The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.Berger v. United States, 295 U.S. 78, 88 (1935).
A couple of weeks ago, I wrote briefly about a police department in California that was making a game out of drumming up arrests. Now comes word of a scheme even more unethical, from Colorado, where a district attorney is paying bonuses to her underlings based on how many convictions they get:
Eighteenth Judicial District Attorney Carol Chambers has created an unusual incentive for her felony prosecutors, paying them bonuses if they achieve a predetermined standard for conviction rates at trial.The perverse nature of this scheme, for an office full of people supposedly devoted to justice, rather than padding stats, is obvious, as another DA points out:
The threshold for an assistant district attorney to earn the average $1,100 reward: Participate in at least five trials during the year, with 70 percent of them ending in a felony conviction. Plea bargains or mistrials don't count.
[Boulder County District Attorney Stan] Garnett pointed to the same American Bar Association directive for prosecutors as State Public Defender Doug Wilson did. In essence: Seek justice, not merely conviction.The pronouncement from the Supreme Court in Berger couldn't be clearer. Dangling money in front of someone to achieve something potentially contrary to their ethical duties is obscene. No assistant prosecutor should ever be put in the position where he wonders about whether the push a case or not because he needs the money.
"If you're to seek justice and yet your pay is based on the number of cases you take to trial or your conviction rate, then it clouds your discretion," Wilson said. "They have an incentive not to make a reasonable disposition if they need one more trial or another conviction in order to get a bonus."
The title of this post is a bit of a joke, in a couple of ways. For one thing, of course, I lose an awful lot of cases. Such is the lot of a criminal defense attorney - it's not a profession for the easily discouraged. For another thing, and more relevant to this discussion, however, I cannot accept a fee in a criminal case that is contingent on the result. It's right there in black and white. Not that it should have to be.
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