THE EXPERT WITNESS: The voice said, 'Prosecution is a numbers game'


By Michael G. Brock
The dinner stretched out over four or five hours, and my back began to bother me at some point from sitting that long, although not as much at the time as it would in the following days. Anyway, it wasn’t just the meal; I’m getting too old for schlepping a gym bag through airport security, and have to break down and buy a backpack, or something that moves on rollers.  It just seems so wimpy.
The days when he argued politically charged cases are behind him and we have a decidedly different relationship than the one we had when we would sometimes face each other in court. You might think a dinner that went on that long would have involved some drinking, but, to my recollection, the only person to have a drink was his date; neither my S.O. nor I drink at all, and I’ve never seen him have more than one.  No, it was just interesting conversation between a former prosecutor turned defense counsel, an expert witness, a U.S. Treasury Department lawyer, and someone with no connection to the legal system.

“Prosecution is a numbers game,” the voice said, “Prosecutors don’t generally take on cases they don’t expect to win, and once they take it on they don’t give too much consideration to the possibility they could be wrong.  Their egos and their reputations are invested at that point and it would be decidedly inconvenient for them if the defendant turned out to be innocent.  They often have political aspirations and their conviction record will help get them elected.  Consequently, they might prosecute some cases that seem trivial, or for which there is poor evidence, but are cases of a nature that a judge or a jury would be inclined to convict, while they choose not to prosecute a more serious crime in which they believe the defendant to be guilty, but for which they aren’t sure they can make a strong case.

“A good example is felony child support case.  If such a case is referred to a prosecutor, they will always choose to prosecute, and will win 100% of the time.  All they have to prove is that the order was issued and it wasn’t paid.  Those are the only relevant facts and nothing else matters.  Moreover, what kind of scumbag doesn’t support his kids?  The fact that he might not be able to find a job is irrelevant.  CSC cases are sexy (no pun intended).  Who would you rather put away, someone who committed bank fraud (boring), or a sexual predator?  This is a get tough on crime culture; no one gives you points for discovering exculpatory evidence halfway through a trial and moving to dismiss the charges, even though that is the ethical thing to do, and, of course, what some prosecutors will do—but not all.”

My mind went back to a couple of cases I had researched years ago.  One involved a prosecutor who didn’t want to allow a priest to testify about a murder that had been confessed to him by a now deceased gang-member, for which an innocent man was serving a life sentence. [i] 

The other was the now infamous New York Central Park Jogger case, where even after Matias Reyes confessed to the vicious attack as the lone assailant, and his DNA and only his DNA matched that found on the jogger, police and prosecutors still insisted that the innocent teens they had railroaded into confessing in contradiction to all the physical evidence were also complicit in the attacks. They had even attempted to intimidate filmmaker Ken Burns and interfere with free speech by subpoenaing him and trying to suppress the documentary he was making about the incident. [ii]

The police had briefly spoken with and released the perpetrator that very night, facilitating his committing additional rapes and at least one homicide because they had someone they could blame the crime on.  And therein lies the dual-edged sword of false prosecution—convicting the innocent and ruining their lives, and letting the guilty go free to victimize others.  Much is made of the lack of moral foundation of defense attorneys, who inevitably must represent at least some guilty clients, getting them off on a technicality, while nothing is said of the same tactics when used to convict the innocent.  However, the nature of prosecution is inherently different, as their sole purpose for existence is to protect the innocent, and the prosecution of those they believe to be guilty is merely a means to that end.

Therefore, law enforcement and prosecution must be held to a higher standard.  The fact that their purpose is noble does not exempt them from moral behavior in seeking that end.  In fact, no one ever commits an atrocity in the name of evil, it is always in the name of the most noble and sacred causes.  No lessor light than Winston Churchill found reason to praise Adolf Hitler’s positive effect of restoring Germany’s pride after its defeat in WWI, “I have always said that if Great Britain were defeated in war I hoped we should find a Hitler to lead us back to our rightful position among the nations.” [iii]

The Voice went on to address my concerns about the clearly unconstitutional “Dear Colleague” letter of 2011 and offer his insights. “The idea probably did not originate within Obama’s administration, but he knew he would be up for reelection in 2012, and would need the feminist vote to get him there.  And he taught constitutional law, so he must have been aware of the problems related to this kind of executive overreach, but he probably calculated that it would take some time to work its way through the courts, and that several things were likely to happen: first, he would be out of office before it all began to unravel; second, legislation would be initiated to statutize the ruling and make it more difficult to undo the Department of Education Office of Civil Rights overreach, and; three, there was a high probability that Hillary Clinton would be the next president, and appoint liberal justices to the High Court, making it less likely that the statutory version of the ruling would be overturned.

“Moreover, there is something of a conspiracy between the Left and the Right in politics that is allowing these encroachments on constitutional protections. The Left is in the process of criminalizing as much male behavior as they can in an effort to solidify feminist rule, and the right just wants to criminalize everything so they can run on a law and order platform and continue to get reelected.  Police and male prosecutors may or may not subscribe to the fashionable ideology that males are inherently less moral, but they certainly understand that feminism is the tail wagging the dog, and that they earn points by arresting and prosecuting males, and “protecting” females, regardless of the facts of any given case. Hell, even judges know that if they get a reputation as being pro-male a campaign will be waged to remove them from office and replace them with someone who is politically correct.  [A local female judge] had that boomerang on her a couple of years ago when she leaned on a guy who wasn’t the father to pay 30K back child support for a child that she knew wasn’t his, and expressed outrage at the media for reporting the injustice, [iv] but such cases are rare.  Generally, the media will spin the story in favor of the woman.”

From my time as an expert in family court doing child custody and forensic interviews, as well as handling hundreds of domestic violence cases at the district court level, I was aware that feminists had systematically pursued legal action as a means of gaining both power in domestic relationships and in divorce actions.