May-June 2012

Prosecuting under pressure

William Lee Hon

Criminal District Attorney in Polk County

Several weeks ago I was doing an interview with a reporter who was inquiring about some of the very public innocence-related issues which have been circulating in the media of late. During the course of our discussion, the reporter asked me if I’d ever felt “pressure” to prosecute a case. In response, I told her there were different kinds of pressure associated with every case I’ve handled. I’m pretty sure she was referring to a pressure to obtain a conviction or certain sentence on a particular case, but in any event, after speaking with her I began thinking about the different types of pressure prosecutors encounter daily in the performance of their jobs. The more I thought about it, the more I began to wonder if there are any other occupations where an individual is under as many different and conflicting kinds of pressure as that of a prosecuting attorney. We as prosecutors have to be all things to many different people we encounter in our jobs. On top of that, we are one of very few professions not afforded the grace of making a mistake. In other words, the consequences of our decisions and how we perform our jobs can literally have lifelong consequences for multiple people and interests associated with the cases we encounter. We pretty much have to bat a thousand.

    In most criminal prosecutions, the first source of pressure the prosecutor might feel may come from law enforcement. In this circumstance, a case will be presented by a department or an officer who has put time and effort in an investigation and filing a charge. In many instances, the officer will have very strong opinions about the quality of his work and the correctness of his decision-making. When the case is handed over to the prosecuting attorney, there is frequently a subtle (and sometimes not so subtle) expectation that a conviction will be obtained and an appropriate sentence achieved. In the face of this expectation or pressure, it is nonetheless the job of the prosecuting attorney to remain objective and open-minded as to the ultimate merits of the case and, where warranted, what a fair punishment might be. In my experience, it is in this circumstance where the views of the officer and the views of the prosecutor might sometimes diverge. How the prosecutor handles such conflicts can have very profound implications upon the relationship between the prosecutor and the officer as well as the district attorney’s office and the law enforcement agency both now and in the future.

    The next source of possible pressure on a prosecutor is from victims or their families. Of course, this pressure might not typically exist in drug cases or DWIs. However, in those cases where a person was physically harmed or killed or has suffered some type of property or financial loss as a result of criminal conduct, these people often have very strong feelings about how a case should turn out. In my experience, the most emotionally challenging cases I’ve handled have been those with child victims and, of course, where someone has been killed. Sometimes victims express this pressure outright by saying what they want or expect, while other times, the pressure comes from some internal sense of obligation on the part of the prosecutor. (I think it’s only natural for the prosecutor to want to ease the suffering of victims and make them whole.) The way our system of justice is designed, victims must rely on the prosecutor to obtain justice on their behalf—they are essentially helpless in many respects, yet their hearts are tied up in the outcome of the case. I can’t tell you how many cases I’ve tried where the victims or their families have been on the front row during the trial or as I’ve given my closing argument to the jury. Ladies and gentlemen, that is pressure. And yet at the same time, the prosecutor cannot let that very natural desire to help victims override his or her independent judgment or objectivity with the case. Short of becoming absolutely heartless, this is one of the hardest types of pressure for a prosecutor to manage.

    Beyond the pressure from law enforcement and victims is the not-infrequent pressure that the prosecutor feels from the public to obtain a particular result. This type of pressure is not so prevalent in your daily run-of-the-mill criminal cases, but every now and then, a crime in your community will wind up all over the front page of the local newspaper or in the media. Public opinion will be very much in favor of a particular outcome. Unfortunately, this public sentiment will often be based upon inadequate or unreliable facts. Due to ethical constraints, there is not much prosecutors or law enforcement can do to change or counter public opinion. As long as the prosecutor and public are on the same page and the prosecutor has the wind at his back, there’s not much of a problem here—but what happens when the prosecutor’s obligation to see that justice is done conflicts with the prevailing public sentiment? I look at Mike Nifong in the Duke University lacrosse case as a perfect example of a situation where a prosecutor apparently allowed himself to make decisions based upon the intensity of the media glare rather than an overriding sense of fairness or objectivity—and we all see how that turned out: Nifong was removed from office and disbarred. At the end of the day, the prosecutor has to be able to step back from the spotlight and cameras and make very important decisions based upon credible evidence and not what people who have less than the entire picture expect. Never has that old adage “to thine own self be true” been more meaningful than for the prosecutor who has to handle a high-profile, high-publicity case.

    To a degree, an individual prosecutor may also feel pressure due to the size and extent of her caseload. I know this varies from office to office, but I’m not aware of any prosecutors in our area, at least, who are bored from lack of work. Rightly or wrongly, prosecutors have to be productive and move cases along. This doesn’t necessarily mean that prosecutors are or should be judged by their win-loss ratio. Nonetheless, judges expect for cases on their dockets to be disposed of. Defendants and their lawyers do occasionally insist on such a thing as a speedy trial. The risk of prosecution witnesses moving or becoming lost also sometimes fosters a sense of urgency in the mind of the prosecuting attorney. 

    In regard to defendants, although some cynics out there might believe otherwise, these people are not an unimportant consideration to a prosecuting attorney. Even in the hustle and bustle of a busy criminal trial practice, most prosecutors I know are not indifferent to their obligation to see that justice is done for each defendant. They readily acknowledge that their decisions profoundly impact an individual human life. I think most prosecutors want to be compassionate and fair-minded. It pains me greatly when I see prosecutors portrayed in the media as ruthless and unfair. While I’ll readily admit that I can be aggressive and unforgiving when the facts warrant it, I have also lost sleep many nights wondering if I was ruining the life of someone who might still be capable of redemption. The decisions we make when seeking an indictment, what type of plea offer to make, and the punishment to seek from the judge or jury are not always easy ones.

    These are just a few of the types of pressure that I routinely experience in my job; I’m sure that you can name others. I’m aware of few other professions that experience so many different sources of pressure in the daily performance of their job. How a prosecutor handles or manages these sometime conflicting sources of stress can greatly influence how that person manages his workload; how he relates to his family, friends, and colleagues; how long he will stay in the profession; and whether he might eventually suffer burnout. I know I’ve stated in earlier columns how rewarding it can be as a prosecutor and how much I enjoy this profession—I know that sounds a little inconsistent with a discussion concerning sources of prosecutorial stress, but that’s still how I feel. I try to manage my time efficiently, spend time with my family, stay in shape, and pursue multiple outside hobbies and interests. That approach seems to work pretty well for me since I’ve been doing this for 16 years now.