May-June 2018

Prosecutors and police

Bill Wirskye

First Assistant Criminal District Attorney in Collin County

“In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders.”
—opening credits of the TV show Law & Order

Sometimes it’s easy for prosecutors to grow frustrated with law enforcement in their jurisdictions. I know this because it happened to me recently. On some level, this frustration on our part is understandable. After all, officers are involved in every case we handle, and frequently we do not see eye-to-eye with them on important issues, like whether they have brought us a “strong” case to prosecute. They second-guess our prosecutorial performance and decision-making, even as we “Monday-morning quarterback” their police work. These constant friction points will test any relationship we have with local law enforcement—whether it is at the agency level or on a personal basis. It can also try a prosecutor’s patience and infect our attitude.   
    Recently, I found myself very frustrated while dealing with some of our local officers on several issues. Despite my best intentions, it seemed that every interaction we had was tense, negative, and counterproductive, and the more I tried to work cooperatively with the officers, the more I made matters worse. Ultimately, I felt that certain officers were questioning my motives and commitment. Even though I wanted to fight crime with them side-by-side like the fictional characters on Law & Order, I had lost my patience and developed a frustrated attitude that bled over into all my other interactions with law enforcement. I knew I had to do something because my “infected” bad attitude was simply unacceptable.
    Then, just as I began to reset my thinking, something horrible happened. On February 7, 2018, Richardson Police Officer David Sherrard was murdered in the line of duty.1 This outrageous crime immediately put things back into the proper perspective for me. At the very instant I heard that a local officer had been shot, I remembered the deep respect I have always had for the profession of policing and how proud I am to work with officers every day fighting the good fight. Even though I did not know Officer Sherrard personally, I was filled with the immense gratitude I have always felt for the brave men and women of law enforcement who put their lives on the line for us every day. I was also somewhat ashamed of myself. I had lost sight of several of my core beliefs about law enforcement, and I had allowed myself to get frustrated with officers over several issues that I could have easily backed down on, or at least backed away from.
    I resolved to recommit to finding a mutually acceptable solution to the issues I had worried about. My relationship with law enforcement was simply too important to jeopardize. I reminded myself that even though prosecutors and officers are not part of the same team, we are almost always on the same side—the right side. The people we both represent are counting on us to work through any issues or disagreements and find solutions on their behalf.
    Here are a few observations about prosecutors and police that I’ve been reflecting on these last few months.

It’s all about relationships and reputations.
When it comes to getting along with law enforcement at either the agency level or the personal level, it’s all about relationships. Nothing can turn difficult conversations or meetings into a productive collaboration like a solid, pre-existing relationship based on mutual trust and a belief that both parties are committed to the same goal: getting the bad guys. If law enforcement trusts you and officers believe that you are committed to fighting crime, they will accept decisions and results they don’t necessarily agree with. It is incumbent upon us as professional prosecutors to develop these relationships.
    Building a good relationship with law enforcement is never an accident. Solid relationships and reputations can be built only through a sustained commitment to formal and informal interactions with agencies and officers. At an agency level, semi-regular meetings with local law enforcement leaders are useful to discuss items of mutual concern.2 On a personal level, prosecutors can take advantage of formal interaction opportunities, such as pre-trial prep meetings, keeping officers informed on the status of cases (more about that below), or answering questions for law enforcement.3 Informal opportunities are also plentiful for most prosecutors: police ride-alongs,4 extending a simple courtesy (such as helping an officer get to the right court for his case), or taking a few extra minutes for a non-work conversation with an officer (such as asking about family, hobbies, pets, etc.). Regardless of the type of interaction, it’s never a bad idea to simply thank an officer for his work. This type of unexpected and unsolicited gratitude will help a prosecutor build relationships with police officers.
    Whether we like it or not, each prosecutor also has a reputation among local law enforcement. A good reputation is built one relationship at a time, so our reputation will largely be based on  the quality of our individual relationships with the officers we know. A good reputation with these officers will help us in difficult conversations with officers we don’t know. Conversely, if we have a bad reputation among law enforcement (i.e., “He doesn’t care what we think”), those same conversations will be exponentially more difficult. That’s the power of our reputation. And, good or bad, our reputation is almost always in the conversation with us whether we know it or not. Often, if I’m meeting with an officer whom I’ve never met, he will tell me that he asked around about me in preparation for our conversation. I know that if officers are telling me this, I passed my “reputation check” and we will likely have a productive conversation. That’s a great feeling as a prosecutor—it tells me that at least some officers I know have vouched for me within the tight-knit world of police officers.

Always account for the officer’s interest in his case.
As prosecutors, we are always too busy, and we always dread having yet another difficult conversation. However, this is no excuse to keep from contacting the officers involved in our cases, both to seek their input and to keep them informed. To their credit, most officers are interested in the outcomes of their cases, and you can bet that they find out what happened on a case even if we don’t tell them, especially if it’s a less than optimal outcome.
    These input and update conversations are crucial to both the case and in building trust with officers, and we can often learn crucial information not reflected in a report if we just take the time to pick up the phone or send a quick email. I believe we also owe our officers the courtesy of an update on a case, especially if it’s “bad news.”5 We can’t avoid difficult conversations with officers because we think the news might upset them. On the contrary, it’s exactly these types of hard conversations we should be having. Such conversations build trust, and sometimes they will offer the opportunity for a teachable moment.6    
    I also use these conversations as a way to express my gratitude to law enforcement for their willingness to do a difficult and dangerous job. I started this practice a few weeks after the July 2016 “Dallas Ambush” that claimed the lives of five local police officers.7 I was presenting to a room full of officers, and wanting to acknowledge my gratitude to them, I started off my presentation by thanking those in the class on behalf of prosecutors everywhere. In response, I got several funny looks from the officers up front. When I asked about the funny looks, the officers told me that no prosecutor had ever thanked them before. Being somewhat surprised by this and not wanting to believe them, I then asked the entire class for a show of hands: “Who here has recently received thanks from a prosecutor?” Sadly, no hands went up. I decided then and there to take every opportunity I could to express my thanks to officers, and I encourage every Texas prosecutor to follow suit. These input and update conversations are a great chance to say “thanks.”

Understand that officers and prosecutors live in different worlds.
Cops are from Mars and prosecutors are from Venus.8 What I mean by that is that cops and prosecutors operate in two somewhat different environments. Officers live on Planet Probable Cause while we dwell on Planet Reasonable Doubt. While we share a common goal (getting the bad guys), sometimes we are separated by our differing burdens of proof. Cops generally see probable cause (the arrest) as their finish line, while we generally see beyond a reasonable doubt (the conviction) as ours. Their finish line is our starting line. Having these two perspectives can cause friction if we are not careful. Add to the mix that prosecutors are addicted to evidence (we are always craving more), and I hope you can start to see the potential for misunderstandings and hard feelings in the everyday conversations we have with officers.
    A common and problematic scenario goes something like this: The police file a case with us. They are (rightly) proud of the fact that their investigation thus far has led to probable cause and an arrest (they’ve crossed their finish line). When we (the “evidence addicts”) discuss the case with them, we are focused more on our finish line (beyond a reasonable doubt) and start to ask questions about what can be done to generate more evidence. (Because we are addicts, more evidence is never enough! We will never be satisfied.) And because prosecutors are accustomed to courtroom battles with highly critical defense lawyers testing our case (rightly so), we question the officers about the evidence they’ve collected thus far and the decisions that they’ve already made (see “Second-guess police with great care,” below). This conversation has huge potential for hard feelings: Highly critical evidence addicts (prosecutors) interrogating the usually assertive and often very proud heroes (the officers) who are not used to being interrogated—especially by people they thought were on their side!
    While there is no single “preferred method” for a prosecutor to follow in these conversations, I always try to take the egos out of the interaction. It is never about me being right and the officer being wrong. Rather, it’s always about what’s best for the case. Although this is a sometimes subtle distinction, it is amazing how simple conversations can quickly turn in to a contest of egos. There should be no winners or losers in these conversations, so check yourself and your ego if you find you are just trying to win a point or gain a concession.
    I’m also always on the lookout for strong emotions starting to surface or tempers starting to flare—either by the officer or me. When this happens, I know I’d better change the topic or cut short the conversation and re-approach it another day. Effective communication in such hot situations is nearly impossible. As prosecutors, we must be acutely self-aware during these interactions so we don’t send an unwitting and inaccurate message. These are important conversations that happen every day in every jurisdiction, and the people we represent are entitled to expect that their police and prosecutors communicate in a respectful and productive fashion.

Second-guess police with great care.
By the very nature of our job, we are called upon to pass judgment on the quality of the police work in our jurisdiction. Our duty “to see that justice is done”9 requires us to do more than merely adopt officers’ conclusions without a skeptical, critical questioning of both methods and results. This is how our system is designed, and that’s how it should be. Our role requires us to be independent of law enforcement. Most officers I know fully understand our role and recognize how essential independent prosecutors are to a healthy criminal justice system. But just because we must be critical of police work does not mean we have a license to be an unfair critic. Unfair second-guessing or Monday-morning-quarterbacking can quickly undercut our credibility as prosecutors and sour our relationships with officers.
    What exactly is unfair criticism? It is criticism that enjoys the luxury of time and the benefit of hindsight that does not account for the important (often life or death) decisions that officers have to make in real time and often with incomplete, ambiguous, and contradictory information. In short, unfair criticism of police work and decisions will not account for these factors, whereas any fair (and thus helpful) criticism will. Unfair criticism is also frequently based on incorrect factual assumptions on our part. Because we are rarely with the police on a traffic stop or during an investigation, our view of that event is often incomplete. Remember: We don’t know what we don’t know, so ask enough questions to get a full understanding of the event before you critique it. Context is everything when it comes to reviewing another person’s decision. Prosecutors simply must understand the type of environment and conditions officers operate in so we can usefully critique police decisions and independently and accurately review police actions.
    The importance of this perspective was driven home to me early in my prosecutorial career when I was assigned to assist the Dallas Police Department Homicide Unit. My job description was to support detectives from the crime scene to the courtroom. By tagging along with these experienced detectives, I saw the challenging decision-making environment they operated in. They had to make important investigative calls on the spot, in real time, in the middle of the night, going on very little sleep, with only incomplete and ambiguous information to rely on. After experiencing this environment first-hand, I was chagrined to think of several earlier instances where I had unfairly criticized their decisions. I recalled my frustration with one case where I thought an obvious person-of-interest hadn’t been detained and questioned. I remembered another case where I thought a crime scene search had been too cursory and a chance to recover important physical evidence was missed. What had seemed obvious to me after a careful and long consideration of all the facts from the comfort and safety of my office now seemed like unfair second-guessing. I realized the huge benefit of hindsight we prosecutors enjoy when we review a case on paper. I hadn’t fully comprehended the degree of difficulty inherent in the environment in which these detectives operated.
    That experience with the DPD Homicide Unit informs me today, as I am frequently called on to pass judgment on police work. While we should never shirk our duty to ask hard questions about police methods, investigations, and results, we must also make an effort to be fair in our criticisms. Only fair criticism is useful criticism.

Final thoughts
I believe any issue or problem between prosecutors and police can be collaboratively solved when there is a solid, pre-existing relationship, based both on trust and shared commitment to the same goal. To return to the officers I mentioned early in this column, the ones with whom I was frustrated, I must note that I stopped trying to butt heads with them over our problems. In fact, what I saw as “problems” really weren’t the problem. The real issue was that my relationship with these particular officers was not strong enough.10 I am now working to solve the original problems indirectly—by strengthening my relationships with those officers.
    I often think that we prosecutors and law enforcement are kind of like a family. We may squabble and disagree with one another from time to time, but we still share a bond that binds us together (whether we like it or not). That bond is our shared responsibility to represent the people and seek justice on their behalf.


1  For more information on the murder of Officer David Sherrard see 03/01/hunting-us-richardson-police-say-man-accused-killing-veteran-officer.

2  For example, Collin County Criminal District Attorney Greg Willis has frequent meetings with all local police chiefs to discuss emerging issues of interest to both police and prosecutors, such as body-worn cameras and officer-involved shootings.

3  Prosecutors should be careful when called upon to answer hypothetical questions for law enforcement. Hypotheticals rarely mimic the complexity of actual situations and thus are of somewhat limited value. Also, sometimes an officer might try to get a prosecutor to answer a hypothetical question to prove a point to another officer (oftentimes a superior with whom he disagrees). This is a tricky area where a well-meaning prosecutor can do more harm than good, so proceed with caution.

4  Always check your office policy to make sure that ride-alongs are authorized. The same goes for the police agency—make sure the police department authorizes ride-alongs.

5  We somehow always seem to find the time to gloat with our officers when we get a “good result.”

6  Sometimes the officer did make a mistake or could have done better. It’s up to us as prosecutors to try and have a respectful, teachable moment if the officer is open to feedback.

7  For more information on the 2016 Dallas Ambush see

8  With apologies to John Gray, author of the classic guide to understanding the opposite sex, Men are from Mars, Women are from Venus. For more information see Men-Mars-Women-Venus-Understanding/dp/0060574216.

9  Tex. Code Crim. Proc. Art. 2.01.

10  The other problem was my bad attitude.