The Prosecution Business is Tough (6/22/00)

I have a secret to reveal: The businesses of prosecution is becoming tougher.

I even think I know why.


A couple of weeks ago, Lindy (the assistant DA) and I tried Clayton Munger on the charge of aggravated assault. When all was said and done, he was convicted of a Class C misdemeanor. After some reflection, however, I don't think the facts of that case were much in dispute. Sure there were a couple of discrepancies, but anyone who watched the trial has a very good idea as to what went on within that house.

One of those facts, which apparantly became significant although technically irrelevant, indicated the victim had a blood alcohol concentration of greater than .30. There was even evidence that she was an alcoholic. Munger, on the other hand, had no criminal history and a steady history of gainful employment.

In the end, the jury simply didn't become angry about the conduct of the defendant as described in his written statement.

I see this as a developing trend.

The crime had better be something horrendous, the defendant a truly "bad" man, and the victim need be as innocent and pure as a school girl. If anyone of those factors are not present, the prosecution might as well be rolling the dice in Las Vegas. Anything can happen.


Ten years ago, a common defense tactic during jury selection would be to ask the panel "Who believes a police officer is more likely to tell the truth than an average witness?". If a juror believed this, he would be disqualified. Unless I had gone over the subject with the jury panel before the defense lawyer asked his question, there would be many, many jurors answer the question in the affirmative.

My have things changed.

I hardly ever hear the question anymore. In fact, I have seen the jury panel break out in laughter at the notion that a police officer is more trustworthy than the average citizen.

But the public has every reason to be skeptical.

The list of cases which have led to bad police officer press coverage over the years is endless:

And those are just a few incidents that I can recite off the top of my head.

When my case lives or dies on the testimony of police officers, the current public sentiment does not make prosecution an easy job.


People hate their government. Always have. Always will.

The public is taxed to death by their elected officials and they never have any opportunity to simply say, pardon the vernacular,  "cram it".

Well, almost never.

When it comes to a jury trial, the public gets the absolute final say on whether they wish to vote in the manner that their government desires. Hey, I represent the "State" and I try to convince the jury that the facts are as the "State" sees them.  Sometimes I believe they relish in the chance to simply say, "we don't buy what your selling".

When a trial starts up, I'm not overwhelmed with a feeling of "these people are on my side". No way. They look at me and see a lawyer/politician who is paid with taxpayer dollars. (Over $100,000 a year of their hard earned taxpayer dollars). Those factors don't exactly endear me to a twelve person jury who have been taken away from their jobs because of jury service.

I understand their resentment.


The standard of proof in a criminal trial is "beyond a reasonable doubt".

In theory.

I have seen that standard, from a practical standpoint, become more and more stringent over time. Juries want to be absolutely sure - one hundred percent convinced - no chance that their verdict is wrong.

To a certain extent, I don't blame them. Executions have been put on hold in Illinois because the governor believes the system is faulty. DNA testing is clearing people left and right who have sat in prison for years. Just this week, Jennifer Thompson appeared on NBC's Today where she spoke of how she honestly but incorrectly picked her rapist out of a line up that led to his incarceration of 11 years in prison before DNA exonerated him.

The current cause celebre is Gary Graham who sits on Texas death row. Why the uproar? There was only one eyewitness to the crime, and the growing objection to his execution is that one witness is not sufficient proof. Eyewitness testimony is no longer good enough for some.

This morning, the Dallas Morning News reported that 57% of Texans believe that the state has executed an innocent individual.

The public believes wrongful convictions have occurred in the past and, given the opportunity to serve on a jury, they are not going to make the same mistake. If this increases the burden of proof on the prosecution, so be it.


Eight years ago, shortly before I took office, I was speaking with another assistant DA in Tarrant County about my upcoming employment adventure. I remember telling her that I felt an awesome responsibility because "the folks back home" would be very trusting of the prosecution. Consequently, i told her, I needed to be absolutely certain to never prosecute a possibly innocent man because I could probably get a conviction.

I was very naive.

To quote the judge from the famous movie/novel Presumed Innocent when he spoke of the District Attorney: "Ladies and gentleman of the jury, Mr. Della Guardia has spoken about a certain glass that you have yet to see. I am instructing you that until that glass is produced as evidence, you will consider his statements for no purpose whatsoever. Just because Mr. Della Guardia says it's so, doesn't make it so".

The juries of today don't require a similar instruction.

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

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