Sometimes the Other Person Has a Point

This weekend, the New York Times magazine published an article chronicling prosecutors' resistance to changing their minds. It told the story of Juan Rivera, among others, where DNA exonerated both men, but the prosecution chose to go forward anyway, in Rivera's case -- arguing if you can believe it -- that an 11-year-old child was sexually active and must have had sex with someone else before being killed by Mr. Rivera who only had a ninth grade education and a history of psychological problems, whose confession followed 24 hours of questioning resulting in his banging his head on the wall, pulling out a clump of his hair and being shackled, among other things. Despite the exculpatory DNA, he was convicted -- in part because it is very difficult for most people to believe they would confess to something they didn't do. And in large part, because the prosecutor, whose job it is to seek the truth, successfully fought to keep out the troubled and worrisome history of the detective in the case who routinely gets false confessions. In other words, the jury didn't hear the whole story.

I realize it is hard to admit a mistake, but for heaven's sake, there has to be a better way to evaluate a case than fighting simply to save the conviction. Some years ago I represented Steve Shores who was set up by a gang to take the fall for what he had witnessed -- that is he saw two of that gang committing the crime. The case was featured on 60 Minutes, and when the prosecutor I was facing on appeal was asked by 60 Minutes correspondent Steve Kroft whether he was concerned that my client hadn't committed the murder, the prosecutor responded that his job was to "save the conviction." From the transcript aired in 1991 -- the show segment was called "Keep Your Mouth Shut":

"Kroft: And your job is not to look at the facts and say, Yes, this case should be retried' or No, it shouldn't be retried.' Your judge is...
Joseph Clapps (the prosecutor): No, that's right.
Kroft: Your job is strictly to just...
Clapps: To uphold the conviction.
Kroft: ...just uphold the conviction.
Clapps: That's right."

An astounding admission, but unfortunately it evinces an attitude that is quite familiar to those of us who defend. A prosecutor should always be concerned about whether the right thing happened in the case. He or she is charged with the duty to seek justice, not just to win, not just "save the conviction". The late Honorable R. Eugene Pincham, who wrote the dissent in the first Shores appeal told 60 Minutes after being questioned about the state's intractable position "I suggest to you and to your viewing audience that law and order demands justice and fairness and not sending innocent people to the penitentiary." He was right. It is not weak to admit a mistake, it is not strength to find a way to convict despite exonerating DNA evidence even if it means telling a jury that an 11-year-old child had sex with someone else. Real strength requires looking in the mirror.

This "my way or the highway attitude" that is so troublesome. It's a virulent form of inertia. It's as though the prosecution is saying in these exoneration cases that "we, the prosecution" went in this direction -- after this particular person -- and now that there is another way to look at things, well, we just won't. Or can't. It is this unwillingness to listen, to think things over after hearing the other person's point of view that continues to contribute to our intractability in the political arena, to the astonishing rise in hate groups since the election of President Obama and to the general distrust of our justice and other systems.

It doesn't hurt to listen. In fact, it helps. Recently I had a plea discussion on a murder case of mine with a prosecutor. I was trying to talk her into a charge reduction, and/or a low (relatively speaking of course) sentence. She didn't agree that the charge should be reduced, and explained why. She was right. I told her so, and she made us a very reasonable offer. Maybe she would have done that in any case, but I think, that maybe, just maybe, it was because I told her she had a point. She listened to me as well. She came to see the pathos in the case and my client's miserable life, and I could see her legal stance. She had a point and so did I.