We are in a time like no other in terms of prosecutors re-assessing what that role means. There are wrongful conviction units; there are prosecutors leading or supporting the fight against cash bail; there are prosecutors addressing drug crimes with a public health perspective. And, of course, there are conscious reform efforts on issues such as Brady disclosure, the integrity of forensic evidence, and alternatives to mass incarceration.
So at this time of change I looked forward to reading Bennett Gershman’s PROSECUTION STORIES (twelve tables press 2017). Gershman seemed the right person to author the book – he himself had been a prosecutor, and as a law professor has researched and published on prosecutorial ethics and prosecutorial misconduct. And I looked forward to what the book promised – on its way to proving the point that the “prosecutor is the most powerful official in American government[,]” it promised to tell “how the prosecutor uses, and misuses this extraordinary power…”
The book indeed regales us with tales of abuse of extraordinary power, and each one alone is an object lesson. I knew most of the stories, I learned more about each, and I came away with the confirmation that, indeed, prosecutors have great power that is easily abused.
But I have two concerns. The first is that so much of the book is about mis-use of power that it is more useful as a tool for preaching to the converted than to winning over new converts, be they law students thinking about a career in prosecutor offices or young (or old) prosecutors wanting to learn or to grow. In other words, it seems to be in attack mode. There are two few counter-stories, testimonials to when prosecutors stood for reform, for independence from the tough-on-crime agenda, or compassion.
The second is the glaring absence of data. The 250+ pages highlight a number of prosecutorial errors, but there is no way of knowing or measuring the incidence or the prevalence of abuses of power. Again, that is why I fear the book lacks utility in the law school classroom.
There is one notable exception. Professor Gershman describes a survey his domestic violence clinic students conducted in which they sent a list of hypotheticals to prosecutors – each involved a statement made by the domestic violence victim to the prosecutor, with the question being whether disclosure was required under the Brady obligation to provide the defense with exculpatory information. The high variation in responses is compelling proof that prosecutors don’t ‘get’ Brady. By way of example, when the hypothetical was that the victim told the prosecutor that “I instigated the whole encounter,” the majority of the 23 respondents concluded that this statement did not have to be revealed. And when the victim revealed that “I exaggerated what happened,” more than one third of the respondents believed no disclosure was required. Those numbers should bring consternation to anyone serious about criminal justice fairness.
Read this book because it is well written; because it tells stories with great detail and insight; and because it makes one truly appreciate the power of the prosecutor. But read it with the understanding that these are some of the stories; and make sure that if you use it to train lawyers or law students that such a caveat is provided.