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.