Under Analysis- That's not justice for all

   Now that the midterm elections are over, it seems like a good time to think about prosecutors, public defenders, life choices, and what winning really means.
   A few days ago, the morning headline read, “Murder Conviction is Ruled Wrongful”.  I’m a true believer in our criminal justice system, but none of us can ignore the increasing regularity of discovered wrongful convictions.  Tough on crime is good.  Tough on the innocent is very bad.
   The recent headline concerned Dale Helmig.  He was convicted, according to Judge McElwain, due to false information and prosecutorial overreaching.   Helmig’s prosecutor, Kenny Hulshof, was later elected to the United States Congress and then ran for Governor.  Last year, a different judge set another defendant free, after criticizing prosecutor Hulshof for withholding evidence.
   In the Helmig case, a highway patrolman testified that Helmig had not even denied killing his mother.  Judge McElwain wrote that the trooper’s testimony “was completely false”, and that neither prosecutor, nor defense counsel corrected the false information at trial, “although both were constitutionally obliged to do so”.  Because Helmig had stayed away from his mother’s house during the police search, at trial, the prosecutors presented that fact as “consciousness of guilt.”  Judge McElwain pointed out that the sheriff had told Helmig not to bring his children to the scene.
   Helmig was living with his mother, but had slept somewhere else the night of the murder.  Interestingly, his mother was in the middle of a divorce, had sought an order of protection against her husband, and had asked the sheriff how to purchase a handgun.  Information from witnesses who would have testified Mrs. Helmig had expressed fear her husband would kill her – just days before the murder – was not disclosed to the defense.  She was found in a river, tied to a slab of concrete.
   It seems like only yesterday I was in line registering for my first law school class.  I was positive I was going to be the next Perry Mason.  For those of you who just said to yourselves, “Who?”, and are familiar only with TV’s airbrushed lawyers of Law & Order, Perry Mason was television’s first weekly trial lawyer.  He always represented the falsely accused, and never failed to corner the bad guy into admitting to the murder in the last two minutes of every show.
   Somewhere along the line I got diverted toward the “silk stocking” practice of the law.  I have no complaints, as I’ve been able to represent lots of inspiring individuals and many great companies.  Cases have been diverse, interesting, challenging and rewarding.  Still, trials have been once or twice a year occurrences.  I never had the experience of trying case after case, that is often the life of prosecutors, public defenders and private criminal defense lawyers.
   Sometimes I remember I ranked criminal law class and wonder how it might have been.  Sometimes it crosses my mind that I could give up all the “prestige” of my current practice and start trying a lot of cases.  I would enjoy that, but don’t get me wrong, I don’t dream of becoming a criminal defense lawyer.  I learned very early on, that unlike Perry Mason’s unique clients, almost all of my clients would be guilty.  If I were to get into criminal law, I would prefer to be a prosecutor.  Even though there is crucial work being done by public defenders and private defense lawyers, I’d prefer working to make criminals accountable for their wrongs.  Of course, in my dream, I wouldn’t be a prosecutor who wanted to win every one of his cases, no matter what.  Rather, I would be a prosecutor whose mission was to see that justice was served in every case.  Some prosecutors need to re-learn what “winning” should be for a prosecutor.  “Winning” is making sure all the facts are known and obtaining a fair result for the victims.  Above all, for powerful government lawyers, “winning” is convicting the right person for each crime.  In my book, if the prosecutor convicts the right person 99 times, but on the 100th time, puts an innocent person in jail for killing his mother, the prosecutor’s balance sheet is in the negative.  Can any of us imagine spending our life in prison for killing our mother when we didn’t do it?  What would it feel like to be wrongly sentenced to death based upon the testimony of a “snitch witness” who was offered a deal?  An ambitious prosecutor must learn to temper his or her zeal with the realization that justice is the goal, not visceral victory.
   I probably missed out on my chance at being a prosecutor, and I never could convince any of my daughters to become lawyers at all.  However, my stepson Patrick is applying to law school.  I helped secure him an internship with the County prosecutor this fall, and I just may encourage him to become a prosecutor when he graduates.  Of course, I’ll constantly be warning him about what “winning” really means.

©2010 Under Analysis LLC Mark Levison is a member of the law firm Lathrop & Gage LLP.  You can reach Under Analysis LLC in care of this paper or by e-mail at comments@levisongroup.com