Prosecution And A Side of Truth

Maligned as they so often are these days, the duty of a prosecutor is to secure “justice,” whatever that means. Justice Robert Jackson said so, and who am I to disagree? But then, the question isn’t what their duty is, but whether and how they perform that duty. As the Supreme Court famously said in Berger v. United States:

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.

On the other hand, the defense lawyer represents one, and only one, party, the defendant, to whom he owes a duty of zealous representation. He works for no cause. He doesn’t serve justice. There is no greater truth in the courtroom for a defense lawyer than the provide the defendant with effective assistance of counsel within the bounds of the law.

So why can’t a prosecutor say this at summation?

SOLICITOR: Ladies and gentlemen of the jury, thank you so much for your time throughout the course of this trial. I want to start by telling you that we both have jobs here. My job is to present the truth. In fact if you look in the South Carolina Code of Laws which mandates what a solicitor’s job is we can’t be like a normal attorney is. A normal lawyer has to advocate on behalf of his client. But on the other hand the Solicitor can’t. We have to say what the truth is and it’s –

After a tepid objection, sustained by the court with an instruction that it’s the jury’s job to find the truth, the prosecutor continued.

And [if] I know the person has done something that I think the facts show they’re guilty of, then I can’t nolle prosse it. I have to go forward with it. And as I said my job is to show the truth. On the other hand, the defense attorneys’ jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to — without regard for the truth — to get a not guilty verdict.

In a sense, he’s not entirely wrong, and there are surely times when smoke is all a defendant has to blow. Why then did the South Carolina Supreme Court grant the defendant a new murder trial because of the “easy” question of prosecutorial misconduct?

That there are different duties imposed on the prosecution and defense is certainly true, but that doesn’t answer the questions of what they’re presenting in court or what they’re permitted to say about it. Assuming, arguendo, that the prosecutor subjectively believes his evidence to “show the truth,” that neither proves he’s correct in his belief nor permits him to vouch for the truthfulness of his case.

The prosecution’s evidence speaks for itself, and if the jury believes it beyond a reasonable doubt, then it will make its finding of facts and return a verdict accordingly. It’s not true because a prosecutor tells the jury it’s true, as if he’s got magic truth-finding skills or secret information the jury doesn’t know. What he believes is irrelevant; it’s what the jury believes that determines the “truth.”

On the other hand, defense counsel may owe an undivided loyalty to the defendant, but that doesn’t mean his job is to “shroud the truth,” to “confuse jurors.” It may well be that the defense is the side offering the truthful evidence and the prosecution, even if well-intended, is wrong.

Then again, it’s often the case that the defense has no evidence to offer, as proof of a negative can be hard to find. The defense can pick apart the prosecution’s case, undermine the credibility of the prosecution’s witnesses, argue why the seemingly rational inferences the prosecution asks the jury to draw consistent with guilt can conflict with similarly rational inferences inconsistent with guilt.

In other words, sow confusion and blow smoke. And even confusion and smoke may be more aligned with the truth than the evidence of guilt presented by the well intended prosecutor. His belief, no matter how sincere and certain, isn’t evidence of anything other than his belief. He could be wrong. But even if he’s right, it remains the duty of the defense lawyer to raise doubts, as reasonable as possible, as to the defendant’s guilt.

It’s one thing to speak to the duties of the respective sides at trial. It’s another not to grasp that the advocates’ feelings as to the merits of their positions have no bearing on the performance of those duties. Neither side owns the truth. The defense side has a duty not to care.

In Oscar Fortune’s case, his lawyer’s tepid objection was that it was the jury, not the solicitor, who found the facts. While correct, he failed to grasp that he wasn’t merely impinging on the jury’s role, but vouching for his case. He overreached. He fell short of his duty.

Rather, the assistant solicitor’s misconduct was to misrepresent his own role, improperly claiming for himself the responsibility to decide truth, as though his opinions as to what happened “were in itself evidence.” Woomer, 277 S.C. at 175, 284 S.E.2d at 359. To the extent defense counsel’s first objection had any focus, it focused the trial court away from the misconduct (that was the issue) to the role of the jury (which was not the issue). In his second
objection, defense counsel said only, “Objection.” Counsel failed to bring the trial court’s attention to the fact the assistant solicitor just told the jury he already reviewed the evidence and would have dismissed the case if he didn’t believe Fortune to be guilty. Our first point in support of our judgment that the assistant solicitor’s remarks denied Fortune a fair trial is that defense counsel’s objections almost completely missed the issue on which he should have focused.

While “doing justice” may well be the ideal of a prosecutor’s duty, whether or not it plays out that way in a courtroom is up to the jury, and a prosecutor arguing to the jury that his case must be true because that’s his obligation isn’t striking hard blows, but foul ones. And if all the defense counsel can do to help his client is blow smoke up the jury’s butt, because facts and evidence don’t always cooperate with the defense, then that’s just as much his duty as well.

H/T Chris Van Wagner

9 thoughts on “Prosecution And A Side of Truth

  1. wilbur

    In what sort of a prosecutor’s office does one rise to the level of homicide trial work and not see that this argument inexorably leads to reversible error?

  2. Dan

    > And [if] I know the person has done something that I think the facts show they’re guilty of, then I can’t nolle prosse it. I have to go forward with it.

    Is there truly a single prosecutor, anywhere in the country, who believes this? His remarks, aside from being highly improper, were also a textbook case of projection–doing exactly what he accuses defense counsel of doing.

  3. Bryan Burroughs

    For those non-lawyer folks among us, the “why was this argument so bad” synopsis from the opinion is:

    1) By saying he “knows the truth,” the solicitor may lead the jury to believe that he has additional knowledge of the case which wasn’t presented, which the accused obviously couldn’t have defended against
    2) By invoking his role as part of the government, he gives an impermissible appeal to authority, as a jury might take the word of government to be more trustworthy by default
    3) By denigrating the defense counsel as shady (or the role of defense in general), he fundamentally attacks the right to present a defense

    And, from the court’s opinion, it sounds like the solicitor should have known better

    1. SHG Post author

      Have you been authorized to be my official sign language interpreter for the benefit of non-lawyer folks? If you feel the need to do this, start your own blog, but it’s not your place to do this here.

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