FanPost

The Trouble with Justice: A Former Prosecutor's Take on the Investigation of Antonio Smith

Greg M. Cooper-USA TODAY Sports

After reading MHR for roughly eight years, I felt compelled to post for the first time, believing I could offer some insight into the horrible complexity of the Antonio Smith investigation. Bottom line, my heart breaks when I read about allegations like these, knowing that the criminal investigation and possible prosecution will irreparably affect at least the lives of the suspect, the accuser and both of their families. Creating spectacle or engaging in speculation around a case such as this only compounds the injury to the innocent parties, whoever he or she might be, and both of the families. I encourage you to hope for a just outcome and peace for the families.

I have been reading MHR since around 2007. I never posted because the football knowledge of most of the community far surpasses my own. I learned immensely from contributors like hoosierteacher. I am consistently impressed by McGeorge. People may not agree with him at the time, but more often than not he is proven correct in the long run. I have been awed by the collective knowledge on this site, enough so that I have felt my contribution would be little more than clutter. Criminal allegations are, however, something about which I am most knowledgable.

Before moving abroad recently to allow my spouse to work as an attorney in another country, I was a career prosecutor. Over the years I worked my way into roles in which I vertically prosecuted cases. Rather than waiting for detectives to present the results of their investigations, I advised them from the outset, helping them to build stronger cases.

Prosecuting crime is immensely difficult under the best of circumstances, and it is further complicated if (1) it involves acquaintances, (2) the victim is a child, or (3) the defendant is a celebrity. From the little that I know of the case, it appears either two or three of the complicating factors are present.

The American criminal justice system is far from perfect. The falsely accused are sometimes jailed, and the guilty go free. The core of the system, however, is based on an assumption of imperfection. We try very hard to erect barriers to prevent the imprisonment of the innocent.

Discretionary barriers to prosecution

The first series of barriers involve the State’s discretion. States hold a monopoly on the power to deprive citizens of their liberty. One citizen may not strip another of his liberty. That power and burden is held by the government alone. Nonetheless, most criminal cases are initiated by citizen complaints, which typically need to survive scrutiny by a patrol officer, a supervising detective, an investigating officer, a prosecutor, (possibly a grand jury) and a judge. When celebrities are involved, many upper level supervisors also get involved.

A citizen complaint is typically made to a patrol officer following a request for assistance from an emergency or non-emergency police number. Barring unusual circumstances necessitating the immediate involvement of more senior or specialized officers, the those patrol officers summarize their observations as objectively as possible, possibly flagging the case for additional investigation according to departmental criteria. Both the manner in which the officer describes events and the way in which he or she applies policies regarding investigation referrals determine whether the case goes on.

Assuming the case is referred for additional investigation, it is likely to land on a supervising detective’s desk next. This mid-level officer must decide whether or not to allocate investigative resources to the case.

Assuming a detective is assigned, he or she will attempt to acquire as much evidence as possible before making determining whether sufficient evidence exists to seek criminal charges. In the jurisdiction where I worked, the bar they were shooting for was a reasonable likelihood of success at trial where proof of guilt must be beyond a reasonable doubt. In other words, detectives were often certain that someone had committed a crime, but they fell short of the standard necessary to present a case to a prosecutor. In other cases, detectives presented the cases to me despite knowing that their evidence was completely inadequate to compel me to reject the case, allowing them to shift blame from their agency to mine for not pursuing the case.

Before addressing the role of a prosecutor in more detail I should note that the performance evaluations adopted by individual police departments have a profound effect on the efficacy of investigation. Many of the police departments with which I am most familiar evaluate detective performance according to the number of cases that they close. Not solve. Close. For these departments a detective who makes a modest but unsuccessful effort to reach complaining and supporting witnesses may have incentive to close the case, noting the unavailability of essential witnesses, without expending additional effort because if he doesn’t move on to the next case quickly he will look like a lazy slug. Each case can only receive so much attention.

Once a detective believes he has reached or crossed the threshold for seeking criminal charges, he will share the file with a prosecutor who must determine whether or not to proceed.

In some jurisdictions, a prosecutor may simply complete the criminal charging process with paperwork submitted to a judge. In this case, the prosecutor’s judgment alone determines whether or not the case proceeds to a court.

In other jurisdictions, or for certain offenses, a prosecutor who believes she has an adequate case may be required to present the case to a grand jury, a group of citizens assembled to weigh evidence before determining whether to charge the defendant. In this case the grand jury acts as yet another layer of discretion.

Even if a prosecutor is not required to convene a grand jury, it may still be a good idea. It insulates the prosecutor from accusations of bias. For example, many jurisdictions present all fatal police shootings to a grand jury, ostensibly seeking an indictment for murder. The grand jury must then decide whether or not the shooting was lawful. Thus it is not the prosecutor, who probably works closely with the police officers, who makes the ultimate decision. Similarly, in celebrity cases, a wise prosecutor may seek a grand jury indictment even if it is not required, shifting blame for any charging decisions to the grand jury.

Whether or not a grand jury is involved, the final threshold to criminal charges is normally a judge who reviews the charges sought by the prosecutor and (a summary of) the supporting evidence gathered by the police.

I know this was painfully long (Try living it each day at work. It feels much worse.), but I wanted you to see that the criminal justice system uses multiple discretionary filters to help ensure that the we err on the side of caution. We want the guilty to go free, or at the point to not even be charged, rather than risk depriving an innocent of his liberty. In many cases the system works. In other cases it fails. In either instance, criminal charges are not synonymous with guilt. Their absence is certainly not indicative of innocence. Just carrying the case from citizen complaint to criminal charging is a massively complicated undertaking, and the result often has little to do with whether or not the suspect committed the crime.

Relying on acquaintances

Imagine prosecuting a liquor store robbery. A man points a gun in the clerk’s face, demanding the contents of the register. The clerk later identifies the defendant as the robber.

Sure, there are issues with witness reliability, but because victim and defendant are strangers it’s relatively clean. There is no motive to exaggerate, minimize or fabricate.

When you add pre-existing relationships into things it gets much more complicated. Feelings, both positive and negative, can shape memory and testimony. As an investor or prosecutor, you must be ever wary of witness biases. They can, however, have even more profound effects.

Let’s return to the liquor store robbery for a second. The clerk will suffer by assisting the state to prosecute the robber. Numerous detective meetings on the road to criminal charges is just the beginning. The clerk will lose time from his work and family for follow-up investigation, trial preparation and discovery. None of it is fun. All of it will force him to relieve the experience repeatedly.

Unsurprisingly, people have changes of heart, and nearly half of the job of a prosecutor is a frantic race to just get people to show up to court. Once white-hot outrage dims. Interest wanes. Those personal and professional interruptions take their tolls. The cost of cooperation can be high, and that’s for a person whose life is wholly unrelated to the defendant.

Imagine how it feels to testify against someone you know, being forced to wallow in the feelings of betrayal and violation.

Imagine, in the case of all too many domestic violence victims, the financial consequences of helping to send your family’s primary bread winner in jail.

Vengeance. Pity. Anger. Love. Financial need. Prosecutions built upon the testimony of the defendant’s colleagues, friends or family are challenging to say the least.

I know next to nothing about the investigation of Antonio Smith other than what I read in passing here on MHR. The investigation involves a minor and a complaint of a sexual nature.

If a minor is involved, it is extremely likely he or she is at least an acquaintance of Smith. A parent may be as well. The motives of both the parent and child pose major headaches. One or both may have motive to exaggerate. One or both may have motive to minimize. One or both may outright fabricate testimony to either inculpate or exculpate Smith.

I do not envy the prosecutor. This is going to be a mess.

Minors as witnesses

Prosecutions built around juvenile witnesses are often complicated. Although children may be more sympathetic for jurors, there are many pitfalls. Child testimony can be more vulnerable to external influences, like parental pressure. Moreover, they are, by their nature, less intellectually and emotionally developed. As with any other witness, a child may seek to either inculpate or exculpate the defendant, a problem only compounded by age. Bottom line, it can be much harder to interview, evaluate and prepare children.

As the case against Smith would seem to rely, at least in part, on the testimony of a child, the investigators and prosecutors have a much more difficult road of ahead of them.

The celebrity paradox

Neither police nor prosecutors want to be viewed as giving a celebrity suspect a pass, particularly not when an allegation is as serious as this, but celebrities, at least those who are wealthy, have the financial resources to put up a fight far beyond what the ordinary person could muster. Thus police and prosecutors often seek the harshest charges and penalties, pouring much more resources into the investigation and prosecution than normal. In trying to prevent the appearance of a double standard, they often create one.

My personal opinion

When allegations like some sort of sexual misconduct with a minor are made, it’s hard not to react. We want action. We want justice. We want the Broncos, the NFL, police, prosecutors and courts to make everything right again. The ugly reality is that we will probably never know what happened, and whatever the outcome will be is very unlikely to feel like justice for the people who are involved.

Rule of law, which holds that all of us must be subject to and equal before the law, is central to America’s culture and legal system. Combine that with our desire to ensure that the innocent will not be deprived of their freedom even if it means some of the guilty go free (As a side note, the system doesn’t work perfectly. Plenty of innocent people still go to jail.), and, in practical effect, we define justice by completion of a bureaucratic process that frequently gets the wrong result by its very design.

Perhaps worst of all, the process will disrupt the lives of many people in ways that will never be repaired.

If a minor has been victimized, nothing will ever make it right. Nothing will ever make the anguish that he or she has suffered right. The victim will never be whole again. His or her life has been irreparably altered.

If Antonio Smith has been falsely accused, nothing will ever make it right for him. Imagine how your life changes once you are suspected of inappropriate conduct with a child. Even exoneration during the investigation or prosecution won’t completely remove the suspicion. Even if Antonio Smith is completely innocent, his life will be irreparably altered.

And what of the witnesses who will be interviewed repeatedly, possibly being traumatized and re-traumatized? Imagine a parent of the accuser or a member of Antonio Smith’s family. These people are now integral parts of the process. They have done nothing wrong, but they have been or will be victimized by the judicial process. None of their lives will ever be the same, whatever the outcome may be.

The investigation, charging and prosecution of Antonio Smith may have little to do with whether or not he behaved in a way that Bronco Country would expect from one of its players. We are unlikely to ever truly know what happened. We may never be able to say whether Smith was the good guy we hoped he was or the monster we feared he might have been.

Despite our best efforts to create judicial transparency, the public is normally so woefully ignorant of the crucial facts of a case that any attempt to judge a case is absurd. This includes the opinions of the talking heads who are paid to say audience-captivating idiocy even if it’s baseless. Any case, and criminal cases in particular, can turn on small differences in facts to which we will never be privy. Behind the discussion, there are families who have done nothing wrong, but whose lives are now in the most agonizing turmoil.

I urge all of you to be patient. We have little to do that is constructive. Let our miserably imperfect but impossible to perfect system run its course. If you must express something, let it be either an earnest desire for justice that is defined by reaching the right result rather than mere completion of a bureaucratic process or empathy for the shattered lives of the families involved.

This is a Fan-Created Comment on MileHighReport.com. The opinion here is not necessarily shared by the editorial staff of MHR.