The Right Thing To Do (8/13/97) 
Last June, an out of state prosecutor was jeered by a crowd after
completing a trial of a defendant accused of sexually assaulting
a child. Some of the vocal critics called for the immediate
resignation of  the female district attorney. Others called her "an embarrassment".

What had happened? Such a vocal attack would, at first blush, lead
one to conclude she had lost the case. What else could draw the
wrath of the law abiding public?

But the prosecution had been successful. She had convinced a jury
of the defendant's guilt, and although the punishment had been
"only" probation, the crowd was not angered about the sentence that
the defendant received.

Those comprising the makeshift mob were upset about the defendant
being prosecuted. Period. They thought the justice would have been
better served if the defendant had simply been left alone.

What's the background, you ask? The 22 year old defendant had had
consensual sex with his under 17 year old girlfriend. This, even in
Texas, is a crime under the written letter of the law. To
complicate matters, however, his girlfriend had become pregnant,
but the defendant had accepted responsibility for his actions and
the two had married.

The bride and her parents did not desire criminal prosecution. The
prosecutor in the case, however, was not swayed.

Now the new husband and new father also has a new felony

And the public, in general, was not happy. Rightly or wrongly,
the general consensus was that two young people had  made a
serious mistake, but a criminal prosecution, the public believed,
would serve no purpose.

The entire scenario gives rise to some interesting legal and
ethical questions. If the facts demonstrate that a penal law has
been violated, should the State always file charges?  If not, are
we condoning a system wherein the prosecutor, in essence, decides
what the law is?  Should the prosecutor be allowed to decide that
a criminal prosecution would not "be the right thing to do" even if
a crime has technically been committed?

An example of this "prosecutorial discretion" occurred last week
when the Tarrant County District Attorney's Office filed charges
against Barry Switzer for the much publicized misdemeanor offense
of unlawfully carrying a weapon. They declined, however, to file
the third degree felony offense of unlawfully carrying a weapon in
an airport. This was clearly a decision on the part of the
prosecutor based upon matters other than the true facts. After all,
if he is guilty of unlawfully carrying a weapon he must also be
guilty of committing the offense in the airport. Nevertheless, the
D.A.s office apparently believed that the lesser charge was, once
again, the right thing to do.

To bring this matter closer to home, former Wise County Attorney
Stephen Hale refused to prosecute marijuana possession cases if the
amount possessed was under four ounces. He also believed his
inaction was the right thing to do even though the marijuana
possession is clearly a crime. Some people in the county were
outraged that he exercised this discretion while others were
apathetic.  (Hale lost his re-election bid by less than four hundred

Consensual sex among young people, misdemeanor marijuana, and Barry
Switzer. What a combination.

But in each situation, a prosecutor had to decide whether
he/she would file charges based upon the black letter of the law or
take an alternative route based upon what he/she believed was the
correct thing to do. One was jeered for following the written law,
one may have lost an election for ignoring what it said, and one
(perhaps wisely) took a middle of the road stance.

Admittedly, the cases that factually constitute a crime but result
in charges not being filed because of mitigating factors are few
and far between. But when they do come across my desk, they can be
gut wrenching in their own right.

We all have certain factors in mind when we think of a competent
prosecutor: Trials skills. Educational background. Experience. They
are all important attributes of a district attorney. And although I not
willing to profess that I am accomplished in any of the three, I have
come to believe that good judgment is the most important factor of all.
After all, the other skills are useless if good judgment does not control
how those same skills are exercised.

One out of state prosecutor decided to follow the written law. She
might have believed she had no choice because "the law is the law",
or she might had even felt that it was the appropriate thing to do.
Nevertheless, because of her decision, the former defendant must
admit to all prospective employers that he is a convicted felon. He
told reporters that, when the time was right, he would someday
explain to his son what had happened.

The D.A.'s trial skills allowed her to obtain a conviction. Some will
wonder, however, if it was the right thing to do.

Barry Green is the District Attorney for the 271st Judicial District.

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