Mark S. Pollock*
It has been stated that the law is whatever is
forcefully asserted and plausibly maintained. In our adversarial system,
the role of the lawyer is to zealously and forcefully assert and advocate
the position of his client, and to win.
Prosecutors are lawyers, hired to represent the People
of the State and to act as the people's advocate. But prosecutors fulfill
a second, equally important function. An honest prosecutor is the
strongest fortress and protection for the integrity of the Constitution of
the United States.
The role of a prosecutor, then, serves two masters. First, the prosecutor has an obligation to attempt to present evidence to
courts advocating the people's position, upholding the law, and obtaining
convictions for violations of the law.
Second, and no less importantly, the prosecutor has an
obligation to oversee the investigation of crime. Where it appears that
the investigation has violated the constitutional rights of suspects, the
prosecutor then has an obligation to the People of the State to take
whatever action is necessary and appropriate to remedy those violations of
individual rights. This is called prosecutorial discretion, the right and
sometimes the obligation of a prosecutor to reject a case which has been
referred by a police agency because rights have been violated as part of
the investigative process.
There are those prosecutors, who, like defense
attorneys, feel that their ethical obligation to the client (the people) is best served by doing whatever is
necessary to obtain a conviction. They therefore do the best they can to
obtain the maximum penalty for the violation.
However, there is another school of thought. There are
those prosecutors who feel they serve a higher master. There are those
prosecutors who take very seriously the oath to defend the Constitution of
the United States and the Constitution of the state in which they were
sworn. These prosecutors perceive their duty and obligation as one of
presenting honest evidence to a court in order to obtain justice. They
perceive that their role often may be served by not filing a case or by
dismissing a case when evidence of impropriety arises in the course of the
development of the case.
This second perspective is not to be confused with the
concept of "coddling criminals."
The wise prosecutor seeks to serve all three functions
by obtaining a conviction and an appropriate penalty, thereby benefiting
the society which pays him. Again, in requesting a sentence and a
commitment of a defendant after conviction and bowing to public outcry
instead of taking into consideration the need for rehabilitation of an
offender, the prosecutor may be overlooking his ultimate obligation.
The prosecutor must not act as a private attorney on behalf of victims of crime, but rather, as an objective advocate on behalf
of the interests of the society itself and all the people.
No case, no facts, no sentence, no victory in the name
of the people, can be so compelling as to warrant the discarding of our
constitutional integrity in order to obtain it.