How Do You Stop a Prosecutor from Overcharging?

It’s an old joke, of course. But not as old as the stereotyping of the relationship between police, and prosecutors, and what Hammett, Spillane, and in a somewhat milder vein, Gardner, used to portray as the intrepid but slightly disreputable private investigator or criminal defense attorney. Avid crime novel reader though I am, I always found that stereotype unpersuasive, perhaps because I’m also an attorney and occasionally do criminal defense work. And I have never been treated with anything but the utmost courtesy by cops and prosecutors. So I figured the hostility between cops/prosecutors and private eyes was just a literary device to generate conflict and complexity in an otherwise too-simple story.

Apparently I was wrong, at least in Cook County. Or, at any rate, the newly-elected Cook County State’s Attorney, Anita Alvarez, reads the same crime novels I do and takes them a lot more seriously.

Some background: David Protess*, a professor at Northwestern University’s Medill School of Journalism, has for ten years or so been running an Innocence Project which has succeeded in getting several convicted murderers off Death Row and getting several other convicts out of the Illinois prison system. His students investigate diligently, and then turn their information over to the State’s Attorney, to prove that their clients were innocent all along. Not just “not guilty” on some technicality or other, like improperly seized evidence or improperly extracted confession—actually innocent. As in “they didn’t do it.” As in “some other dude did it” who may even still be on the street free to do it again. They succeed often enough that the State’s Attorney’s office is evidently a bit embarrassed.

So our new State’s Attorney has decided to strike back. Presented by the Innocence Project with evidence that Anthony McKinney had not committed the 1978 murder for which he was locked up for life, she has subpoenaed the students’ grades, notes, expense reports, and class syllabi, all in an effort to demonstrate that the students were more interested in getting good grades by any means necessary than in getting an actually innocent man out of prison. They paid witnesses to give exculpatory testimony, she says, and the witnesses then spent the money on drugs. They were themselves then rewarded by getting good grades.

Fire and brimstone coming down from the skies! Rivers and seas boiling! Forty years of darkness! Earthquakes, volcanoes…: The dead rising from the grave! Human sacrifice, dogs and cats living together… mass hysteria! Investigators who were themselves being rewarded for getting the evidence may have paid the witnesses who provided it, who then may have spent the money on drugs. Oh the humanity! Ummmm, don’t the cops get paid to dig up evidence? Don’t they occasionally pay informants, or at least cover their expenses? Is it at least remotely possible that some of those informants then spend the money on something other than food, non-alcoholic drinks, transportation, extra socks, a new copy of the Big Book, and a donation to the parish poorbox?

Aside from which, the students say the only pay they gave an informant was his cab fare, paid directly to the driver with instructions not to give the change back to the informant. But what difference would it make if they had given him drug money? Isn’t it the State’s Attorney’s job to check out the information provided by the students? Why is she expecting them to present in finished form, suitable for presentation in court? Why is she persecuting them for not doing her homework for her?

I’m not even going to get into the issues of privilege raised by Medill’s attorneys—if the students are journalists, their notes and personal and academic information should be shielded from seizure by the prosecution, but so what? Even if they’re not journalists, and even if everything Alvarez alleges is true, what difference does it make? There is no legitimate reason for pursuing this stuff, and the most obvious illegitimate reason is that the head prosecutor is finally in a position to pursue a vendetta against the people who have been embarrassing her office for years.

Back when I was working at the Federal Public Defender, my boss told me, while expounding on final arguments, “a lot of jurors vote to convict because they find the prosecutor really likeable and they don’t want to hurt his feelings. You need to point out to them that his feelings won’t be hurt in the slightest, because an honest vote to acquit isn’t a defeat for the prosecutor. He’s not like us—we only win if our client gets acquitted. But the prosecutor wins if justice is done, whichever way that goes.”

This prosecutor is losing.

* Full disclosure: David Protess and I were involved in draft counseling some of the same students at Roosevelt University in the 1970s. He’s a good guy.


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