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On Building the Strongest Possible Prosecution Team

July 10, 1994|Susan Estrich | Susan Estrich, a contributing editor to Opinion, is a law professor at USC. She served as campaign manager for Michael S. Dukakis in 1988

Harvard Law Professor Alan M. Dershowitz is a "defense adviser" in the O.J. Simpson case. Noted trial lawyer F. Lee Bailey is a member of the defense team. Distinguished consti tutional-law scholar and former law-school dean Gerald F. Uelmen is at the defense table. Countless other brilliant lawyers and academics have been consulted by the defense--or wish they had been.

Where are the prosecution's advisers?

In most criminal cases, it's the defense that needs the help. Most of the time, poor defendants find themselves overwhelmed by the power of the state arrayed against them. In many states, defendants facing death can't even get the legal help they need. But People vs. Simpson is no usual case. The defendant is a wealthy, admired celebrity. The world is watching. Public confidence in the criminal-justice system has reached new lows. How the system fares in a case of this high profile determines far more than the fate of one defendant.

To date, prosecutors Marcia R. Clark and William W. Hodgman have been doing just fine. Shapiro may well have assembled, as he claimed he would, the best defense team in America, but they have been more than matched by the staff of the Los Angeles County district attorney's office.

Of course, the battle has just begun. What you get with a million-dollar defense is a team that will pound away at every single point--legal, factual or scientific--in the prosecution's case. There may come a time, down the road, in this case, or in Lyle and Erik Menendez or the next Rodney G. King, when the budget-strapped district attorney's office could use some help from volunteer lawyers or scientists or experts. Why not?

Under early common law, private lawyers hired by the victim routinely prosecuted criminal cases. But lawyers hired by a victim represent the victim--not the people. Victims, understandably, want their pound of flesh; they also may want to recover money in a later civil suit. The problems of an innocent man trapped in the system are not their problems. Besides, not every victim can afford private vengeance. Excessive zeal, and conflict of interest, characterized the system of private prosecution. It was widely viewed as a failure.

Today, the American Bar Assn. recommends, and most states require, the use of full-time public prosecutors to avoid such conflicts and ensure fairness. The goal of a prosecutor in a criminal case is not to win. It is to do justice: to convict the guilty, but also to see to acquit the innocent. Unlike a private defense lawyer, whose job is to help his client minimize his punishment, whether he's innocent or guilty, the prosecutor must be in the business of seeking the truth.

But the rules do not preclude private individuals from lending a hand, provided control rests, as it should, in full-time, public prosecutors--and provided the private attorneys and investigators are subject to the same rules, and constitutional restraints, as their public counterparts.

In some cases, special prosecutors have been appointed to lead the prosecution in court. In the high-profile prosecution of boxer Mike Tyson, for example, a distinguished private attorney was hired to prosecute the case with the chief county prosecutor, and the private attorney actually tried the case in court. He won.

In others, families of the victim have hired attorneys and experts to assist the prosecution's case, rather than direct it. In the trial of Claus von Bulow, the family of his wife, Martha (Sunny) von Bulow, hired experts to help prepare prosecution witnesses for trial.

In cases of lesser crimes, prosecution is often handed over entirely to a private attorneys. Here in Los Angeles, for example, private law firms donate attorneys to prosecute drunk driving cases under the supervision of public prosecutors. The attorneys get trial experience, and the public gets free help.

The problem is not the rules, but tradition and appearances.

When Shapiro calls a Dershowitz or a Bailey, all their stars shine brighter. The calls clearly confer stature on those who receive them: Witness the number of lawyers claiming, suggesting or maybe just wishing they were on Shapiro's call list in the last few weeks.

Even more important, no one takes outreach by the defense as an acknowledgment of weakness by Shapiro. He's not calling because he's in over his head. He's not reaching out because he's not up to the job. It's because he wants to do the best possible job that he builds a broader team. If anything, his stature is enhanced by the stature of those working for him on that team.

The same should be true on the public side. Gilbert Garcetti, the district attorney, should be free to reach out as broadly as Shapiro. A call from Deputy Dist. Atty. Clark should mean at least as much as a call from the Simpson team. Public service, by lawyers and private citizens, should include service to our public prosecutors.

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