The Pull and Tug of Between the Prosecutors and Cops in Prosecuting Criminal Cases

When I said DA Michael Morrissey did the right thing using the nolle prosequi to terminate the prosecution of Amy Bishop I got some push back from some that a DA should not have such power.  Earlier others criticized my suggestions the prosecutor is the most important part of the criminal justice system.  They suggested the DA interferes too much with the cops indicating the DA should be some type of rubber stamp approving whatever the cops do.  I could not disagree more.

Many of the cops look upon assistant district attorneys (ADAs) as an obstruction and interference to the way they think things should be done.  They want ADAs to just take their cases and prosecute them, no questions asked.  In fact, they’d prefer that people from their own departments prosecute the cases rather than an outsider, which the ADA is always considered to be.  That was the way it was once done.  Some still yearn for the old days as I see from comments to my blog.

The cops are right in their appraisal that the ADAs are a hurdle that they have to pass over.  That’s how the system is supposed to work.  I met with every ADA we hired and gave them a little introductory talk.  One thing I told all of them is that we are not cops.  Our jobs are different.  The cop has the hard job of being on the street and encountering the daily wash and flow of the citizenry.  She has to make immediate decisions under immense pressure and sometime s/he might run into a person who is extra belligerent, or goes through a harrowing experience, or runs into the same person again and again.  Sometimes the cop jacks up the charges, sometimes the wrong person is grabbed, sometimes the way in which the evidence was gained was not right, or sometimes the person is being overcharged or should not be charged at all.  I’d tell the ADAs we want our cops to be aggressive but that is not our job.

An ADA has to take the evidence the cop gathers, analyze it, and make a decision on the best way to prosecute it, if she decides to prosecute it at all.   ADAs work in a less threatening environment where they have the time to analyze cases.  If they just follow the cops desires they are not doing their jobs.

I recall one occasion I had a district court ADA call me.  He was in the middle of a case where the trooper’s evidence against the defendant came from a tape recording the trooper had secreted in his cruiser.  He secretly recorded the defendant’s conversation with another person.  The ADA wanted to know how to put it in evidence.  I told him he couldn’t.  It violated chapter 272, section 99 which prohibits secret recordings without a court warrant.  It was all the evidence we had that the defendant committed the crime so the case had to be dismissed.

The ADA told the trooper we couldn’t use the tape.  He became quite upset.  The ADA reported back to me that he said: “I should have listened to what they told me at the Academy.”  Hearing that I thought he would go on and say they had been taught that they couldn’t secretly record people.  But I was wrong.  He went on to say, “They taught us not to tell the ADAs how we got our evidence.”

These point out the big problems with all police departments — they are insular, suspicious and protective of themselves from outsider.  Prosecutors are considered outsiders.  They should be.  They are on the same team but have a different function.

Often the walls would break down when you worked closely with some of the investigating officers over a period of time.  The police officers assigned to our office or who were on our task forces worked hand-in-hand with us every day.  The decisions on what to do about specific matters were often made after discussions in the quiet of our offices.  We would discuss what we knew and what we thought we could learn by taking this or that step.  Working with the police investigator in the office and working with the uniform cops was like night and day.  I’d notice this when I’d go on searches or to crime scenes.   The guys from the office knew why I was there and appreciated that I had a function which often was to make sure that if any searches were to be done in other places or even if the time at the crime scene was to be extended, I would work to ensure the legal sufficiency of the paper work to do the next step while they continued their investigatory work searching for contraband or interviewing suspects.  The guys in uniform looked at me suspiciously as if I was intruding on their turf.

The bottom line is the prosecutor and the cops should work together but one person has to make a final decision.  The ADA is one step removed from the turmoil of the street where the cops and citizens collide.  Think of it as a boxing match. We don’t let the fighters or their friends decide who wins.  We have a referee.  The prosecutor is the referee between the citizen and the cop.