Posted by Randy Barnett:
All the Power of the State:
In closing argument, criminal defense lawyers like to contend that
"with all the power of the State at its disposal" why did the
prosecutor not produce this or that item of evidence? Well ordinary
state court prosecutors (not attached to some special unit) have very
little investigative power at their disposal. Our own "investigators"
are no Andy Sipowicz's and, once the case is filed, the Chicago Police
Department investigators, who do not work for the County, have no
obligation to to anything for the prosecutor--though many do so out of
a sense of duty to the case and camaraderie with prosecutors they
respect.
This is illustrated by the story, [1]to which I alluded yesterday,
concerning the difficult process of bringing charges against the
cousin of a rape defendant who had tried to intimidate the jurors in
the case. I wrote:
I felt obligated to have the cousin arrested, charged and
prosecuted for improper communication with a juror, which because
it was so unusual was not so easy to accomplish. But that is
another story.
To which one reader responded:
I would say: "Tell it! It sounds like a fascinating story." It's
hard for us lay folk to find interesting stories that look into the
system like this one would, and like your latest post did. So by
all means - write it!
OK, you twisted my arm, but it might not be as interesting as you
thought.
I first went to my supervisors who would have to approve any felony
charges being brought for intimidating a juror. They decided
(unsurprisingly) that writing down plate numbers and pointing after
the trial was over was not a compelling case for a felony. I searched
the statute books and found the misdemeanor crime of "Communicating
with a Juror," the elements of which seemed to fit the facts and
misdemeanors did not require a supervisor's approval to bring. (I am
relating this from memory so the title of the statute could be off.) I
then had to find a judge before whom I could swear out a complaint and
ask that a warrant be issued. There was no obvious court to go for
such a charge, but I found a judge in the building (the Criminal
Courts Building at 26th and California) who was willing to do both.
All this was the easy part.
The hard part was getting the guy arrested. You would think that an
arrest warrant would be enough, but you would be wrong. There are many
thousands of outstanding warrants and, unless there is some compelling
reason, the police are not out looking for any of the persons who are
supposed to be arrested. Most arrest warrants are served only when
someone is arrested in the act for some other crime, or stopped for a
traffic violation.
There are (or at least were in those days) "warrant officers" in every
police district, so I called several times to get them to execute the
warrant. But no luck, and no surprise. Warrant officers were not
famous for the diligence with which they performed their duties. After
a few days, I called the District Commander and offered (this is the
awkward part of the story) a week's worth of "time due" slips to
anyone who would arrest this guy. (Time due slips were intended to
compensate officers for time spent in court with time off the job.)
Within 24 hours, he was in custody.
I then needed to go to the courthouse in another part of the city
where the charges were pending to ensure that the case would not slip
between the cracks. Rookie prosecutors in misdemeanor courts might not
know enough to take the matter seriously. In addition to being
arrested and having to come to court, the guy had to hire a lawyer.
After a few appearances, I assisted in plea bargaining the case to a
form of probation known as "supervision." If he got in no other
trouble over the period of supervision, his criminal arrest could be
"expunged" or removed from his record--a process for which he would
have to again pay a lawyer. (Of course, the whole process was
burdensome for me as well, as it was over-and-above my duties to
develop my felony case files and try cases in the court to which I was
assigned.)
Eventually, I talked to the guy and he confirmed my original instinct:
he was just an ---hole. But my point was made. He had come into "my
house" (the criminal court house) and disrespected me (as they now
say), the victim, and the jurors. He needed to be taught that this was
not kosher. Eventually, he was pretty contrite about the whole thing.
Most importantly, I had backed up the jurors who had asked for my
help. Notice from the original story that I had taken no action when
the guy had tried to intimidate ME besides having him identified in
case he became more of a threat that I thought he was. But when the
jurors asked for my assistance, I felt bound to support them as they
had done their duty as jurors as I had asked them to do in my closing
argument.
References
1. http://volokh.com/archives/archive_2004_12_07.shtml#1102980920
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