David Brower is an honorable district attorney trying to do a difficult job. A DA (DA) is charged with upholding the laws written by the Legislature. Three cases have recently raised comment about Brower’s performance as a DA.
First, a defendant was charged with sexual abuse of his daughter. If there were no confession and no corroborating physical evidence, the case would be entirely dependent on the complaining witness’ testimony. And if that witness was not entirely credible, because of a variety of reasons, including prior inconsistent statements, the state would likely lose at trial. A DA knows that to prevail at a criminal trial a jury must be convinced beyond a reasonable doubt. This is the highest standard of proof in our legal system. It makes sense to dismiss a case when the evidence is not up to that level, as the prosecutor in the Dominique Strauss-Kahn case did, rather than put the alleged victim and the defendant through a trial in which the government is not likely to prevail, even when the DA believes the testimony but realizes it will be insufficient to persuade a jury.
In this case, the prosecutor had solid evidence of another crime: the defendant contacted the complaining witness when he was court-ordered to have no contact. That was the basis for the charge of interfering with official proceedings. This was a reasonable settlement under the circumstances.
Second was a “sexting” case, in which a police officer (not the DA) filed felony child pornography charges against an 18-year-old whose 17-year old girlfriend had texted him explicit pictures of herself. Possibly, the charges were filed to pressure the man regarding a burglary charge being investigated. The DA, upon realizing the child pornography charges were inappropriate, dismissed the charges. This is another example of acceptable and reasonable decision-making by the DA.
Third, a decision was made to prosecute a defendant for shooting someone with a handgun he says he thought was unloaded. The crime of assault requires that a defendant “recklessly” cause physical injury to another, not that the defendant acts intentionally. “Recklessly” means the defendant was aware of, and consciously disregarded. a substantial and unjustifiable risk that the result would occur. Basic gun safety requires one to treat every firearm as if it is loaded, and to be aware of where the muzzle is pointed. To point a firearm toward another and pull the trigger, regardless of whether one thinks it is loaded, may certainly be considered reckless. That his brother was the victim makes it “domestic violence.” The definitions of assault and domestic violence were enacted by the Legislature, not the DA. Those who think the crime of assault should require intentional or malicious conduct, not mere recklessness, or that the term “domestic violence” should not be applied when the victim is a sibling, rather than a spouse or dating partner, should bring their concerns to the Legislature, not the DA.
In sum, Brower has made reasoned decisions based on the evidence and the laws enacted by the Legislature. That is what his job requires. Those who attribute to him bad motives or abuse of discretion are being unfair. It is not the job of the DA to base decisions based on what the public or the newspaper editors, who do not know the evidence, might want. Any discussion or criticisms of Brower’s work should be informed by a proper understanding of the DA’s role.
Some want more explanation of the DA’s reasoning. Prosecutors have specific ethical constraints on making public comments. Prosecutors may occasionally explain the nature and extent of their actions, but may not make public comments that have no legitimate law enforcement purpose and have a substantial likelihood of increasing opprobrium of the accused. Having made a decision to decline or dismiss a charge, or to reduce a charge in the course of plea bargaining, rarely would it serve any law enforcement purpose to make a public statement. It is better public policy that the government speak through a criminal prosecution or not at all.
• Wagner is a former prosecutor and is now a criminal defense lawyer.
Comments (26)
Add commentThank you Mr. Wagner...
Thank you Mr. Wagner.
I can't say that I've finalized an opinion on each of the specific cases you reference, but I do appreciate that you've provided additional facts and a contrasting view that has been absent in previous Empire reporting and most reader blogging.
Thank you for your commitment to help Juneau readers arrive at informed opinions, whether they end up agreeing with your perspective or not.
More evidence that the empire
More evidence that the empire needs to straighten some stuff out before looking like a gossip blog.
Lame
The explanation of the handgun incident is lame. Just because charges can technically be filed against someone doesnt mean they should be.And filing inappropriate charges to pressure someone to plead guilty to other charges isnt right either. If this was the police officer doing this and the DA caught it and immediately dropped the charges, then good for him. But I dont think anybody was questioning his honor but just some of his decisions.
Sad State of Affairs
The Empire frequently gets crucial facts wrong. At first, I assumed that it was the relatively harmless errors of a small town paper. After a while though, you see the Empire referencing its own articles as truth. Now the Empire has taken to writing Staff Editorials based on its own half-hearted investigations, basic incompetence with regard to fact checking, and complete lack of understanding of the criminal justice process.
And the same commenters come day in and day out to feed on this thin gruel, to regurgitate what they're fed, and pat themselves on the back for their superior moral position because of it.
Thankfully the Juneau portrayed by the Empire is not the same Juneau in which my family lives.
That was about a tall cool
That was about a tall cool glass of STFU for us here in the peanut gallery.....
I guess justice is kind of like moose sausage.....if you want it done right you have to do it yourself......
It seems like a good article to me...
It is a difficult call, sometimes for the public to tell what is going on. This article does give us legal background. I still don't have enough information to make any real opinion, but I appreciate the information. It adds to the story.
Good man attacked by yellow journalism for pure profit
It seems that the Empire is seeking to create its own news. That sells papers and advertising I guess. First, they report one sided grossly inaccurate details of cases as "just the facts" and then "report" the outrage that the yellow journalism creates in the anonymous blogosphere as legitimate community sentiment that somehow merits published public comment by the editors of the Empire.
Such action is cynical and would be funny but for the cost to the reputation of a good man. I don't know Mr. Brower well. I do know that he has dedicated his career to serving the people of the State of Alaska for many years. A public review of the hundreds if not thousands of criminal cases he has prosecuted would show that he has done his job well for many, many years.
We, the people of Juneau, should thank him for that service and should take the time to consider the real facts before smearing his name. We should also take a collective breath and ask ourselves who benefits from these attacks?
The mere fact that you had to
The mere fact that you had to write this letter speaks volumes about the DA.....
Bravo, counselor! Bravo!
I would shed a happy tear if I were really impressed by a lawyer defending a lawyer. Especially a defense lawyer defending a district attorney that he makes deals with in the persuit of a mutually shared no loss agenda. I'm sure you made points with the prosecutor with this letter. You can wipe your nose now.
Something very important is being passed over in this issue. We always hear about the proper procedure in the practice of law. We hear about the rights of the accused. The rights of the plaintiff. The rights of witnesses. What's missing here? A man accused of a crime has the right to a fair and speedy trial to be heard by a jury of his peers. So, what is being overlooked? Me. That's right... Me! How many times have I heard that it's not for me to judge? Oh, but it IS for me to judge. What gives me the right? The Constitution does. Every time I apply for my Permanent Fund Dividend, my name gets thrown into a lottery for jury duty. A civic duty to perform as a peer of an accused person being tried for a crime. If I win that lottery, my compliance is compulsory. That is the duty incumbent on every PFD applicant over 18 years of age. I, personally prefer not to get drawn for this particular lottery. But, it is my civic duty. As it is for the rest of us citizens...peers. But, it is also a right. Just as a defendant has the right to have his case heard by his peers, so also, do his peers, the citizenry, have the right to hear the case. It is the DA's duty to prosecute crimes against the citizenry and not just the cases that he's sure are a slam dunk. You can't win them all. Trials are essential to insure that a valid attempt is made to fairly dispense justice and a jury is required to judge a case gone to trial. Plea bargains and unexplained dropped charges robs the citizens of their right to justice. It robs us, the people, the peers of our right to pass judgement in the interest of justice. It is the DA's charge that the people are presented the opportunity to hear and judge a case. So what if he loses. He has fulfilled his charge. And justice was done in that the people decided. Therefore, I maintain that the DA is accountable to the citizens. If charges are dropped or a deal is made, it is the right of the citizens to receive an explanation. We, the people, the peers are being passed over by District Attorney Brower.
Honorable DA
If the facts are as you present them, Mr. Wagner, then indeed the DA is acting responsibly and in accordance with the law. He does, however, have some latitude, prosecutorial discretion, in the dv case. It comes to my attention because I have Google alerts for stories that involve, among other things, domestic violence. I have not followed that case and I hope that he is taking into consideration the degree of injury to the man that was shot, the wishes of the "victim" in pursuing prosecution and if the perpetrator presents a danger to the community.
In Delaware, the DAs (here they are called Deputy Attorney General; DAG) do not act responsibly on issues of domestic violence. They will prosecute cases where physical evidence disproves the verbal accusations of so called victims. They will prosecute cases where so called victims recant false allegations that were the only basis for arrests, in the absence of any physical evidence. The operational definition of probable cause for the Delaware DOJ, on allegations of domestic violence, are the allegations came out of a woman's mouth against a man.
It is the policy of the Office of Attorney General and the Attorney General in particular; Joseph (Beau) Biden III to abuse domestic violence statutes at the expense of the constitutional rights of accused.
The reasons for this are 1) federal funding (VAWA and STOP grants) where it is beneficial for the state to be able to show higher statistics on domestic violence crimes; greater need = more money 2) politics 3) ideology
Senator Grassley (R-IA) has proposed an Amendment to VAWA, which is up for re-authorization. His amendment would require financial accountability for the millions of taxpayer dollars that are spent each year. According to the GAO, these programs are poorly monitored and fraught with abuse.
The domestic violence industry, that makes there living off Federal funding opposes the Grassley Amendment and is now trying to frame the issue in the US Senate as 'if you are for women and against domestic violence vote yes on the Leahy (D-VT) re-authorization and no on Grassley an if you are anti-woman and pro-domestic violence vote for the Grassley Amendment'.
Wasteful government spending has to come to a stop. Worthy programs need to be accountable and put taxpayer money into programs that are scientifically based and proven to be effective.
Call or email your US Senators and ask them to vote yes on the Grassley Amendment.
I commend DA Brower if he is in fact, as you say, acting with integrity. You don't see much integrity in Delaware under the leadership of AG Beau Biden.
skirkz
well said
Well Said
I admit to bad-mouthing the DA in spousal conversation. This clearly shows what's written up for the Empire isn't the whole story. Not everyone is privy to such legal knowledge to connect the above points.
Thank you Mr. Wagner. Also, thank you DA Brower for trying to make our community a little safer.
Perhaps
Perhaps Mr. Wagner should spend less time writing letters, in hopes of garnering points with the DA, and invest more time supporting and defending the people he was assigned to represent?
@skirkz, orionsbow, & JAllen
Tom Wagner is currently the "public defender" for the city and only appears opposite the CBJ prosecutor, not the District Attorney. Wagner and Brower don't make deals.
If you want the DA to bring every case to trial, talk to the Legislature about getting the funding for enough prosecutors and public defenders to do that.
kaymwalk
Do you feel safe? A man accused by his daughter of violating her gets to plea out of a sex offender charge. A kid makes the paper by being charged with adolescent possession of raging hormones and a family devastated by a firearm accident has to deal with criminal charges. Meanwhile, the perpetrator of a home invasion, assault (attempted sexual), robbery and burglary goes uncharged after 2 months. This doesn't help me to share your imagined sense of security. I feel the community is put at risk.
Fbomb
I aready FUND the DA and PD to see a man have his day in court.
skirkz
I didn't say I felt safe.
My comment was thanking the DA for TRYING to make our community safer.
No cigar and not even close.
Trying? I give him an F for eFFort.
Honorable?
I cannot comment on the DA's level of honor as I do not know his personal reasons for his bad decision making. However, I can definitively comment on his bad decision making. The DA is a person with an extreme amount of power. He is given discretion to make choices that can change the course of people's lives. One of the reasons he is given so much lattitude, is to ensure common sense is also applied when dealing out justice. I see that criteria has completely been disregarded in some of these instances. The most egregious example is the decision he made to prosecute Seth Bingham. While he may have technically found legal ways to justify his decision, as his friend Tom Wagner has pointed out, he has in no way served our community. Seth is a man who loves his brother and was a part of a horrible accident, one that left his beloved brother without a limb. What a terrible burden to bear on a young man with a beautiful family. In hindsight, are there ways he could have been more careful? Of course. After every accident can we look back and play by play dissect the incident that surrounds the tragedy and find fault? Of course. However, is justice in anyway serve by the prosecution of this man? NO. This is the exact reason we have given the DA the ability to use common sense, and the exact reason that we should excuse him from his job if we cannot have confidence in his decision making abilities. I consider myself a reasonable person and have tried to see his side in this case, but all I see is a man creating more damage in a tragic incident that has saddened our community. If it was his son or someone he loved would he really feel that this was in the interest of justice? If so then I question his ability to be a decent human being in a community. I really believe we should all be outraged. If this is what he does with his decision making power today, who is to say which of us will be next? It may be your son, daughter or loved one! It is our responsibility to hold those with so much power accountable. Please continue to express your opinions in this matter. The DA needs to know that we will not tolerate such behavior. We not only expect better decision making, we demand it.
Skirkz, it is obvious that
Skirkz, it is obvious that you have absolutely no idea what goes on in our legal or justice systems. Before you go spewing your uneducated filth about how every case deserves a trial, go learn something about the system first!
@ Skirkz
The home invasion guy was charged, 12/27/11. Check court website :-)
3Angels
He was charged for crimes committed on 12/19/2011. The home invasion was on 12/26/2011.
http://www.courtrecords.alaska.gov/pa/pa.urd/pamw2000.event_lst?99930975
really
It's obvious that you have no idea what I know about the legal and(/or) justice systems. You are the spout off here.
There was a day
When plea bargining was not allowed in Alaska. Attorney General Gross had a strict policy of no plea bargining and it stayed that way for many years in Alaska with no logjam in the courts no extra district attorney's needed and even better, All cases that were indicted by the grand jury went to trial.
Can anyone besides me recall when that was? I'll give a small hint.... The governers first name was Jay.....
enough
skirtz, you can only go after child molesters when you have good solid evidence. He got what the DA could get for the crime. They are very hard to prove... he said, she said. Most child molesters in the State of Alaska get very little time. 1-5 years. Yes they ruin the lives of others and yes they should not only be locked up but other things should happen to them too. Please remember that the DA did not commit the crime so don't persecute him for it. He did the best that anyone in that position could do. Enough about this.
mr. brower
i do not personally know anyone at the Empire, nor do i know DA Brower. from reading about 2 of the cases being discussed, i was appalled that charges were brought in the first place. the sexting case was just stupid & i don't understand why it took the DA so long (an hour would have been too long) to realize that.
where is common sense in all of this?
the accidental shooting case is a personal tragedy for all involved; nothing malicious is involved.
in the child molestation case, the fact that the defendant lied about his family should have somehow been taken into account. why did he lie? what was he afraid of? when a member of the "non-existent family" stepped forward the truth was out. a "man" who is sworn to protect the citizens of his city, is arrested on charges of sexually abusing his own daughter, then charged with interfering after contacting her while out on bail, then caught lying should come under the suspicions of even his staunchest supporter when the truth became obvious.
did the DA even consult with this coward's daughter before dropping the molestation charges?
why was he so rude when answering a question? ("what part of......do you not understand". ) he is a servant of the people and has not served well.
sweet dreams Mr. Brower.
"Yes they ruin the lives of others" doesn't begin to describe the depths, ramificatitons, or devastation this brings.
No, tikitime, it is not enough.