THE BLOG

The Best Prosecutor? Perhaps a Defense Attorney

05/17/2010 05:12 am ET | Updated May 25, 2011

This past week, Manhattan District Attorney Cyrus R. Vance, a former criminal defense lawyer, raised eyebrows announcing his Conviction Integrity Program, a new internal watch-dog unit created to investigate cases that raise red flags about prosecution fairness. Although some have criticized the program as an unnecessary expense sanctioned by a defense lawyer in prosecutor's clothing, Vance is just doing his job to ensure against wrongful convictions. And if it took a former criminal defense attorney to step up to the plate and get the job done, here's to him.

The conventional wisdom is that former prosecutors are the toughest judges for the prosecution, and, as a former prosecutor, I believe this to be true. Even so, it always rattled me when I was on the bench and defense lawyers would waive jury trial, putting their client's fate into my hands. Was this some commentary on my performance as a prosecutor? Had I shown too much of a pro-defense sensibility? Neither. They knew I brought to my role as judge an insider's knowledge of one side of the criminal law. This experience better informed my role as a neutral and gave me valuable perspective.

Vance's program is an overdue testimonial to the fact that a prosecutor's loyalties -- unlike other lawyers -- are not undivided. A prosecutor's duties include insurance of procedural and substantive fairness to defendants because, as one element of a just society, it is in the interests of the collective good. Vance's experiences as a defense lawyer seem to have well-informed his decision to create a systematic program that benefits defendants as well as the community. And none too soon.

Only last week, there was yet another high-profile case of prosecutorial misconduct in the news. New Orleans Judge Lynda Van Davis granted a new trial for Michael Anderson, a 23-year old man convicted of killing five people, finding the prosecution guilty of failing to turn over two key pieces of evidence to the defense. Mr. Anderson had been sentenced to death. This overturned conviction ratchets up concern about the New Orleans justice system where more people sentenced to death since 1976 have been exonerated than executed, according to an article in the Southern University Law Review by Bidish Sarma, a New Orleans lawyer.

A recent study by The Center for Public Integrity of local prosecution practices across 2,341 jurisdictions reported an unsettling account of prosecutorial misconduct -- cases where prosecutors broke or bent the rules to win convictions. In the study, Harmful Error: Investigating America's Local Prosecutors, the authors report that, since 1970, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences in over 2,000 cases. In another 500 cases, appellate judges offered opinions -- either dissents or concurrences -- in which they found the misconduct warranted a reversal. In thousands more, judges labeled prosecutorial behavior inappropriate, but upheld convictions reasoning the behavior constituted "harmless error."

The roles of prosecutor and defense counsel are not symmetrical. The defense attorney is charged only with her client's well-being; she has no corresponding "duty" to the government during the course of the case. Not so for the prosecutor. The constitutional protections afforded criminal defendants -- such as the privilege against self-incrimination, the presumption of innocence, the stringent beyond a reasonable doubt standard, the requirement of a unanimous jury verdict to convict -- exist to counter the innate power imbalance that favors the government. The prosecutor may also have a duty to search for evidence that may potentially damage her case, as well as a duty to produce exculpatory evidence to the defense -- voluntarily and without request, whereas the defense clearly has no corresponding duty.

These ethical guidelines recognize a prosecutor as a "minister of justice" whose duty is to seek justice, not merely convict. As a minister of justice with a duty owed to each defendant, Mr. Vance is just doing his job in creating a systematic program within the Manhattan D.A.'s office to ensure against wrongful convictions. To his credit, it holds the promise of being a job well done. And perhaps it needed a former defense attorney to have the vision to do it.

Maureen A. Howard is an Assistant Professor at University of Washington Law School in Seattle. She is the author of Taking the High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges.