After posting about the blogversation on whether to disclose exculpatory evidence to the prosecutor before trial, or wait for that “Perry Mason Moment” when you spring it on them, WindyPundit alerted me to a prosecutor blog that also commented. 

The blog is called Seeking Justice by a prosecutor named Tom McKenna.  He is obviously a thoughtful and deliberate lawyer, as demonstrated by the fact that he doesn’t even acknowledge Simple Justice’s existence.  On the bright side, he also ignores Western Justice, whose post gave rise to the blogversation.  This suggests that Tom McKenna doesn’t dabble with either the lower echelon of the blawgosphere, or his unworthy prosecutorial competition.  But that doesn’t mean that I can’t aspire to address Tom’s perspective, in my own lower echelon kind of way.

Initially, Tom takes issue with the positions taken by Blonde Justice, the Texas Tornado and to some extent, Gideon.  To the extent that Bennett and Blonde argue that holding their cards close to the vest so that they can sandbag the prosecution at trial, Tom says “no dice.”

First, it usually doesn’t work: on even a mediocre defense cross, she’ll likely reveal her uncertainty anyway. And if a defense investigator has her saying she is really uncertain, that prior statement will come out. Either way, it’s a fair bet that a recanting witness is not going to be “threatened” into being a credible witness.

It strikes me that Tom’s perspective might be a bit narrow, which clouds his view of what a defense lawyer can do given the right material.  Since I don’t know where Tom prosecutes, or what types of cases he handles, I’m limited in my discussion.  But a recanting witness is not the only “bombshell” in town.  In fact, as bombshells go, a recanting witness barely makes the list.

My guess (and it’s only a guess) is that Tom probably hasn’t had too much experience with more complex prosecutions, where top defense lawyers can rip the heart out of a prosecution with a video or tape recording that shows their main witness to be a lying, scheming mutt.  Or documents proving that the thrust of the prosecution is manufactured out of whole cloth by malicious cops and naive prosecutors.  Bombshells don’t come along every day, but when they do, it can be huge.

But then comes the heart of Tom’s disapproval.

Of course, it remains that a defense attorney can save the “bombshell” for trial and get lots of jollies making the prosecution look foolish by bushwhacking the prosecutor with surprise information. Heck, it happens often enough, though it’s rare that the surprise evidence is of sufficient quality to gain an acquittal.

It seems that the bottom line here is that Tom doesn’t want to be embarrassed.  Tom expects the defense to put his feeling first, and thus place their trust in Tom’s good judgment.  Trust me, Tom says.  I’m a good guy.  I’m fair.  I will decide whether your bombshell “moves me” sufficiently.  And because I’m good and fair, and most importantly, because I’m the prosecutor, it’s my decision that matters.

But the kicker is on the back end.  Not only does Tom assert that he expects to be trusted, and for the defense attorney to accept his prosecutorial judgment as the final word, but then there’s the fist in Tom’s velvet glove.

But as Mark Bennett alluded to, I’m going to remember if you’re the kind of lawyer that would rather go for the public “gotcha” than work with me to find out the truth about the case. And if that attorney practices regularly in my jurisdiction, every attorney in my office is going to be told about it.

Payback, baby.  Make Tom look bad and he’s going to make sure that you, and all your future clients, get burned for it.  Forget about that concern for “justice” and not putting the innocent in prison.  Petty self-interest trumps all when it comes to making a prosecutor look “foolish”. 

It’s hard to imagine how someone could fail to recognize his own massive internal contradiction, by simultaneously arguing that he’s fair and “idealistic”, but that if you make him look bad he will do everything he can to harm innocent defendants going forward as payback to the lawyer. 

And, of course, Tom neglects to recognize that little detail that formed the basis of Bennett’s and Blonde’s position, that the sufficiency of the exculpatory evidence isn’t left to the prosecutor’s discretion, but to the jury’s.  This egocentricity is precisely the problem; prosecutor’s truly believe that it’s entirely their decision and they (and they alone) know the “truth” about guilt and innocence.

And that’s an awfully good reason why you can’t trust the prosecutor.