The Conscience and Culture of a Prosecutor New York City Bar Association

June 20, 2012 | New York, NY

I am grateful for the invitation to speak once again to members of the New York City Bar Association, this time on a topic that has developed and tempered in light of my experience in two and one-half years as District Attorney.

As prosecutors, we have the opportunity to make a day-to-day impact on the lives of everyday citizens is unparalleled in the profession.  But our decision-making  is not bound by the single-minded wishes of a particular client. Instead, in the familiar words of Justice George Sutherland in Berger v. United States, our “interest . . . in a criminal prosecution is not that [we] win a case, but that justice shall be done.”

But what does it mean to say that justice has been done in an individual case? I believe that prosecutors should be among the most skeptical actors in the criminal justice system about what that concept means and how our decision-making process gets us there. Otherwise, we risk the phrase “doing justice” devolving into an empty shibboleth. I have always believed this, but my perspective is informed by my experience in the 20 years after I left the DA’s office in the late 1980’s, during which time I practiced criminal defense in federal and state courts around the country.

As a prosecutor, I am committed to guarding public safety zealously; but my experience as a defense lawyer and, more generally, as a member of the Bar, has shaped my views about how to define the culture and conscience of a prosecutor’s office as the District Attorney.

And that is what I would like to talk about today.

Every DA’s office has its legends.  When I joined the office in 1982, the Wyllie-Hoffert murder case, was one.  The case had been prosecuted by District Attorney Frank Hogan, nearly twenty years earlier, in 1963. 

It was a notorious and brutal murder.  Roommates Janice Wylie, a researcher at Newsweek magazine, and a school teacher Emily Hoffert, were found stabbed to death in their apartment on East 88th Street in Manhattan.  It was the early 60s and young professional women – called “career girls” at the time, were coming to New York City in large numbers.  The physical assault was savage.  There was evidence that Wylie had been sexually assaulted.  The bodies were discovered by their roommate, returning home one evening.  She knew immediately ― perhaps it was the unnatural quiet in the apartment ― that something was wrong. As she walked further into the apartment, she found her murdered roommates ― stabbed collectively more than 60 times.  This was every parents’ nightmare, and the public uproar over the murder was intense.

The crime went unsolved for months, until the police arrested a man in Brooklyn on an unrelated case, but who in the process of that arrest gave a detailed confession to the crime.  His name was George Whitmore.  He was African-American, and unemployed.

Frank Hogan filed an indictment against George Whitmore for the crimes.  But after indictment, Hogan began to have doubts about the confession.  It turned out, Mr. Whitmore had a mental disability.  Despite having a defendant and a confession in a high pressure case, Hogan launched a far-reaching re-investigation of the case, an investigation that led to the defendant’s exoneration, and dismissal of the indictment in 1965.

The point of the story?  When I arrived as an Assistant DA, young attorneys were told that the Wyllie-Hoffert exoneration represented the highest traditions of the office; and, in fact, even before we joined the office, we were told in the office’s recruiting materials and throughout the interview process that the job of an assistant district attorney was not simply to seek convictions, but to seek justice.

When I returned as the District Attorney, I intended to continue and build upon the traditions of fairness and integrity that have defined and distinguished the office.  I would like to share with you how ― today ― we face the hard questions of conviction integrity, legal ethics, prosecutorial discretion, and fairness to the accused.

Although my office is different from most in some regards – the exceedingly high volume of cases we handle, and the variety of matters we prosecute, including murders, sex crimes, financial crimes and cyber crimes – the core questions we face in defining our prosecutorial conscience and culture are much the same as those faced by any prosecutor’s office.

What does it take for a prosecutor to go forward with a case? Is it different for the initial charging decision versus the decision to take a case to a jury? When does justice require dismissing a case? What is the interplay between a jury verdict of guilty and a credible post-conviction claim of innocence?

The answers to these questions are not found in the law, or even our ethics rules. Instead, they are defined by values of conscience and culture, and a healthy skepticism about what it means to do justice in any given case.

But as you all know, more and more in the 21st century, our prosecutorial choices are informed by science.  Indeed, any discussion about the role of the modern prosecutor’s office cannot proceed very far without addressing the revolution wrought by the extraordinary reliability of DNA evidence, and more broadly, the rise of the exoneration movement.  DNA exonerations have had an impact that reaches far beyond giving a falsely convicted defendant his or her freedom.  They have shown all of us that an innocent person can land in prison, despite the best efforts of a prosecutor, a judge, and a jury.

The stakes here are obviously high – for innocent defendants wrongfully convicted; for victims, who want finality in the face of a conviction; and for the legitimacy of the criminal justice system as a whole.  For this reason, I believe that prosecutors must join other leaders in this arena to examine closely what can lead to wrongful convictions, and to take steps to minimize the chance they occur.

My answer was to establish in 2010 the Conviction Integrity Program within our office, a step unprecedented for a prosecutor’s office in New York State at that time, and with only a few previous efforts having been made around the country. It is led by a senior assistant district attorney, Bonnie Sard, who serves as Chief of the Conviction Integrity Program, and who is here tonight. Our program has two main parts. First, with respect to what we sometimes call the “front-end” of the process, after much study and evaluation, we put in place new policies, procedures and training to further guard against unjust prosecutions.

And second, on what we call the “back end,” we instituted a program to review convictions – and, occasionally, pending prosecutions – in which the defense has raised a claim of actual innocence.

With respect to the front end – preventing wrongful charging decisions and convictions – we began by assembling teams of some of our most thoughtful and experienced assistant district attorneys, as well as a panel of outside advisors ― including Barry Scheck, former U.S. Attorney Zachary Carter, retired New York Court of Appeals Judge Howard Levine and Fordham Law Professor Bruce Green.

We asked them to address particular issues identified in nationwide analyses of exoneration cases.  The teams addressed areas such as eyewitness identification, use of jailhouse informants, interrogation and confessions, evaluation of police testimony, and preservation and disclosure of evidence that is favorable to the defendant. Two different groups – inside and outside experts – worked together to examine best practices in areas of documented concern.

Among other things, each team produced a series of uniform questions to systematize our initial analysis of cases.  For instance, in eyewitness testimony case, particularly those involving one witness, our guidelines now explicitly direct the assistant district attorney, at the outset of a case, to analyze the witness’s opportunity to view the perpetrator during the crime; it directs the prosecutor to preserve the witness’ first written or oral description of the perpetrator, and to investigate in detail any photographic or corporeal identification of the defendant. The guidelines encourage the assistant to find independent evidence, such as cellphone tower records, that might place the accused at the scene of the crime, or that might establish an alibi.

Similar directives guide assistants in determining whether they are fulfilling their obligations to disclose favorable information to the defense. Most bureau supervisors now review the answers to these questions with ADAs at a fixed point in the life of the case, for example, when the case is adjourned for trial.

This front-end of our Conviction Integrity Program is not limited to checklists and paperwork.  We have added a “conviction integrity” component to each of our major training sessions. So, for example, young assistants receiving training on grand jury practice  or the handling of domestic violence cases will be trained on ethical issues relating to specific practice areas.

Another practice that we have established, which has been extremely successful, is to hold “round tables” for major or complex cases. Before presenting these cases to the Grand Jury, homicides and other major cases frequently are presented to a small group of senior ADAs, who thoroughly vet the facts and investigative steps in the case.

The idea is simple: reduce the risk of prosecuting the wrong person, and strengthen the cases where we believe we have identified the actual perpetrator.

Do these new protocols work?  I certainly believe so, although one challenge thus far has been to devise a metric to answer that question with data.  But one thing is already clear – the very process of examining our procedures, of trying to articulate and systematize our best thinking, and to put it in front of our assistants in a synthesized form, has been critical to the evolution of the conscience and culture of our office.  It is part of the way in which we transmit our values to new prosecutors.  It reminds them at a very practical level of what are otherwise just high-minded ideals, that our duty is to do what is right in every case, wherever that leads.

But careful prosecutors must go even further to satisfy themselves that they are doing right; because we know that even conscientious prosecutors sometimes get it wrong. One lesson learned from the exoneration movement is that relatively few unjust convictions are the result of blatant prosecutorial misconduct. Although those cases make headlines and spark public outrage, they mask a more complicated challenge.  Far more wrongful convictions, I would warrant, come from well-intentioned prosecutors who failed to investigate a lead, or were insufficiently skeptical of a witness’s testimony.

And so, when we speak of the conscience and culture of a prosecutor’s office, we have learned much from our examination of best practices, and from the work of the exoneration movement. We believe that a healthy skepticism, good, sound procedures, and an appreciation of the history of what has gone wrong at times in the past, are the prosecutor’s best protections against the possibility of convicting the innocent, and the surest path to ensuring the integrity of convictions.

But what about concrete cases, in which, typically, a defendant who has been convicted raises a new claim of actual innocence?  This is what we call the back-end of our Conviction Integrity Program.

We have put in place a procedure by which every post-conviction claim of actual innocence we receive is also standardized, beginning with a case review by the Chief of the Conviction Integrity Program, who reports directly to me.  If she believes there is no miscarriage of justice, nor otherwise any need for further investigation, she forwards her conclusion to me with a recommendation that no further action be taken.  I review it, speak with her, and I may or may not agree.

If she believes that a reinvestigation is appropriate, a decision I do not second-guess, we reassign the case to an assistant district attorney other than the one who originally handled the case.  This reassignment carries with it absolutely no implication that the original assistant committed any impropriety whatsoever.  One reason we established this protocol regarding reassignment was precisely so that no one could read into the reassignment any criticism of the original prosecutor. 

The new attorney will conduct a thorough, de novo reinvestigation of the case, and will report his or her conclusions and recommendations to our inside Conviction Integrity Panel, consisting of the dozen or so senior assistant district attorneys that also worked on our front-end protocols.  Together with the Chief of the Conviction Integrity Program, that panel makes a recommendation that ultimately is presented to me.

When we first instituted our Conviction Integrity Program, it was this reinvestigation component that gave us the most concern.  We worried, first, that some assistants might chafe at the prospect of their colleagues looking over their shoulders, to investigate claims of innocence and impropriety ― claims that, frankly, in most cases prove to be frivolous.  But we worried, too, about whether an assistant would feel inhibited in conducting a full re-investigation of the work of someone who may be a longtime friend and trusted colleague. I’m happy to report that the office culture is committed to this endeavor such that these fears have not materialized.

Let me describe a typical re-investigation. It begins by reviewing the evidence presented at trial. Then, we locate witnesses for interview and re-interview, wherever they may be, with a particular eye toward trying to identify any witnesses who might have been overlooked in the original investigation, or who might only have come to light post-verdict. We seek out any new sources of physical or documentary evidence or forensic evidence.  We offer to meet with the defendant and his or her attorney for an interview.

But that description of the process leaves one big question unanswered: after we have re-investigated, after we’ve assembled all this evidence, how do we decide whether or not to vacate the conviction? 

That question is so daunting that the temptation is to invoke the lawyer’s default answer:  we decide on a case-by-case basis. I will try to resist that temptation.

Our Conviction Integrity Program has been in place long enough that some general principles have emerged ― principles which can guide our work going forward, and which I can share with you.

The first general observation is one that surprised us.  Of all the claims of innocence that have been presented to our Conviction Integrity Program since it began more than 2 years ago, not a single claim – zero – could be resolved, one way or the other, by DNA evidence.  Either no DNA evidence existed, or the available DNA evidence was not dispositive of guilt or innocence.

This makes our determination more difficult, but in no way diminishes its importance.  We do not stop our analysis simply because there is no single, crucial, dispositive piece of evidence.  Indeed, after a great deal of internal debate, we decided that not even a plea of guilty will preclude full consideration of a claim of actual innocence, if there is a plausible reason for the plea of guilty and an evidentiary claim that seems worthy of investigation.

That leads us to the question of what weight to accord to a jury verdict of guilty.  I do not pretend that we have devised a simple formula in this regard.  I will say this:  if in reviewing a case, we have access to critical, newly discovered evidence the jury did not see, or if we have found some fundamental defect in the trial itself that suggests that the jury did not have a fair opportunity to evaluate the evidence, then we need to look at the verdict with fresh eyes and ask whether, in fairness, it can stand.  When we doubt that it can, we should, and we have, moved to vacate the conviction. 

But when we are looking at essentially the same evidence the jury saw, and where the trial seems to us to have been conducted in a fair and competent manner, we are very strongly disinclined to vacate a jury verdict of guilty, even if we feel, in hindsight, that we might have reached a different verdict.

The reality that we have encountered in our Conviction Integrity Program – in which virtually no case is solved by dispositive scientific evidence – has led my staff and me to reexamine first principles that guide our culture and conscience as a prosecuting office. Let me give you a couple of examples that illustrate that process.

Among the most difficult cases that prosecutors confront are those in which a witness’s credibility is so compromised that it becomes difficult to draw a reliable conclusion, one way or the other, regarding whether a crime has been committed.  Even in this era of seemingly ubiquitous security cameras, cellphone videos, and trace forensic evidence, there are still many cases that reduce to a contest of credibility, or that rely on the abilities of human perception, with little to corroborate or contradict either account.  What does conscience command in such cases?  What is our yardstick?

Last summer, in determining that we should dismiss charges against Dominque Strauss-Kahn, I stated my belief that we should not proceed to trial with a case  unless we ― as prosecutors ― are convinced ourselves beyond a reasonable doubt of the defendant’s guilt.

Now, this is not a truism.  Under New York’s legal ethics rules, and those applicable in almost all other jurisdictions, charges may be brought against a defendant and a defendant tried, if they are supported by probable cause. Under our ethics rules and law, it is perfectly legal for a prosecutor to say, “I will not substitute my judgment for that of a jury; if there is probable cause to bring a case to trial, I will do so and let a jury decide.”

But we approach this process differently. In the initial charging decision, probable cause is of course sufficient to initiate and proceed with a prosecution. But before proceeding to trial, I believe prosecutors in our office should be personally convinced beyond a reasonable doubt of the defendant’s guilt.  Put simply, if we are not convinced beyond a reasonable doubt that the defendant is guilty, how can we ask a jury to find him guilty?

Now, an investigation may uncover outrageous immorality and mounds of suspicion; but when investigative work up until trial fails to produce convincing evidence of guilt, we should not proceed – regardless of any public pressure to move ahead. Not surprisingly, such cases comprise one of the most difficult parts of our work.  Nonetheless, making those tough decisions defines the conscience and culture of a prosecutor more than any conviction reported on the front page of a newspaper.

On the other hand, I believe we must be fearless in moving forward with cases that we believe in, even if the prosecution is unpopular or even unlikely to result in a conviction.  Here, conscience tells us we must go forward.

Many are the times prosecutors enter a courtroom knowing the odds are stacked against them as they move a case to trial.  Perhaps it is a case of gang violence in which the victims and their families are terrified of testifying, or an organized crime case where the victims are as unsavory as the perpetrators.

Or perhaps it is like one that two of my assistants handled last year.  One afternoon, an attendant in a nursing home in upper Manhattan walked into a patient room and saw a male attendant on the bed of a stroke survivor.  The male attendant had his pants down, and was sexually assaulting the patient.  But, the case was a very difficult one.  The victim ― a senior ― was partially paralyzed and unable to speak.  The attendant who witnessed this crime was so unnerved that she did not report it for twenty-four hours.  When she did, the male attendant denied everything.  By then, there was no physical evidence to confirm the witness’ story.  In fact, the stroke survivor was so terrified of reprisal that, when she was examined at the hospital, she indicated nothing had happened.

Attorneys in our sex crimes unit reviewed the evidence, and went to the nursing home to meet with the victim of the crime. They became convinced of the defendant’s guilt, and they believed they could prove the case at trial.  And so they sought an indictment, refused to plea bargain, and moved the case to trial. At trial, the victim ― speechless by virtue of her disability ― testified by pointing to letters and words on a board.  The jury retired to deliberate, and with surprisingly few interruptions for re-reading of testimony or further instruction, returned its verdict:  the jury found the defendant guilty.

I mention these cases because I think they illustrate, more eloquently than my words ever can, the conscience and culture of our prosecutor’s office and many around the country.  One the one hand, we need to be fierce advocates and protect the victims of crime, sometimes against great odds. Yet prosecutors have a broader set of unique obligations to the community, the victim and the defendant.  So, we must exercise our power responsibly, and with a sense of humility.  And that may require us to dismiss charges, no matter the public outrage and promise to proceed.

This, I believe, is justice under anyone’s definition. Or, in Justice Sutherland’s words, this view fulfills our “twofold aim . . . that guilt should not escape or innocence suffer.” Ultimately, what doing justice means is entrusted to our sound conscience: We try to do what we believe is right, in every case and in all our decisions. 

These are the values I learned in the DA’s office more than a generation ago; the values I sought in a prosecutor’s office when I represented a criminal defendant; the values I believe we all share as stewards of the criminal justice system; and the values that I hope to carry with me in the office as I go forward as the District Attorney.
     


###