Prosecuting attorneys are held to a higher ethical standard than any other attorney due to the vast power that is inherently provided by the position. I am honored that the people of Uinta County have bestowed the obligation of this office upon me and take my responsibilities very seriously.
My “approval ratings” are specifically exempt from my ethical performance of my duties. I will not comment on any particular case but any opportunity to increase interaction with the criminal justice system and, hopefully, educate the public as to the process to which we adhere is a benefit.
Thus, there are two very different issues that have been presented that are currently of general discussion. One involves the purposes of sentencing and the other involves the procedural aspects of a jury trial and the byproduct of that trial.
Sentencing considerations for the readily provable case with hope of reform of defendant
Due to quality work from law enforcement, there are times when the weight of the evidence against a defendant is overwhelming and a conviction seems imminent. It is natural to wonder why such defendants may receive sentences that appear to be “light” considering the crime. It’s important for everyone to remember that a prosecutor’s duty is to seek justice — not a conviction — and that the overall intent of the criminal justice system must be considered.
With rare exception, the primary purpose of sentencing is to reform the defendant to a productive member of society who will harm no other person or thing. People, in general, do not wake up one morning and decide to commit a crime. That does not mean they don’t act knowingly or with intent with the commission of the act but, even in murder cases, rarely is the crime planned out and premeditated hours or days in advance. Simply put, people make mistakes and the criminal justice system is supposed to recognize that fact.
The prosecutor has an ethical obligation to engage in communication to resolve the matter. This doesn’t mean the prosecutor must agree to a sentence that he doesn’t agree with but the conversation must occur.
Any plea offer must address the factors of sentencing that will be considered by the court:
• Nature of the offense
• History of the defendant
• General deterrence
• Specific deterrence
The first factor is obvious; is it a property crime, a crime against a person, or against society (in the case of controlled substances)? What was the nature of the damage or injury and what are the long-term consequences? The history of the defendant is similarly clear. Was the defendant subjected to abuse or neglect? Do they have a substance abuse problem contributing to criminal behavior? Do they have a support system? Do they have a mental health problem? What is the nature of the prior criminal history?
Punishment is also easy to understand. This is the biblical “eye for an eye” and addresses solely the provision of confinement for the sake of retribution and has no consideration for whom the defendant will be upon release.
The remainder may be more difficult to understand. General deterrence seeks to provide a “message” to the public that there are consequences to criminal conduct. Specific deterrence relates to the individual defendant; how can the system reform him so he doesn’t reoffend? Rehabilitation considers reform of the defendant into a productive member of our society who will live a crime-free life; thus, substance abuse treatment, vocational training, addressing unstable housing, counseling and mental health care. Finally, restitution is monetary compensation in an attempt to make the victim whole again.
Every sentence should strive to address all of these factors. No one has the benefit of a crystal ball, so it is unlikely that anyone knows with certainty if the sentences imposed will meet the goals. I know that I am human and can only rely upon my education, experience and “team” to do my part.
I am confident, however, that the sentences that I formulate address all the factors I am supposed to advise the court of and consider in making a plea offer. For those who are successful in the reformation desired, our community is safer. For those who are not successful, however, the prosecutor can ask the court to send the defendant to prison.
While I understand and empathize with victims and families who express dislike for what seems like a “light” sentence, the reality is that it is exactly what is required in nearly all of our cases. Further, I am confident that if you had a loved one sitting in the defendant’s chair, for whatever reason, you would want him to have a chance for redemption.
Sentencing negotiation in cases where there may be trial issues present
There are a number of factors considered before taking a case to trial. Generally, people are unaware of the rules of evidence in a courtroom but there is a lot of rumor, statements and speculation in social media that will never appear in a case. In most cases, particularly sexual abuse or assault, a victim must be called to testify at trial. The vast majority of these cases involve no physical or forensic evidence; therefore, the trial itself becomes a determination of who is more credible — the defendant or the victim.
When the victim is a child, the first issue is competency. There are no hard and fast rules utilized to make this consideration, but age tends to provide a guideline on where, developmentally, a child should be.
It is critical that the child be able to vocalize understanding and respond to basic questions, know right from wrong, comprehend the trial process and the difference between a truth and a lie. In assessing issues for trial, I consider whether the child will even be allowed to testify and, then, if he or she will be able to actually do it.
I cannot present recorded statements of the victim unless the victim has already testified and, even then, I can only present those recorded statements in limited circumstances. Similarly, a parent, teacher, counselor, etc., cannot testify on behalf of the child unless the child has already testified and only if the veracity of the child’s testimony is questioned.
Trauma is something most jurors don’t understand. Trauma is the reason for delayed reporting. Trauma is often the reason that a victim — adult or child — does not react or behave in a manner that you or I may expect. Victims don’t always cry. Sometimes they laugh. Sometimes they can remember every detail every time and sometimes they can only recall generalities.
By the time we go to trial, I am familiar with the victim’s trauma response and can try to help them through testimony. The judge and, more importantly, the jury, do not know the victim or why they react to certain questions or tones. The victim is on the stand for a short time and does not interact with the jury personally. The prosecutor is specifically prohibited from leading the witness through testimony. The pressure for the case, for all the evidence that will matter in a he-said/she-said presentation is on the victim.
If I were one-on-one speaking to you, I would put it this way: Imagine being called to testify. You know that each and every word that comes out of your mouth is going to be interpreted and scrutinized in ways that you cannot control or anticipate. Two lawyers whom you barely know, if at all, are asking you questions and you just know, deep in your heart, that one or both of them is going to try to get you to say something that, maybe, just maybe, you don’t actually mean.
For certain, the attorney for the defendant is going to try to get you to say something you shouldn’t. Think about that stress. There are 13 people you don’t know judging your every word. There’s a judge scrutinizing your words and ruling on things that you do not understand. The defendant is sitting at his table right in front of you and you desperately try to avoid looking at him or her so that you can make it through without getting too emotional — whether that emotion is fear, anger, rage sadness.
Can you imagine?
Now, let’s take it one step further. You, an adult, are on the stand answering detailed and specific questions about each and every touch, movement, kiss or contact that you have in the course of you engaging in oral, anal or vaginal intercourse.
Surely, it would be intimidating in the least? It would be embarrassing, traumatic, and, potentially, humiliating.
Now it’s one step further — even as an adult — because the intimate and personal details you are describing are not about a consensual encounter but, rather, an assault that you had no control over. Now, again, the control has been taken away from you. In order to attain a conviction, your testimony is crucial and must be believed in order for you to find justice for what has happened to you.
Can you imagine the amount of pressure that you put upon yourself?
Finally, consider that you are a child. Your entire world and self-worth are guided by the acceptance and support you receive from the adults you trust. You know that those adults are expecting you to do this. You’ve been told you must do this or the bad person will not be punished.
Can you imagine the stress and trauma that child faces — no matter what the verdict?
That is the trauma we subject each and every victim of sexual abuse or assault to in our courtrooms. I am always so proud and amazed by how brave these men and women, young and old, are to be able to make it through that process and pray for them to have closure and healing.
An adult victim can understand the process, the risks and guard expectations. A child, due to cognitive ability or teenage bravado, cannot fully appreciate the emotional impact and vocalize desires about prosecution. Therefore, in each case, I am constantly trying to assess what emotional impact the prosecution is having on the victim versus the damage that has already been done by the perpetrator.
If there is a time when I truly believe the victim cannot or may not be able to get through the testimony, I must evaluate options to ensure the perpetrator is held accountable. That is where plea offers come into play that, to the public, may not seem sufficient to fit the crime. Alas, at times, saving the victim the trauma associated with testifying, shoring up the risk of no evidence because a victim freezes, or the risk of acquittal based upon the other dozens of factors considered by the jury is worth public dissent.
Over the past 18 years, I have seen evil and I have sat across from it. I have seen bodies broken and mutilated, been to multiple autopsies and viewed countless photographs of gruesome clarity. The most difficult part of my role in the justice system, however, has been sitting in a room with a victim of sexual assault or abuse after a jury has acquitted their perpetrator.
It happens frequently, unfortunately, in sexual abuse and assault cases. To bear witness to the utter devastation of a person who has bared their soul, allowed the most intimate and humiliating details of the most horrific moment in her life to be told in open court and to have the 12 people that matter not believe that your word is enough … that will break anyone.
Seeing that evisceration of a person’s self-worth, heart and confidence by those simple words, “not guilty,” is the most painful aspect of my job. The shattering of a person from within is ever more gruesome than any murder scene. You can imagine how this is compounded when my victim is a child.
I hope no one has to experience that moment and I vowed long ago to use my discretion and judgment to save each and every victim of crime from that moment if it is in my power. That vow cannot be swayed by anyone.
This may not always be done to the liking of the public and, frankly, I may not always be right. What I can do is promise you now, as I always have, that I will fully and thoughtfully consider all these things each and every time and with each and every case.