This morning’s WSJ has a short article with a long headline, “Manhattan DA Is Put on Defensive: Vance’s about-face on bail in sexual-assault case follows two high-profile court defeats for office.” The blurb from the website’s front page summarizes the story pithily: “The newly surfaced problems in the sexual-assault prosecution against Strauss-Kahn represent the latest of several recent high-profile setbacks for Manhattan District Attorney Cyrus Vance Jr.”
We’re a proud alum of the office, but lately the office has had a different vibe, one that make us less proud. Outside the investigative division, which so far as we can tell has remained as professional as ever, there seems to be a distinct shift away from the higher standards of the Morgenthau office towards those of lesser offices. Although it hasn’t gone quote the way of, say, Nassau County, the change has been clearly noticeable.
In this morning’s article, the DA’s spokeperson tried to defend the office’s handling of the Strauss-Kahn case. In doing so, she made a key statement that seems to explain what’s going wrong:
“At every step of the way, the district attorney’s office made the right decisions. We pursued an account of a sexual assault that was corroborated by witnesses, electronic evidence and DNA evidence. That evidence was more than enough to present to a grand jury, which indicted the defendant. After the indictment, the district attorney made clear that the investigation would continue and prosecutors would take the case wherever the facts led. Today, we did just that.”
This is a defense? Cy, if you’re reading this, that statement is an indictment of your office, not a defense.
First of all, if you only have enough evidence for an indictment, you don’t seek an indictment. We were trained not to write up a case unless it was one we were confident we could prove beyond a reasonable doubt at trial. The evidence sufficient to obtain an indictment is laughingly slim — one only needs to convince a bare majority of the grand jury that it’s probably more likely than not that the crime could have happened, on the barest evidence that has not been tested or challenged in any way. If the best you can say of your evidence is that is is “enough to present to a grand jury,” then you need to keep investigating.
Second, “after the indictment, the district attorney made clear that the investigation would continue and prosecutors would take the case wherever the facts led?” Are you shitting us? You mean you sought an indictment before you’d even completed your investigation? That’s the kind of amateurish, shoot-first-and-ask-questions-later approach we’ve come to expect of the embarrassingly bad DA’s offices. It’s not what the Manhattan DA’s office is supposed to do. No, you’re supposed to complete your investigation first, and only then seek an indictment. You don’t go to the grand jury until (1) the investigation is complete, (2) the investigation has convinced you that the suspect is guilty and that you can prove this guilt beyond a reasonable doubt at trial, and (3) you’ve made a policy determination that prosecution is the right thing to do in this case. Ideally, but not required, one also (4) presents the opportunity for a pre-indictment plea, which in our experience often leads to discussions that can shut down a misguided prosecution before it’s gone too far.
We’ve certainly seen more of this reckless prosecution lately, and it’s never been to the credit of the office. Each time, it’s only made the office look worse. And we’re not the only ones noticing. When we speak with other defense colleagues about this, almost all are in agreement that this change under Vance has only damaged the office’s reputation.
It’s a shame for the office, of which we would like to remain proud. It’s a shame for Vance, whom we genuinely like and want to see succeed. But it’s worse than shameful to shoot from the hip like this, trying to score points at the expense of the lives of real people.