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Prosecution v. Defense And The Constitution That Binds Them

14th January 2011
By Daniel E. Bonilla in Criminal Law
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Note: this is the final part in a three-part series on the criminal justice system. See part one: “Criminal Defense Attorneys And The People They Really Protect”; part two: “Prosecutors And The “Technicalities” That Set Criminals Free.”

Very few things in this world make me cringe more than hearing about or imagining a cold-blooded murderer or a rapist going free because of a “technicality” (the term technicality is used here for simplicity’s sake; in actuality, it is the Constitution of the United States that sets an individual free). Reality is, in a society with such a high rate of repeat offenses, a “criminal” who walks today may be arrested again for another offense in the near future. According to the Bureau of Justice, “67.5% of prisoners released in 1994 were rearrested within 3 years.” Such a statistic is quite frightening. On the other hand, according to the Christian Science Monitor, “only between 0.5 percent and 2.5 percent of all felony arrests are ‘lost’ because of unconstitutional searches” (March 9, 1995; the most recent, reliable statistic I could find). The current percentage may be even less than that in light of the Supreme Court’s holding in Herring v. U.S. (2009), which extended the reasonable mistake in good faith exception from U.S. v. Leon (1984) to include errors made due to plain negligence.

Regardless of what the percentage is, the focus should be on eliminating all “technicalities.” In a criminal justice system, the objective should be to attain absolute justice. Such a notion involves lawfully apprehending wrongdoers and providing them with their day in court. Both sides should conduct themselves professionally and reasonably so that the facts of the situation at issue may lead to a conclusion and not the facts involved in an unreasonable law enforcement mistake. As illustrated in “Prosecutors and the ‘Technicalities’ That Set Criminals Free,” unnecessary and unreasonable mistakes can lead to convicted or confessed criminals going free. The public should not have to pay such prices to attain justice.

The common objective in our adversarial criminal justice system involves both sides protecting “the people” and advocating on their behalf. More specifically, prosecutors represent victims and the people within their jurisdictions while operating within the parameters set forth in the Constitution. Criminal defense attorneys represent their clients and the people of the United States. They also operate within the parameters set forth in the Constitution. Putting aside whether the client is innocent or guilty, both sides are representing you, and me, and everyone else. States are concerned with protecting us from wrongdoers while criminal defense attorneys are more concerned with protecting us from governmental intrusions of our constitutional rights. Needless to say, sometimes there is a very fine line separating both sides.

The criminal defense attorney, whether hated or loved, acts as a check of power on the government’s part. Bear in mind what Justice Douglas wrote in his dissent in Olmstead v. U.S. (1928), “[o]ur Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Let us also keep in mind that not all criminal defense attorneys are going to be staunch defenders of our constitutional rights. In fact, some may be engaged in criminal activities themselves (e.g. New York/New Jersey defense attorney Paul Bergin who was charged with murdering a witness *1, California defense attorney and former prosecutor Jaime Harley who was convicted of laundering money for her client *2). To be fair, neither side is completely immune from illegal temptations as noted in the parenthetical with former prosecutor Ms. Harley (see also Connecticut former state prosecutor Mark Hurley convicted of stealing money from crime victim charities *3).

Nonetheless, the system, for the most part, remains balanced. The adversarial approach ensures that so long as both sides have competent and zealous attorneys, a more justified outcome will be achieved (absent corruption, jury tampering, etc.). This, of course, requires that both sides adhere to the Constitution or, in other words, the supreme law of the land. As Thomas Jefferson once advised, “let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution” (eighth Kentucky Resolution of 1798).

- Daniel E. Bonilla

*1) Attorney Paul Bergin. Link:

*2) Attorney Jaime Harley. Link:

*3) Attorney Mark Hurley. Link:
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