Ramesh Nyberg
What It Takes to Make a Case Stick
Have you ever gotten pissed off at the prosecutor?
My guess is that, if you have been in law enforcement for more than three years – and especially if you’ve worked in an investigative capacity – you’ve had your share of frustration with them. They are, after all, the people whose job is to vigorously pursue a conviction of the people we worked hard to put in handcuffs. Our work is stressful, grueling and often life-threatening. And, more often than we like, that prosecutor drops the charges or tells you, “There isn’t enough here to go to trial.”
This issue’s column is probably aimed more at newer officers, but not exclusively. Cops of all levels of experience grumble and gripe about this issue, so it’s worth exploring. Let’s look first at what the broader responsibilities of a prosecutor’s job are and then let’s look at the way our own law enforcement agencies might have fallen short in preparing us for these interactions.
In Florida, we have the State Attorney’s Office, not “District” Attorney, but they are one in the same: Their job is to prosecute criminal cases. The first step in that job, however, is to carefully vet those cases. They have to meticulously look at all of the evidence you bring them – physical as well as testimonial – and make a crucial assessment: Can they prove this case to every one of six (or 12) jurors beyond a reasonable doubt? We cops sometimes get tunnel vision; our arrests are the most important things we have going on. And, they are important, but keep a few things in mind. Prosecutors work for an office headed by an elected official and, if they start taking any old case which comes their way, they’ll start losing more of them in trial. Acquittals look bad and too many of them causes the public to lose faith and trust in the process and the people responsible for it.
I spent 22 years of my career as a homicide investigator during a period when our jurisdiction’s homicide rate ranked among the five highest in the nation from 1980 through 1988.
We were lucky that our State Attorney’s Office was one of the most well trained, highly respected prosecutorial entities anywhere. More importantly, we had, at that time, an excellent working relationship with them. When a homicide case came to their office, they wasted little time in getting us in for a “pre-filing conference,” a meeting in which they could discuss the case in detail, face-to-face, rather than just rely on what was in the reports, photos and witness statements. They wanted to hear the complete story from us and that meant everyone on the case, not just the lead investigator. They knew that the defense would soon file for discovery (if they hadn’t already) and that the defense counsel was going to dissect every word of the case file to find inaccuracies, discrepancies and contradictions. It wasn’t a game of chess as much as it was a match of wits: How do I fix things so you can’t break them? This could be a long, arduous process with many meetings and we would repeat the process again, this time in pre-trial conferences to make sure our game plan was tight, we were all on the same page and we knew what the other team was going to try and capitalize on. I never went to trial thinking we weren’t ready.
That doesn’t mean we didn’t have disagreements. Oh, my, we sure did! And they could be intense. I can remember more than one time when voices were raised and curses could be heard coming from a prosecutor’s office. But, that was actually a good thing. It meant both sides were passionate about getting the job done and equally committed to making sure it was done the right way.
This brings me to police training. I learned a lot about the law during the hundreds of conversations I had with prosecutors, whether we were sitting in their offices or grabbing lunch at a place near the justice building. These were people who went to law school and they understood the nuances of the law the police academy didn’t have time to teach us. Our academy was 22 weeks long when I attended from July 1979 to December. I was fascinated by the constitutional law part. They taught us about Terry v. Ohio and, of course, Miranda. But, beyond that, there wasn’t a ton of time for other legal principles. The rest of it we learned on the job and, often, in those cramped offices of the State Attorney. Some of those lessons shocked us.
One case we worked on for 17 years drove this point home in the most emphatic terms. We rejuvenated the case and got a DNA hit that identified our subject. We hadn’t quite gotten enough probable cause to charge him with the murder yet. We were close, but in the words of the prosecutor assigned to the case, “I’m not comfortable with this yet. If we go to trial, I would feel better with more. Keep working it.”
We did just that; we found an ex-girlfriend (oh, how we loved finding ex-girlfriends, especially when they had an ax to grind!) in Chicago and she told us on the phone she had information for us. We flew up to Chicago and had a great interview with her. She was with him during the time of the murder and she remembered him telling her that he once killed a man in Miami during a burglary. The times and circumstances he described to her all fit. Her story, plus DNA and some other circumstances, gave us the PC we needed. We hired a stenographer in Chicago and took a great sworn statement from her. The steno typed it up and we flew home on cloud nine, because now we could go to the prosecutor and charge him with the murder. The prosecutor was happy and said that her statement pushed it over the edge. Come trial time, we couldn’t get ahold of the woman. After numerous attempts, we had the Chicago PD detectives try to find her – and they did. She had been murdered in a domestic fight with her new boyfriend.
But, we said, we have her sworn statement, all typed up and signed by her. Sorry, the prosecutor said, we can’t use it in court. It’s an “out of court” statement and, courtesy of the Sixth Amendment’s confrontation clause, it would be a violation of the defendant’s “right to face his accuser.” The typed statement served only as a documented way to see what she said. It does not qualify as evidence. Defense counsel can’t cross-examine a stapled bunch of papers.
Frustrating? Sure. But, these are the types of legal principles it would be helpful for us cops to be more familiar with before we go and talk to prosecutors. The Supreme Court archives are replete with case after case in which police officers erred – or outright broke the law – for lack of knowledge and their cases were thrown out or the convictions were reversed. In the Sixth Amendment example you just read, the landmark confrontation clause case occurred as recently as 2004, in Crawford v. Washington. In that case, a witness’ tape-recorded statement (she could not testify because of marital privilege) was played for the jury and he was convicted. But, SCOTUS reversed the conviction: The recording was inadmissible and could not replace a live witness.
There are many, many other instances in which our police training could be better in these areas, so that we can avoid wasting time and energy arguing with prosecutors who are simply helping us stay within the boundaries of the law. Brady issues, search warrant guidelines – they all serve an important purpose. Mapp, Miranda, Brady, and others forced our profession to be better and work harder. Some prosecutors can be a pain in the ass, yes, but we don’t help matters by coming in blind to important legal decisions which are in place to create due process. In a way, that knowledge can be considered the ounce of prevention which is worth a pound of cure.
After all, if we end up sitting in that defendant’s chair, we would sure like these protections to work for us, wouldn’t we?
Ramesh Nyberg retired from law enforcement in November 2006 after 27 years of police work. He lives in Miami and teaches criminal justice at a local high school. He also teaches regional law enforcement courses through Training Force, USA. He enjoys getting feedback from readers and can be reached at ramesh.nyberg@gmail.com. Also, Ram has written a new book, Badge, Tie and Gun: Life and Death Journeys of a Miami Detective, which is available on Amazon in both Kindle eBook and paperback. You can find it by visiting amazon.com/dp/B0CTQQKQTV