DENVER — Colorado Attorney General John Suthers will deliver the keynote speech to the state’s prosecutors gathered at a conference the Colorado District Attorneys Council is hosting today in Keystone.
The attorney general’s remarks, scheduled to be delivered this morning, touch on a variety of topics, including prosecutors’ roles in ongoing sentencing reform efforts to how crime and punishment has and has not changed since Suthers first became a prosecutor more than three decades ago.
The attorney general’s actual remarks may vary from this advance copy.
At the risk of rendering myself immediately irrelevant to the vast majority of this audience, I’m going to confess that I attended my first CDAC Conference thirty-one years ago in 1978. I believe it was at the Four Seasons Hotel in Colorado Springs. I won’t embarrass anyone by asking who else here today was at that conference, but you know who you are.
Here’s why I remember that first CDAC conference so well. I attended sessions on closing arguments and on jury selection, among others. The presenter on closing arguments was an out-of-state prosecutor. I think he was from Texas. He was a flamboyant guy with a booming voice. You could tell he was the kind of guy who liked to quote scripture in his closing arguments. What I remember distinctly was the advice he gave as to how to deal with character witnesses for the defendant in a closing argument. He suggested you tell the jury that there are two fundamental problems with character witnesses. First, they weren’t at the crime scene – they don’t know what really happened. Secondly, character witnesses can be dead wrong in their character assessment of a defendant. “Remember,” he said to tell the jury, “at one point in time George Washington would have been a character witness for Benedict Arnold. At one point in time Julius Caesar would have been a character witness for his eventual assassin, Brutus. And yes, ladies and gentlemen, at one point in time God himself would have been a character witness for the archangel Lucifer.”
I thought to myself at the time that that was really corny and I could never be so dramatic. But a few months later, in one of my first jury trials in district court, I found myself prosecuting a very prominent businessman in Colorado Springs. He was charged with theft receiving for knowingly buying stolen gold and silver from juvenile burglars. Unfortunately, some documentary evidence that proved his guilt was suppressed by the court and I was stuck relying on the testimony of an employee of the defendant who had two prior felony convictions.
Both the mayor of Colorado Springs and the chairman of the El Paso County commissioners testified as character witnesses for the defendant. In the closing argument, frankly out of a sense of desperation, I resorted to the George Washington/Julius Caesar analogy. I remember feeling sheepish as I was saying it. But just as I was saying “and remember that at one point in time God himself would have been a character witness for the archangel Lucifer”, I noted that a woman juror in the back row began nodding her head very slowly. And lo and behold, she became the foreman of the jury and the defendant was convicted.
At the session on jury selection the presenter suggested that if the judge would let you, you should ask the jury pool whether any of them had a bumper sticker on their car, other than for a political candidate, and what it says. He suggested that question would help identify the fringe elements in the jury pool. A few months later I was picking a jury in a sexual assault case. The defendant was accused of picking up a teenage hitchhiker and subsequently sexually assaulting her at knife point. I decided to ask in voir dire whether any of the prospective jurors had a bumper sticker on their car. One man in his early twenties rather sheepishly raised his hand. I asked him what the bumper sticker said. He asked the judge if he had to answer. When the judge said he did, he revealed that his bumper sticker said, “Gas, grass or ass; nobody rides for free”. Now this young man may have made a fine juror, but given the nature of the case, I felt good about using a preemptory challenge on him.
I tell you these war stories to emphasize the point that CDAC conferences are, in fact, full of pearls of wisdom that can help hone your skills as a prosecutor and a trial lawyer. So show up for the sessions and pay attention!
You know, I expect that everyone here probably has a story about how they came to be a prosecutor, an investigator, or otherwise employed at the DA’s office. Let me tell you how I found my passion in life. When I started in law school at the University of Colorado I had no idea what I wanted to do. But during my second and third year of law school I had an internship at the DA’s office in Colorado Springs. I spent most of that time doing legal research in two high profile murder cases the office was handling at the time.
I had never been exposed to such evil. Although I played a small part in those cases, I shared the community’s sense if outrage at those heinous crimes and I got a glimpse of the tremendous satisfaction prosecutors feel when holding a defendant accountable for a reprehensible crime and vindicating the interests of victims and the public as a whole. And I decided then that I wanted to start my career as a prosecutor.
Over the ensuing three decades I’ve enjoyed a fascinating legal career. When I graduated from CU law school in 1977 I had a vague but undefined notion that I wanted to spend a portion of my legal career in public service. So imagine how I feel standing before you today having spent 20 years in public service as a prosecutor and having had the opportunity to serve as the elected District Attorney, as the presidentially appointed U.S. Attorney, and now as the Colorado Attorney General. I tell my legal friends I feel like I’ve won the “legal trifecta.” For a lawyer interested in public service, I don’t believe it could get much better.
As many of you know, I wrote a book published last year that contains many of my reflections about the justice system and the role of the prosecutor in it. The law firm of Holland and Hart was kind enough to purchase a copy for all the prosecutors in the state.
The book is based on two basic premises that I believe with all my heart. First, effective prosecution is essential to good government. Long before government got into the education business or into healthcare or anything else the government is involved in today, it was responsible for public safety. In fact, only a duly constituted government can arrest people, prosecute people, and incarcerate people. I view the criminal law as a social contract between and among the people. We all agree to forego some of our hedonistic impulses in exchange for the mutual security the law provides. In a free society the people themselves, through their elected representatives, decide what laws will constitute the social contract and what penalties are necessary to sanction those who breach it and to deter those who may be tempted to do so. Aggressive enforcement of the social contract by those designated to enforce it, including prosecutors, is essential to preserve order and avoid the anarchy and chaos that vigilantism would produce.
My second premise is that prosecutors in the United States exercise immense power. We alone start the process by which a citizen can be deprived of their liberty. We can use this power to bring about justice - to demand accountability and to make our communities safer. Or we can undermine justice by abusing that power. Think of the damage caused by Mr. Nifong, the Durham, North Carolina prosecutor who bowed to political pressure and charged Duke University lacrosse players with rape despite a patent lack of evidence. He won the election, but he lost something far more important, his integrity and his reputation. And he damaged all of us in the process. An ethical prosecutor understands that the integrity of the system is a higher good than the outcome of any particular case. And I would caution anyone thinking about being an elected District Attorney that you should ask yourself this question: Are you prepared to sacrifice your job to do the right thing, if necessary? Fortunately, I’ve observed that prosecutors who consistently do the right thing earn trust with their constituents that serves them well when dealing with such difficult cases.
The bottom line is that our system of justice does not work unless competent prosecutors carefully review evidence, make principled charging decisions and zealously and effectively prosecute serious cases. And to be competent and effective, prosecutors need good investigators, good legal support and top notch administrative staff.
As I reflect back on my career as a prosecutor, I find it interesting to consider what has changed and what has not. Over time the nature of criminal activity has changed significantly. When I review historical documentation in my office for example, I see lots of prosecutions for cattle rustling, adultery, bigamy and the like. Needless to say, we don’t handle those cases any more. When I became a prosecutor in 1977, there was no such thing as computer crime, let alone internet crimes. In fact, one of the things I’m most proud of is the work we’ve done over the last several years to conform our laws to changing technology in order to deter and apprehend internet predators.
But while our society has changed dramatically over the years, human nature has not. In other words, while the means and methods of committing crimes change, the motivation does not. Virtually all the misbehavior the law proscribes can be attributed to a few basic vices that have always plagued the human race. They’re called the seven deadly sins: greed, pride, lust, anger, envy, gluttony and sloth. And it’s fascinating to me that the same deadly sin, such as greed, can be responsible for a two dollar shoplift as well as a two billion dollar securities fraud by the likes of Joe Naccio or Bernie Madoff.
Another thing that’s changed dramatically during my career is the technology for solving crime. In 1989, my first year as the elected District Attorney in Colorado Springs, a serial rapist was terrorizing the northeast side of the city. His modus operandi was such that none of the witnesses were able to identify him. But one time he got sloppy and some physical evidence was left behind that caused the police to focus on a suspect. I’ll never forget the day when the chief deputy in my office, Linda McMahon, told me she wanted to involve the FBI lab and use some new technology called DNA fingerprinting. I was skeptical because it had not been admitted in a Colorado court at the time. But that case, People v. Lindsey, was the first case in which the Colorado Supreme Court upheld the use of this new scientific breakthrough. Folks, that was only twenty years ago. Now, advances in DNA technology are making it an evermore frequent and effective tool in our effort to incriminate the guilty and to exonerate the innocent.
I’m very excited now about advances in information sharing technology because I think such technology has the potential to be almost as big a breakthrough in police work as fingerprints or DNA. Giving every police officer on the street almost instant access to all the data available on the person he or she just stopped will make law enforcement much more effective.
Looking back over the last thirty years, I’m also intrigued by the fact that while the objectives of sentencing don’t change – they have always been retribution, restitution, rehabilitation, isolation and deterrence – our societal emphasis seems to change cyclically and somewhat dramatically. In my three decades as a prosecutor I’ve seen us swing from an emphasis on rehabilitation to an emphasis on retribution and isolation and now back toward rehabilitation and restitution. I have been known to cynically suggest that when prison populations are growing and crime rates are stable or declining, academics, editorialists and perceptive politicians cry out for less expensive alternatives to incarceration. But when crime rates are increasing and expensive rehabilitation programs are exposed as poor substitutes for good parenting, law enforcement, editorialists and perceptive politicians cry out for tougher sentences. It’s of course more complicated than that, but the fact is our approaches are clearly cyclical in nature. Right now we are clearly in a mode to emphasize alternatives to incarceration. And I strongly urge CDAC to be a constructive player in the discussions, because, given the current philosophical underpinnings of the Colorado legislature, public safety could be seriously undermined if we don’t become constructively involved and speak out loudly and clearly on behalf of the public.
Another change I’ve noticed over the years has to do with media coverage of the courts. When I started as a prosecutor in 1977, all the newspapers of any size had reporters that covered the court beat virtually fulltime. Most of them were very savvy, knew the rules of engagement and were respectful of the limitations on the nature and extent of information that could be supplied by prosecutors.
I don’t know if you’ve noticed, but there are very few savvy newspaper court reporters around anymore and court coverage in the electronic media can be problematic. TV reporters in particular have very little savvy or sophistication about court matters and they’re hell bent on getting a good story regardless of ethical constraints.
I recall when I was U.S. Attorney and we had arrested Terry Barton, a forest service worker, for starting the Hayman fire, the most costly forest fire in Colorado history. I got a phone call from Connie Chung, who was with CNN at the time, at 6 a.m. on a cell phone that no one but people in my office were supposed to have the number for. She assured me our conversation would be off the record. Luckily, I recalled she had told Newt Gingrich’s mother the same thing before getting her to say something very controversial that wound up on 60 Minutes, and I declined to talk with her.
But while court reporting has changed, my advice for dealing with the media has not. The key is absolute honesty, even when it is not reciprocated. You should never lie to the media, but you must be willing to let them know that your ability to be a source for them has significant limitations. Building a relationship of honesty and trust typically means not playing games with ‘on the record’ and ‘off the record’ conversations. A wise old newspaper reporter once explained to me the difference between ‘on the record’ and ‘off the record’. Anything you tell the press ‘on the record’ will be published the next day. Anything you tell them ‘off the record’ will be published next week, after the reporter has covered himself or herself by at least being able to claim to you they have another source.
Now, let me briefly address some of my major concerns about our justice system.
There are a few developments in the criminal law that concern me greatly. I believe that the criminal law is becoming too federalized. We’ve created about 1200 new federal crimes in the last two decades and the trend continues largely unabated. And closely related to that is my concern that our society has become over-criminalized, that to some extent the criminal law has lost its moral bearings. In areas such as health care privacy, environmental laws, import-export laws, administration of public assistance programs, workplace safety and other matters, it’s now possible to commit a relatively serious crime without knowing you’ve done something wrong. That’s not right. Most people don’t know that if they pick up an arrowhead they found in a national forest, they’re committing a felony. I think that’s a problem. The criminal law should have moral bearings. The civil law is more than capable of dealing with simple negligence and creating sanctions necessary to deter acts which are devoid of moral turpitude. We should be wary of interest groups trying to aggressively pursue their agenda by utilizing criminal law sanctions in areas in which the criminal law has not been traditionally involved.
I’m also very concerned that we recognize the extent to which we are now asking our correctional institutions to serve as our mental health institutions. The fact this has happened really shouldn’t be a surprise to anyone. In 1965, forty-five years ago, there were 600,000 Americans in mental health institutions. Today, despite the fact that the population in the United States has doubled, there are only 60,000 people, one tenth as many, in mental health institutions. Throughout the 70s and 80s we systematically closed mental health institutions with the intention that the patients would better served by community based mental health care. But that vision has only been partially realized. Today there are thousands of mentally ill people on our streets, under our bridges, in many instances committing serious crimes. So it shouldn’t be surprising that the seriously mentally ill make up as much as 25% of our prison populations. In my opinion we should accept the fact that prisons are serving as mental health institutions and resource them appropriately.
Ladies and gentlemen, all of the lawyers involved in the criminal justice system can claim a high calling. Defense attorneys protect the rights of the accused and make the government meet a heavy burden of proof before their clients lose the presumption of innocence. They naturally see themselves as standing between the accused citizen and the awesome power of the government.
Judges are the essential referee who assures that both sides adhere to the prescribed rules and adjudicates the various disputes between the parties. Upon a conviction, the judge is looked to for Solomon-like wisdom to impose fair punishment within the bounds of the discretion afforded them by the legislature.
But the fact is there can be no justice unless someone takes wrongdoers to task in the first place. To paraphrase Edmund Burke, ‘Evil will flourish if prosecutors are lazy and incompetent.’ The prosecution business is no place for dilettantes and part-timers.
It’s my observation that good prosecution offices need both dedicated career prosecutors and committed and enthusiastic lawyers who want to spend time as a prosecutor on their way to other legal pursuits. Career prosecutors bring the wisdom of experience, the institutional memory, the sense of proportion and fairness that every good public law office must have and can only get from a veteran of many battles. But a constant supply of bright and eager non-careerists is essential to give a public law office creativity and vitality. You need lawyers to ask good questions and lawyers to give good answers. An office with too few career prosecutors can be overzealous and inconsistent. An office that’s too heavy with career prosecutors can become staid, bureaucratic and lacking in passion.
For those of you who do move on to other pursuits, I can tell you with a great degree of confidence you will look back at your time as a prosecutor as the most interesting and challenging work of your career. And most of the former prosecutors I talk to freely acknowledge that the time they spent as a prosecutor is the most fun they’ve had as a lawyer and often times the most meaningful experience they’ve had as a lawyer. They typically indicate they’ve never recaptured the collegiality and sense of teamwork they felt as a prosecutor. As U.S. attorney I regularly interviewed successful lawyers who were willing to give up incomes of $200,000 to $500,000 to come to work as an assistant U.S. attorney. They’d come to the conclusion they needed to make the change to put greater meaning into their life as a lawyer. As attorney general, I’ve hired several successful veteran lawyers from private practice who were seeking to recapture the collegiality and sense of purpose that only a public law office can give them.
For those of you who have decided to make the DA’s office a career, I thank you. I hope you have come to the same conclusion I have. When all is said and done, passionately pursuing and promoting the rule of law is not a bad way to spend your life.
And whether you make prosecution, investigation or administration in a prosecutor’s office a career or not, all of you, when you’ve been at it as long as I have will realize something else. While you remember all the great cases, all the drama and intrigue of the investigations and the courtroom proceedings, what will leave the most indelible impression on you is all the people you’ve encountered. It’s the people who really make your work in the prosecution business so meaningful and interesting. It’s a great privilege to work with people of character and unwavering purpose, with people of high integrity who bring passion to the task of pursuing justice.
And please, all of you, appreciate what a great organization the Colorado District Attorneys Council has been, is now and can be in the future. This organization has helped shape the law and the criminal justice system in Colorado for many years. This organization has provided fantastic training to thousands of prosecutors over the years. We have a state with highly professionalized prosecutors because of CDAC. And we should never forget that we all stand on the shoulders of those who laid the groundwork for us. Lawyers, investigators, staff and administrators who have dedicated a great deal of effort through the years to make this organization what it is. We owe it to all of those who have gone before us and worked so hard for CDAC not to let politics, budgets, personalities, or anything else stand in the way of doing whatever is necessary to make sure this organization survives and thrives into the future.
Ladies and gentlemen, we are all privileged people. Everyone of us in this room has the opportunity on a day-to-day basis to be engaged in a battle between good and evil. That sounds dramatic but it’s absolutely true. And very few citizens have the opportunity to be engaged in that battle in a way that brings meaning and purpose to their life and service to their community. But we do.
So when you leave this conference and return to your offices, and when many of you walk into court again and take on the task of representing the People of the State of Colorado, be very cognizant of the great privilege and daunting responsibility that’s involved. I’m convinced there’s no better way to serve your fellow man.