The Perfect Storm In Ortiz’s Office

Giving Orders To The Prosecutor

Over the last two days I’ve written about David Boeri and David Frank’s article Ortiz Under Fire. Boeri has been one of the best writers in the matters surrounding Whitey Bulger. He has approached the matter from what I’d call “an investigative reporter” point of view. He considers all sides and puts his long experience to use in arriving at his conclusions. Most other writers seem to line up on the side of the prosecutors and act as cheer leaders for them. I’ve disagreed with some of Boeri’s conclusions but appreciate his insights and ability to see the case through a different lens based on his skill as a reporter.

I know less of David Frank. He seems to be a gadabout going from one high publicity case to another and opining on them. I have no idea what his background is as a litigator or even if he’s ever been in the pit. Perhaps he’s seen enough by now to be able to separate the chaff from the wheat. Together Boeri and Frank produced a fine article well worth being read by every person especially those in the litigation business.

The reason I bring up their article again is that there is much more in it than meets the eye. It does what good articles should do and that is to make one reflect on it for what it says and what it doesn’t say. The gist of it to me is that the US Attorney is failing in her responsibility to insure that no person is prosecuted unless there is close to a certainty the person committed each crime that will be charged. The article doesn’t tell us why this is happening.

Months ago I talked about the qualities needed to be a good prosecutor and one is not to be run around by the cops. The jobs are different. The cops are supposed to be like pit bulls charging around biting at people, the prosecutor is supposed to insure they only bite the people who deserve to be bitten” The cop has the hard job of pounding the bricks ferreting out the evidence; the prosecutor has an easy office job of reviewing what the cop digs ups and being absolutely convinced that it establishes the person committed the crime.

When the cop has spent time and energy putting together her case it becomes something she wants to bring to a successful end which means she wants a prosecution. She can’t do this on her own because our system interjects a person between the cop and the suspect. It is the prosecutor. She has to convince the prosecutor to go forward with the case, or, better put, the prosecutor has to tell her she doesn’t have a case. In some cases taking a bone away from a hungry bulldog is easier than telling a hard-working cop that her evidence doesn’t support her conclusions. Cops don’t like to hear no.

This is the first blip in the road for the good prosecutor. There is no easy way to tell a cop the evidence just isn’t there. It’s easier for the prosecutor to go along with the cop who is sitting across the table from her insisting she is right than to tell her otherwise..

I think of Jeremiah O’Sullivan when I say that. He was a top-notch prosecutor who had no trouble taking a case to trial against the most formidable of criminal defense lawyers in the highest profile cases like Mafia prosecutions. But when it came to the cops he ran scared. In answer to a question by Congressman Meehan about the FBI culture, O’Sullivan said: “[T]he FBI if you go against them, they will try to get you. They will wage war on you. They will cause major administrative problems for me as a s prosecutor.” 

O’Sullivan was a federal prosecutor for 20 years. He was head of the Organized Crime Strike Force. He was interim US Attorney for Boston at the close of his career. If that expresses a common attitude about the cops you see how a federal prosecutor could believe his job is at risk in going against the cops. Even before he sits down his hand is already weakened by this wrongful shift in the balance of power. But it’s worse.

Boeri and Frank’s article suggests to me a perfect storm is happening in Carmen Ortiz’s office. Even if a federal prosecutor had the back bone to stand up to the cops it would do no good. Ortiz has, as I showed yesterday, the attitude “let’s go with it and see what a jury decides.” How can a prosecutor turn down a cop’s request to charge in that type of environment? Can’t you hear the cop saying, “You might not think I have enough but that’s not your decision. I want a jury to decide.”

The fearful prosecutors have become rubber stamps. They are afraid of saying no. If they do, they are not being given the backing they need. That is the only explanation for the situations as shown in “Ortiz Under Fire” and in the Caswell Motel case. Carmen should take Nancy’s advise and “just say no” to the cops and accept Justice Jackson’s suggestion she have “humility” in her dealings.

She can still turn things around if she realizes her power should be wielded with wisdom. Her boss Eric Holder has pointed the way. He said: “Your job . . . is not to convict people. Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision that you make, to do the right thing.

Here’s hoping the storm starts to abate.

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