Does the Prosecution Rest? Changing the Narrative to Let Justice Be Done

george-zimmerman-trial-defaultThe George Zimmerman trial is on my Facebook wall.  It is on TV at the gym.  Needless to say, from a guy who doesn’t have a TV: it is everywhere.  Because this case is one of the few high-profile cases where some traditional roles are reversed, it creates a moment to see those roles.  After receiving positive feedback from writing the six rules for aspiring (and current) prosecutors to be effective, it is time to continue with the subject.

Strengths of the Prosecution

First, it is our entire society that prosecutes.  From the water-cooler gossip to the 6’oclock news, from prison guards to post-incarceration employers, all segments of our culture finds a way to punish people for their wrongdoings.  When all of these sectors are aligned, particularly if the offender fits a certain narrative, the prosecutor is most effective in their role.

Trayvon Martin TrialIn Zimmerman’s case, society has mixed opinions.  Someone from another country who doesn’t speak English might easily watch TV thinking Trayvon Martin is on trial, including calling it the “Trayvon Martin Trial,” accompanied by images of a hooded, Black, teenage boy.  Such an image is typically used of perpetrators, not victims, and this is the narrative America is used to.  Some parts of our nation, especially our media and prosecutors’ offices, may need to examine their prejudices and assumptions.

When unleashed, the “full extent of the law” can rarely be beaten.  The resources of the prosecution are limitless, with the help of police and community groups (of which Zimmerman felt he was one) the target is caught once a single hook gets sunk in.  This is where the prosecution excels.  They systematically have confused the defense counsel’s ethical duty (zealous advocacy for their client) with their own: to let justice be done.

Orleans D.A. Leon Cannizaro and NOPD Chief Ronal Serpas

Orleans D.A. Leon Cannizaro and NOPD Chief Ronal Serpas

Errors of the Prosecution

In some jurisdictions, about a third of cases prosecutors bring charges on are dismissed.  Even after attorneys are appointed the prosecutor is still holding on to terrible cases. They have a choice once someone is arrested, to decide whether this charge should be pursued or not.  Whether a case deserves more time spent on investigation, assigned to lawyers for both sides, and taking up space on the court calendar.  In New Orleans, the public defender had 18% of the felonies, and 59% of the misdemeanors, dismissed in 2012.  Next door, in Jefferson Parish, the dismissals are 23% and 32% respectively.  In many cases, whether the person spends anywhere from a few nights to a few months in prison, they are likely to lose a job, apartment, and even a significant other.  They may fall behind on payments such as past court costs or child support which, ironically, will result in a warrant for their arrest.

Dismissed charges are the ones where the prosecutor admits their mistake.  Knowing how well they can prosecute (leverage they hold, deals they can broker, and investigation they can muster), it’s a clear loser when the case is dismissed.  Typically it is because there was no evidence whatsoever.  It begs the question of why someone was arrested in the first place, but it’s understandable for a lot of confusion to exist when the police roll on to a scene.  That confusion apparently remains at the time of arraignment, although the D.A. would prefer you look at their controversial trial conviction rate, a tiny percentage of cases, to judge effectiveness.  On the other side, we don’t hear the Orleans Public Defender bragging that they won over half their felony trials last year.  Perhaps because it is less than 100 cases they handled.

The Orleans Public Defender handled 27,000 cases last year with its 54 lawyers.  Among 34,000 arrests by the NOPD, only 1300 were for a “violent felony.”  This is important to know, when we are inundated with the message of living in a violent city, and multi-millions are dedicated to law enforcement, only 4% of the arrests relate to that narrative of violence and fear.  Less than half the felony arrests result in convictions, and many of those are for misdemeanors.  Meanwhile, judges are being rated on how fast they can close a case rather than whether justice is accurate and rights are protected.  In New York City, as the infamous “Stop and Frisk” trial has shown, the police are being rated on how many arrests they can make.

View from the Public

There are signs that the prosecution’s infallibility is crumbling and their status as “humans,” with flaws and all, is taking over.  Nobody is jumping head over heels about the prosecution of George Zimmerman, but perhaps people should recognize that in non-televised trials, these government lawyers are making the same fumbles all the time.  This isn’t a scripted movie and not everyone can be Tom Cruise.

A recent survey showed that people of all ages, genders, and political persuasions lack faith in the prosecution, many believe prosecutorial misconduct is widespread, and overwhelming numbers don’t believe they are punished (and they are not).  For those most interested in maintaining the justice system as we know it, some action may need to be taken before the faith in it completely crumbles.

Changing the Narrative

A Black male teenager was shot and killed in New Orleans recently.  The police are likely following all available leads, and the prosecutors would naturally utilize all their resources to convict whomever the police arrest.  There may be deals for “jailhouse snitches,” to whom the suspect conveniently divulged every detail of the crime.  There might be anonymous tips and rewards paid out.  Such tactics are common in all cases of wrongful conviction, including several famous cases here in New Orleans.  With that said, the shooter may in fact be the one caught.

The prosecution would thrive in prosecuting where the shooter is a young Black male.  If Trayvon Martin shot George Zimmerman, there wouldn’t be any “doubts” expressed on mainstream TV, no remarks about the “burden of proof.”  Prosecutors didn’t even bother to correct simple, prejudicial, inaccuracies that Martin was 5’11”, not 6’2”; and photos used to justify his unarmed threat were of other people.  Prosecutors thrive where the community demands an “eye for an eye.”  They fare best if the victim is a young White person who “didn’t deserve to die.”  The common realities however, is that we need to move beyond our stereotypes and the stories our media has grown comfortable in telling.

In this New Orleans case, and many others, the boy’s father was himself incarcerated.  He knows wrongfully convicted people and also knows the impact of using prisons to destroy communities and end lives.  He wants to stop the violence on the streets, yet do that through jobs and education- two things sorely lacking in New Orleans and in many parts of our country.  Increased presence of armed police, in an overall distressed community that (believe it or not) never recovered from Katrina, is not a path to peace.  It is like saying “look, the murder rate in prison is lower than in New Orleans, so lets just put everyone in prison.”

Let Justice Be Done

For prosecutors to serve their purpose, they need to reflect the will of the communities they work within.  They also need to be accurate.  Potentially destroying the lives of a third of the people they charge, where the case simply wasn’t there, is inexcusable.  Catch-and-Release is not an acceptable form of justice.  People aren’t fish to be used for sport, nor budget increases.

About Bruce Reilly

Bruce Reilly is the Deputy Director of Voice of the Ex-Offender in New Orleans, LA. He is a graduate of Tulane Law School and author of NewJack's Guide to the Big House. Much of his writing can be found on
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