Introducing the Prosecutors

In 1997, Manhattan District Attorney Robert Morgenthau declined to seek the death penalty in a high‐profile case involving the murder of a New York City police officer. Morgenthau announced he would seek life without parole—as opposed to capital punishment—for Scott Schneiderman, accused in the murder of Officer Anthony Sanchez. All district attorneys enjoy discretion in the application of death‐penalty statutes. In fact, they must carefully consider a range of potentially mitigating circumstances that would rule out capital punishment. Morgenthau's general opposition to capital punishment was well‐known, but he had said he would consider individual death‐penalty cases as they presented themselves. New York Governor Pataki called Morgenthau's decision “disappointing,” adding, “In my view, the death penalty should have been sought in this case.” But, as the New York Post editorialized, “the Manhattan D.A. is no softy when it comes to violent crime—and if anybody has earned the right to have a judgment call of this sort respected, it's Bob Morgenthau.”

In making a judgment call in the Schneiderman case, Morgenthau wrestled with what is known as the prosecutor's dilemma. The prosecutor, as the trial lawyer for the government in criminal cases, investigates possible violations of the law, determines the criminal charges, reviews applications for arrest and search warrants, subpoenas witnesses, enters into plea bargains, tries criminal cases, and recommends sentences to courts upon convictions. But the task of the prosecutor is something more. The prosecutor is the representative of the government upon whom the courts and the rest of society impose an ethical standard that transcends the prosecutor's duty to convict guilty persons. In Berger v. U.S. (1935), Justice Sutherland articulated the prosecutor's higher duty of fairness when he declared that a prosecutor's duty is not just to win a case, but to do justice.

The prosecutor's twofold aim, in Sutherland's view, is “that guilt shall not escape or innocence suffer.” According to Sutherland, a prosecutor “may strike hard blows” in trying to convict defendants, but he or she is “not at liberty to strike foul ones.” It is as much a prosecutor's duty “to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”