case the dissent offers their advice in a footnote that the prosecutor could have elected to prosecute under a different statute entirely!

I've personally noted this habit in my days as Assistant Attorney General, where in a stalking case the three judge panel, in a two-judge majority opinion authored by a long-time former prosecutor, reversed the conviction. (fortunately the en banc Court decided, 9-2, to reverse the panel and affirm the conviction). The former prosecutor-turned appellate judge had many questions during oral argument centered around why the prosecutor did this or that or did not do this or that, and in his dissent in the en banc opinion noted, "the prosecutor failed to produce more than speculative allusions to evidence of either the appellant's specific intent or the victim's specific fear."

In short, one comes away with the impression that sometimes what sticks out to these former elected chief prosecutors is the quality of the trial prosecutor's performance more than the legal sufficiency of what is actually proven.

A poorly prosecuted case may not be a thing of beauty to a former boss-prosecutor, but it may still be enough to get the job done.

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