What Can Victims Do if the Prosecutor Doesn't Understand the Law

[victim789]

The assistant D.A. admits he doesn't undestand the new laws he's having to work with and the public defender basically gave him an embarrasing beat down. We, the victims, feel that the prosecutor was incompetent and did not try to affect adequate justice.

We feel we were victimized twice - once by the violence of the murderer, and once by the prosecutor who made little effort, had extremely poor communication, and makes us feel like we've been victimized a second time by the justice system.

What does a victim do when his representative doesn't try or is incompetent?

[aardvarc]

Realistically? You write a letter to his boss, the DA, and to your state legislator, whose votes both brought the law in question into play AND who funds the Office of the State Attorney, and you complain that the left hand and the right hand are not working together.

Exactly what makes you think the prosecutor was incompetent or made little effort?

The problem with ANY new law is that there is ALWAYS a learning curve - particularly given that the people WRITING and VOTING to enact the laws have never even MET the people who must then figure out how to ENFORCE or PROSECUTE those laws. The legislature doesn't pass a law then provide training on how to apply it, how it's supposed to work, or anything else. They write it, pass it, and its out of their hands. Then, the prosecution, who has no PRIOR case law to build on, because the law is new, has to try to figure it out. Even the most seasoned prosecutors struggle to work under laws that are vague, contradictory, or otherwise problematic (hence why the Supreme Court is constantly having to make rulings on Constitutionality and pick new legislation apart). The defense, by comparison, has the easy task.

You can certainly argue that prosecutors should be given training on new laws, but until the law isn't new anymore, there's no one to PROVIDE that training (and, taxpayers HATE funding training - they think prosecutors just pull winning cases out of their shorts on a whim). It's a catch 22. Not that any of the complications of that process excuse that problems happen and outcomes in cases suffer, but it's the system we have. In other words, just because the prosecution didn't slam dunk the defendant into the slammer for life is in no way indicitive of the amount of knowledge or effort that went into the case. With new laws, the first cases out of the gate suffer, precisely because they AREN'T understood. And they'll continue to be misunderstood until the new law is applied to a sufficient number of cases for things like the law journals and professional associations to provide guidance to those applying those laws.


So...in short...what you can do is:

In the bigger picture...

a) be a vocal advocate of taxpayers funding training for prosecutors (ie tax increases)

b) be a vocal supporter of legislation pending before your state legislature - if you read a bill and don't understand exactly what it's saying, odds are that a jury won't either, so encourage your elected officials to solicit input from those who must enforce the laws BEFORE they pass them (which they are loathe to do because they don't WANT a bunch of DAs telling them that the legislation will cause more problems that it will solve)

c) be a vocal supporter (and then back it up by encouraging funding for) of the use of victim advocates within the court system. Lack of communication is one of the fundamental complaints from those who must experience the justice system, whether they are victims, surivors, or even the defendants - everyone wants to be kept infomed of what's happening with the case. This is where having advocates on staff can be very helpful in getting this communication accomplished. You can't complain that the attorney didn't put their all into the case, and then complain that the attorney didn't do enough communicating. The more time they spend communicating, the less time they're working the case. They can do one or the other with any level of success, and most tend to put forth the effort on the case.


In the immediate picture...

a) you can notify the DA of any grievances with the performance of employees of their office (understanding the whole training issue and that no OTHER prosecutor may have achieved a better outcome...and understanding that DA routinely meet with their assistant DAs to discuss their cases, how things are going, talk over strategies, etc....in other words, the DA will already have a clue if their employee is completely imcompetent)

b) you can vote for a new DA at next election period and encourage others to do likewise (again, understanding that a new DA will more than likely face the exact same issues)

c) you can do all citizens a favor by bringing the problem of law makers and law enforcers working in a vacuum instead of WITH each other to the attention of the press, and hope that the press will raise public awareness of the issue, even if only for a short while (as is usually the case)

d) you can seek some level of justice in civil court, where the burdens of proof are much lower, you are totally in control of the case, and problems inherent in issues of criminal law are lacking

[victim789]

thanks for all that info.
is it common for the prosecutor to not include the evidence, crime scene photos, 911 call, calling the detective to testify. I dont think any of this was done in our case. Shouldn't the prosecutor call all the evidence into question in an extremely violent attempted murder case?

[aardvarc]

thanks for all that info.
is it common for the prosecutor to not include the evidence, crime scene photos, 911 call, calling the detective to testify. I dont think any of this was done in our case. Shouldn't the prosecutor call all the evidence into question in an extremely violent attempted murder case?

Depends on the case. Sometimes the evidence benefits the defendant. Sometimes the evidence hurts the state's case. Sometimes the evidence causes MORE confusion for the jury. Sometimes the evidence isn't admissible in court for hundreds of different reasons and the judge doesn't allow it to be presented. Sometimes the defense successfully challenges the presentation of evidence, and it doesn't get before the jury. Sometimes police screw up the collection or preservation of the evidence, or the lab screws up the test or the chain of custody is violated putting even good evidence in question, so it isn't used. There is also the issue that for crimes of physical violence, the use of evidence depends on what points the state is trying to prove. If they've already established who did the act, such evidence doesn't advance the case if the legal question needed for a conviction centers on things like consipracy to commit, intent, etc.


There are just way too many possibilities to be able to give an opinion on whether the prosecution in a case "should" have presented such evidence or not. But typically prosecutors don't take cases just because they exist - even violent ones...they pursue cases they think they can win, and plead out those that are questionable. For homicide cases, they have a very long statute of limitations, so they don't have to go forward until they're ready. If they took the case, then at that time they felt they had a strong case, but as you've seen above, they don't have control over many aspects, ESPECIALLY in the area of what evidence gets into court and what doesn't.

These are folks who deal with these cases and their brutality every day, they WANT to win them. They put a lot of time, energy, and time away from their own families to try to get justice for victims and their families, and to protect society from dangerous and savage persons. And they get paid 30% of what they could make working for the other side. So it isn't really realistic to suppose that a lost case means someone didn't give it their all. No one takes a job for crappy pay to be surrounded by cases of blood and guts and human suffering all day if they don't feel they can make a positive difference.