Identifying The Scent

Justice Robert Jackson At the Nuremberg Trials

David Boeri and David Frank’s article Ortiz Under Fire was about three cases where the defense lawyers who won them suggested that had they been properly vetted the charges never would have been brought. To me, that’s a devastating charge. The consequences of being charged with a crime: destruction of reputation, depletion of assets to defend oneself, devastation of health, and direness of prison demands that no person should ever be charged with a crime at either the state or federal level unless the prosecutor is as close to certain as one can be that the person committed the crime. That is at the core of the being a good prosecutor.

For lawyers to suggest their clients should not have been charged and they prove it by having judges decide the evidence is so bad no reasonable jury could convict on it, is a serious condemnation of a prosecutor’s office.

Having strong evidence of a crime is but a first step. Other decisions are then required. First not all crimes should be charged. Next, the charges should reflect the crime and the person. It serves little purpose as we saw in the Aaron Swartz case where an otherwise law-abiding citizen known for his brilliance committed something amounting to little more than a prank ended up facing 35 years in prison and when he didn’t fold the charges were upped to fifty years.

I again refer to what Justice Robert Jackson told the US prosecutors. He said that a “citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”  He introduced that statement by saying, “The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway.” 

It seems to me that Carmen Ortiz fits into that class of people who just can’t understand what it takes to be a good prosecutor. I say this not from the results of her cases. I am judging her ability from her own statements. She really doesn’t get it.

In the Catherine Greig case she justified recommending ten years in prison for this woman with no criminal record because she went off and lived with Whitey who Ortiz said was accused of 19 murders. When Greig fled with Whitey no one had publicly accused him of murder. It was years after she left that accusation first came up. There has been no evidence ever shown that she ever knew Whitey was accused of  murderer or believed the accusations even if she knew.

In the Aaron Swartz case she justified the harsh charges against him on the basis that“Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”  Even a child knows stealing is not stealing and the degrees vary immensely as do the motives.

In Caswell Motel case she said the Town of Tewksbury had been “plagued for decades by the criminal activity at Motel Caswell,” and added that the “ongoing criminal activity at Motel Caswell that spanned nearly 30 years without any effort by the owner to be addressed.’’  The judge hearing the case found there were 15 incidents of drug related activities in 14 years of which 8 would not support a forfeiture and concluded that Ortiz’s actions in bringing the case were all but preposterous. 

Boeri and Frank write about a case her office brought against a lawyer for a biotech company. the judge ruled there was no credible evidence the lawyer was guilty saying he had never ruled like that before as a judge. Ortiz responded, “I think that case should have gone to the jury, and then we would have had a better understanding as to what would’ve happened in that proceeding.” How could Ortiz possibly think a jury could find the person committed the crime  beyond a reasonable doubt when a judge cannot find any “credible evidence” the person did it.?

In a similar case mentioned in the Boeri and Frank article she pats herself on the back for dismissing a case where the defendant was being accused of defrauding seven doctors and the doctors had never been interviewed by her prosecutors. She says “I made . . . a fair and right decision.” But she goes on, “I think others in my seat would not have been wrong to say, “Let the jury decide.”

Imagine that! The right decision according to her is to dismiss the case but someone deciding otherwise would not be wrong. How does that make sense? How can it be right to stop the wrongful prosecution of a person yet also be right to  continue the wrongful prosecution of that person? How does her idea that passing the buck to the jury make sense?

She wants juries to decide weak cases. How can a jury find beyond a reasonable doubt in these type cases? They can’t and that’s not a jury’s function. It is her function to bring solid cases not only against professional people but everybody.

This isn’t a game. Lives can be ruined by such a cavalier attitude. She has to be convinced beyond a reasonable doubt in the calm of her office that a crime has been committed. If she isn’t the case is over. She can’t pass the buck to a jury hoping it will figure out what she can’t. Why does she think she is in that office?

In my book Don’t Embarrass The Family I write about the trial of retired FBI Agent John Connolly and how the witnesses, especially retired FBI Agent John Morris, would say they lied in the past but are now telling the truth. I’ve wondered how the prosecutors thought a jury could determine that this time the liars weren’t lying.

Looking at the thinking of Ortiz I figured out the answer. The prosecutors don’t care. They are taking the evidence the cops give them and because as Judge Jackson suggests they are incapable of understanding what are “[t]he qualities of a good prosecutor” they pass the cases over to the jury to make a decision. They apparently have no idea that a prosecutor has a role in trying to seek the truth. Good prosecutors do not rely upon a jury to tell them whether they are right or wrong as Carmen Ortiz seems to think. They know it in their bones.


  1. Above you write:”The consequences of being charged with a crime: destruction of reputation, depletion of assets to defend oneself, devastation of health, and direness of prison demands that no person should ever be charged with a crime at either the state or federal level unless the prosecutor is as close to certain as one can be that the person committed the crime. That is at the core of the being a good prosecutor.”

    It would appear that if one prosecutor chooses to bring forth lying testimony into court, that lie begins to metastasize throughout the court systems…to include both Federal and State courts. The question that I have is at what point, and on whose watch, is the first lie corrected?

    It is now clear to me, in my situation, the prosecutor in my case was able to rely upon a trumped up psychological diagnosis which was predicated on my assertions that were, in part, contrary to the FBI’s position with respect to John Iuele. If there is no definite answer as to whether John Iuele was an alias for Whitey Bulger, how can I have been declared, in an order from a State Court, to be ‘not competent’ as a final diagnosis; if, the answer has yet to be clarified officially by the FBI, or Mr. Bulger himself. And, even if John Iuele is not Whitey Bulger, it still does not explain the relationship that former FBI agent John Connolly had with John Iuele.

    Clearly, my prosecution that has ended my ability to exist as an independent person has done irreparable harm to me. But, the hope that this damage will be acknowledged is quickly fading.

    Unless a great effort is made to correct the lying testimony of some of the witnesses that have been discussed in your recent blogs, then it would appear that the cancer (lies by comisson and omission) that is spreading has already had unintended consequences to others who have no other means of defense but to rely upon the rule of law, and those who have sworn a duty to uphold it in court.

    And, as you have opined, the prosecutor in criminal court is the first and last line of defense for the rule of law, and justice.

    • Jean:
      The prosecutor is really the one who should be the penultimate line of defense. The courts should be the last line. But when the courts go along with whatever the prosecutors decide and the attitude is that any mistakes will be corrected by a jury then we have a recipe for all sorts of harm. If evryone did the job that they were supposed to do this would not happen but as we’ve seen that is not the case.

  2. William M. Connolly

    Great post, Matt.