The Prosecutor, January-February 2008, Volume 38, No. 1

Who is our client?

2008

Question:    Whom do you represent?
Prosecutor:    The State of Texas.
Question:    Who is that?
Prosecutor:    Hmmm … Let me get back to you on that.

In the legal world, our brothers and sisters practicing in the civil arena can point to a warm body and say: “That’s my client. That is the person I have an obligation to represent. It’s my job to pursue his or her interest with zeal.” Once a civil practitioner identifies his client’s best interest, his duty is clear.

Before we, as prosecutors, can identify the best interest of our client, we have to first determine who our client is. Who (or what) is this “State of Texas” which we have an obligation to represent? The answer to that question is complicated.

The options

The law. On the first day on the job, each prosecutor raises a hand and swears to preserve, protect, and defend the Constitution and laws of the United States and the State of Texas. That sounds pretty simple. When we say we represent the State of Texas, we really mean we represent the law of the State of Texas. The legislature passes a law, the courts interpret it, and we apply that law to the facts that come before us. Ours is not to reason why, ours is but to do or die.
Justice. Article 2.01 of the Texas Code of Criminal Procedure tells prosecutors that it is not our primary duty to convict, “but to see that justice is done.” Now wait a minute. I just took an oath to enforce the law; now one of your laws is telling me that enforcing the law is subordinate to doing justice. Does that mean that my true client is my sense of fairness and that enforcing the law is a tool to help me carry out my personal preference?
The people. We learn in civics class that in a representative democracy, our government officials are public servants who serve at the pleasure of the people and are elected or appointed to represent the will of the people. If that proposition is true, shouldn’t we look to the community that put us in office to decide what laws to enforce or what their definition of justice is?
The victims. Many crimes leave real human beings hurting. Their lives have been altered by a criminal act, and they look to the courthouse for justice. They have a unique perspective on the offense, and many times we are their only voice. Don’t we have a moral obligation to represent their point of view? What if their view of justice collides with the community’s view or with our own sense of fairness?

Most of the time, our sense of justice, the legal consequences of crime, the community’s interests, and the wishes of the victim coincide. However, there are times when those interests conflict. It is then that the prosecutor has to struggle with the question: “Who is my client?”

To answer that question, I called on some fellow elected prosecutors to get their views. Their answers are both fascinating and inspiring.

Kerry Spears, County and District Attorney, Milam County

Whom do you represent?
I represent the people of my county, but in doing so I am helping people throughout Texas because criminals travel and do bad things to people all over the state. Sometimes a defendant in one case ends up being a victim in another, and I find myself representing the same person I prosecuted.


What do you do if your community disagrees with you?
I think they already do. We don’t represent the community the same way Congress represents the people. We don’t represent special interest groups. Our job is to do what is right, and in doing what is right we are representing the people, whether they think so or not. My duty is to protect the community whether they ask for it or not. We have a continuing obligation to educate the public about why it is important to uphold the law.


Are you saying that if you decide what is right, you can then disregard your community’s views on the subject?
No, my idea of justice is tempered by the public’s view. I also have to be realistic. If my juries are having a hard time convicting a child molester when the only evidence is the word of the child, I have to adjust my plea offers because I believe some justice is better than no justice. So the community does play an important role.


When you recently tried Jose Hernandez for negligent homicide when his dogs killed Lillian Stiles, did you feel like you had to stretch the law a little because justice demanded it?
No, I took an oath to uphold the law. I would not have proceeded if I did not believe that his conduct violated the statute. We may have different interpretations of the law, but our job is to enforce it.


What does seeking justice mean to you?
Theodore Roosevelt said it better than I can: “Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.”

Michael Fouts, District Attorney, Haskell

Whom do you represent?
Every citizen within my district and victim who is wronged by a criminal defendant. I represent the interests of my community, their safety, and quality of life.


What is your obligation to the law?
We have to follow the law. We don’t get to pick and choose what laws we like and don’t like. The law is the guide post and the map. We have to comply with it. I can’t say I agree with every law, especially the penalties of some of the game laws, but I enforce them.


If we have to follow the law, what does prosecutorial discretion mean?
There are times when people stumble and make a mistake, and their conduct results in a technical violation of the law, but there is no wrong committed. It just doesn’t smell like a crime. When I face that kind of an issue, I ask myself: What is the greater good? Is society better off by me prosecuting? What good would we accomplish by pursuing this? What would a jury in my community think of this case?


What is your obligation to the community?
The community sets the standard. I have to be aware of what the people in my community expect because they set the bar. Justice can vary from one community to another, so in the grand scheme of things the views of the community play a role in decision making, but the community cannot be the be-all and end-all. They can’t dictate the result. As decent human beings we have a sense of right and wrong and fundamental fairness, and that consideration trumps community sentiment. For example, if the mayor’s kid got in trouble and everybody in town liked him, you prosecute the case because justice dictates that everybody be treated the same regardless of their station in life. The prosecutor’s sense of decency and fundamental fairness controls.

Henry Garza, District Attorney, Bell County

Who is your client?
We do not have a live body we can point to and say “This is my client.” Principles of justice do not fit nicely into a body that way. My decisions are governed by the law to the benefit of the people of the State of Texas, the county I represent, and, in turn, victims who have been harmed. I am asked to do all that I can to see that justice is done and fairness is accomplished in all of my decisions.


What is justice?
Justice is working to do what is right by striving to achieve the purpose of the law. There are two components of justice that come to mind. The first is basic fairness, regardless of who you are, where you are from, or whom you know, that you will be fair in applying the law regardless of outside influences. The second is that people should be held accountable for their conduct in proportion to their conduct and past circumstances.

When justice has been done, you know it. You see it on the faces of victims, and you hear it from their comments when they go home. When victims first enter our offices, they are many times angry, frustrated, and confused, and it is understandable—something horrible has just happened to their family. But at the end of the day, when they leave, you know that justice has been done when they feel that they were treated fairly and their case was handled professionally and in the right way.


What role does the community play in determining justice?
We are asked by the community to do what is right, to uphold the law in the way it was intended. The secret of success for elected officials is to always say yes, but our duty as prosecutors will require us at times to say no—to say no when justice dictates it. The day you say no is the day things will change. You won’t be as well-liked. You have to have the integrity to say yes when you need to say yes and no when you need to say no, regardless of the consequences.


What is the purpose of prosecutorial discretion?
The world is not black or white. There is gray, and in these gray areas we are called upon to use discretion. Part of our job is to give a fair response to a defendant’s conduct and at the same time keep our communities safe. Crimes that fall in this area simply require us to apply our common sense as prosecutors, while at the same time, fulfilling our goal of enforcing the law and seeing that justice is done.

Jaime Esparza, District Attorney, El Paso County

Who is your client?
If we just say our client is the State, that really doesn’t tell you much. But if you think of the State as a living, breathing organism, you have a better sense of your obligation. I really like the notion that as attorneys we have an obligation to protect our client’s interests, and as prosecutors we have an obligation to protect the State’s interests. The State’s No. 1 interest is justice, and she requires that we be just to the accused, to the victim, and to our community.


What is justice?
Justice in a perfect world is when we know everything there is to know about a case so that we can make the right decision. In reality we are limited by what we know about the crime. Justice requires that we punish fairly and are honest about how we approach and obtain a conviction. Justice also means we have to be responsive to the loss and hurt associated with crime and the recognition that the victim may never be the same. Finally, justice includes protecting the community.


What role does the community play in your work?
The community tells us what justice is when they sit on a jury. Of course only a fraction of the cases go to trial so we have to use our judgment in making most decisions.


What happens when your obligation to justice is at odds with your community’s view?
Our client wants us to protect her. Protecting our client can put us at odds with our community. As we protect our client, it is often difficult to explain to the community how we come to our decision. We are asked to take everything into account: the illegal conduct, strength of the evidence, defendant’s circumstances, injury to the victim, safety of the community, and limited resources we have at our disposal. Unless you are actually involved in the case, it is difficult to completely understand the reason for our decisions.


What are your thoughts about prosecutorial discretion?
I am required to protect my client by using my judgment based on my experience and what I know about the case. When the legislature limits my discretion, it limits my ability to do justice and protect my community.


What keeps prosecutorial discretion in check?
I was elected to be the prosecutor, not the governor or the czar. There are natural checks and balances in the system. The State has good lawyers protecting her interests, and defendants have good lawyers protecting their interests. Judges and juries have an important role. All of these forces keep us in check and make us act responsibly in each case.

I have grown to appreciate how difficult and important this job is. Often, the media hurts us by making it look simple or wrapping it up in a neat one-hour television show. Our job is as simple as right and wrong and also that complicated.

Conclusion

Who is our client? It is on every indictment: the State of Texas. At the conclusion of every charging instrument, she reminds us that crime violates her peace and dignity. She expects us to enforce her laws, protect her people from harm, and respond to her citizens. She asks that we do it with fairness and honesty. Judging by the prosecutors I spoke with, she is getting her money’s worth.