Sunday, September 25, 2011

On Calling Them Like You See Them

Sometimes it is very easy to be swept away by emotion. Sometimes it is very easy to make decisions based on desire rather than evidence. As a prosecutor, you can't make decisions based on what ought to be. You must base them on what is. When those who are swept up in the emotion of an event clamor for a certain outcome, you must have the gumption to make the right decision, not the popular one. Even though no one else will admit the Emperor has no clothes, you must speak the naked truth as you see it.

This means you will file charges against popular people and decline to file charges against unpopular people. This means that when you charge, you will be criticized for charging too much or too little. Regardless of political expediency, you must do what is right.

Thursday, September 22, 2011

On Troy Davis's Execution

Several months ago, a friend tried to interest me in advocating for Troy Davis as being wrongfully convicted of murder. I got some information from my friend and did a little research on my own. Nothing about the case indicated to me that Davis was innocent. The postconviction motion alleged that seven witnesses had recanted their testimony, and a hearing was held to allow proper proof that the witnesses recanted. At the hearing, you would expect that those seven witnesses would have marched in succession to the stand and stated under oath that they were wrong when they testified to facts which incriminated Davis. None of the witnesses testified. The defense called no witnesses at all.

Articles reporting this development suggested Davis' attorney was incompetent for not calling the witnesses. It seemed obvious to me what was going on. Davis' attorney didn't call the witnesses because they would not recant their testimony.

The media seems to have confused allegations with proof. The motion and supporting affidavits made an allegation that the witnesses recanted, but they were not sufficient judicial proof that the witnesses recanted. The motion simply formed the basis for a hearing to determine whether the witnesses recanted. At the hearing, the defense failed to prove the allegations in the motion. No recantation. No evidence of innocence. Case closed.

I tried to point out to my friend that motions aren't proof and that the burden of proof at this stage of the proceedings was on the defendant, not the state. The defense failed to carry their burden, and the law moved forward.

Was it possible that Davis was innocent? In human affairs, there is always room for doubt. Almost nothing can be proven beyond all doubt.

Was Davis proven guilty beyond a reasonable doubt? It certainly appears that he was. That is the standard of proof which we have lived by for over two centuries, and it was met in this case.

Was it lawful to execute Davis? Yes.

Was it just to execute Davis? You could make many strong arguments against the imposition of the death penalty on anyone condemned to death, but there was no basis for making an argument that Davis should be spared because he was innocent.

Thursday, September 15, 2011

Why Don't You Write a Book? / Why in the World Did You Write that Book??

Reflections on "The Last Murder: The Investigation, Prosecution, and Execution of Ted Bundy"

Prosecutors accumulate wealth, but not in the form of money. They accumulate a wealth of stories, and when they get together, they like to swap those stories. Over the years, I have told the stories associated with the prosecution of Ted Bundy hundreds, if not thousands, of times. Almost invariably, someone would ask me "Why don't you write a book?"

I gave any number of reasons for not writing: I'm not a writer. I'm too busy. I [insert rationale of your choice]. And each of those reasons had some weight. The weightiest reason, however, was simply that it was too painful. Telling anecdotes about amusing incidents during the investigation and trial was one thing. Confronting the pathos of the crime was something else entirely.

Finally, after the passage of three decades, I decided to write the book. Enough time had passed that the bad memories weren't as painful--or so I thought. As I soon realized, the memories were still painful, I just hadn't dwelt on them in a very long time. Some chapters of the book were so painful to write that I had to put away the project and take long breaks. Inevitably, after the passage of weeks or months, I would go back to writing. Some of the men and women involved in the case who have read the book tell me they had similar experiences reading it--they would have to stop and take breaks from the awful memories before continuing to read.

I continued to write, and I began to shop the book to various academic publishers. Trying to get a publisher to agree to print your book can be tedious, but I kept at it. Then came the day when Praeger said they would publish the book if I could hold it under 90,000 words including endnotes and bibliography. When I got the news, I had written 120,000 words (not counting endnotes and bibliography) and still had three chapters to go. Those final three chapters collapsed into one, and I took a red pencil to the manuscript, mercilessly cutting as much as I could and still tell a coherent story. The book was still too long. I went back to Praeger and explained my difficulty, and they said they'd accept a longer book, but they'd have to charge $10.00 more per copy if I exceeded 100,000 words. I suggested dropping the endnotes and bibliography as a method of cost cutting, but they vetoed the omission of endnotes. I did get them to agree to omit the bibliography by promising to use long form endnotes. Finally, I got the wordcount under 100,000 and the cost of the book under $50.00. I had to leave out a number of interesting and informative incidents, but I got the story told with brevity and clarity.

When news got around that the book was going to be published, something unexpected happened. People quit asking me why didn't I write a book and began asking "Why in the world did you write that book?" "What can you add to a story that has been so well told by professional writers?" "You're just in it to make a fast buck, aren't you?" They asked other questions of a similar nature, but those were the three main ones. I'd like to answer them in reverse order.

You're just in it to make a fast buck, aren't you? No. The time to make money off of a book about a crime is right after it happens, when the story is still current in the media. If money were the object, I would have written the book 25 years ago; I would have suggested the story to a lurid true crime publisher, not an academic publisher; I would have talked Praeger into publishing the 150,000 word book that I intended to write.

What can you add to a story that has been so well told by professional writers? The professional writers all told the story of the "glamorous" celebrity slayer and media figure, Theodore Robert Bundy. The least "glamorous" of his killings was his last one, and the professional writers gave it short shrift in their stories about the "charismatic" serial killer. My story isn't about Bundy. My story is about an unglamorous investigative and prosecutive effort to seek justice for one innocent victim of a brutal slaying. It's about a group of unsung heroes and heroines in law enforcement who worked tirelessly to rid the world of a cancer.

Why in the world did you write that book? My main reasons were: (1). It's a good story. Even a poor storyteller would have a hard time making it a bad story. (2). It's an educational story. The best way to learn from mistakes is to learn from the mistakes of others. We made a lot of mistakes in the investigation and prosecution, and I have tried to give a non-judgmental documentation of those mistakes so that investigators and prosecutors reading the book will be able to avoid those mistakes in the future. (3). I also thought somebody ought to do something to demythologize Ted Bundy. Judge Cowart was right on point when he said Bundy was a "miserable waste of humanity." In the book, I try to emphasize those facts which bolster Cowart's assessment.

Wednesday, September 14, 2011

The Four Questions Every Prosecutor Should Ask

Being a prosecutor is about making decisions--life changing decisions. That young man who got arrested last night has his fate in your hands. Will he be able to enlist in the military? Can he go to college and pursue a profession? Or is he going to spend the next few years as a guest of the state? You will have a huge say in how he spends the rest of his life. It's not within us to make perfect decisions every time, but we can always strive to make the best possible decisions under the circumstances.

When you look at that file, ask yourself four questions:
1. Has a crime been committed? Not every wrong is a crime.
2. Did the defendant commit it? Never, ever rubberstamp the decisions of others. Perform your own evaluation of the available evidence.
3. Can you prove it? There is a wide gap between knowing someone committed a crime and being able to prove it beyond a reasonable doubt. You should never file a case unless you have a reasonable prospect of conviction.
4. Is the case worthy of prosecution? Although a defendant may be guilty of a breach of the law, and although you have a reasonable prospect of convicting him, sometimes justice is better served if you decline to prosecute. Every unconsented touching is a battery, but it would be silly to prosecute every person who ever laid his hands on another without first getting a written consent form.

There are other questions you should ask before filing charges, but these four are foundational.