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The Situation is Not at All Atypical by  E. Michael McCann District Attorney, Milwaukee County, Wisconsin

McCann is serving in his 32nd year as the elected District Attorney of Milwaukee County, Wisconsin. He received his Bachelor of Arts Degree from the University of Detroit, his Bachelor of Laws Degree from Georgetown University and his Master of Laws Degree from Harvard University. He has been awarded honorary LLD degrees from Marquette University and Marian College. He is the president of the Wisconsin District Attorneys Association, is a past chair of the Criminal Justice Section of the American Bar Association, and has served for many years on the board of directors of the National District Attorneys Association. He has chaired the Committee on Victims of the American Bar Association and is a Fellow of the American College of Trial Lawyers, of the American Bar Foundation and of the Wisconsin Bar Foundation. He is the chairman of the Board of Directors of the Pretrial Service Resource Center. McCann served as the only district attorney on the Wisconsin Criminal Penalties Study Committee, the body charged with detailing truth-in-sentencing legislation. McCann's most noted prosecution was that of Milwaukee serial slayer Jeffrey Dahmer. McCann is the author of "Opposing Capital Punishment: A Prosecutor's Perspective," 79 Marquette Law Review 649 (1996).
Frontline's "Real Justice" Part I provides significant insights into the general criminal justice field and, frankly, is entertaining as well. As a long-term prosecutor, I thoroughly enjoyed observing real justice in Boston's district court.

First, one can't help but observe the very heavy workload carried by Assistant District Attorney Theiss. This situation is not at all atypical in large metropolitan prosecutors' offices. The fact that Theiss would have fifteen files to handle in one day, that he would be involved in numerous hurried hall conferences, that he would be making numerous decisions with limited time for reflection, and that he would be confronting cases which he had only limited time to prepare is a daily reality. One can thoroughly understand why in a conversation with a persistent defense attorney seeking dismissal, the stressed prosecutor incivilly raises his voice, directing a defense attorney to resolve the dispute before the judge.

One sees as well the frequent "recanting" of female victims involved in apparent abuse by a boyfriend or spouse. Often a frustrated assistant district attorney, confronted with such distressing developments and believing that in fact there was substantial abuse, will refuse to dismiss the case stating "I'm not your lawyer, I represent the state." In this common, sad vignette we see the clash between the victims' movement which stresses the right of the victim to play a role in the disposition of the case and a positive good thrust of the women's movement which summons police and prosecutors to aggressively prosecute men who abuse their spouses and girlfriends.

The hurried hallway negotiations, the small crowded offices, the blunt earthy comments of assistant district attorneys and defense attorneys ("you're dead meat"), and the stack of phone messages awaiting the assistant district attorney at the end of the day are all part of the criminal justice practice. Under the Sixth Amendment of the United States Constitution, defendants are guaranteed adequate counsel. The absence of such a constitutional requirement for the state finds prosecutors' offices often grossly underresourced. Let the law student who delights in arcane and recondite exploration of abstruse legal issues be aware that rare indeed will ever be the halcyon hour of research in a library by an assistant district attorney, other than late at night or on weekends.

Typical also is the passionate defense attorney adorned in a florid pink bowtie with long tussled, graying hair. His fierce exuberance at getting a verdict in the drug dealing case in the defendant's favor leads him to claim "the system works." I heartily agree with his effusive pronouncement that "the courthouse is the heart of the community . . ." Honest officers properly did not embellish their testimony to assert they clearly saw cash being transferred, claiming only that from their distant surveillance point, it was something green. A juror commenting on that same verdict states "the entire jury believed he (defendant) was drug dealing but the police didn't have the facts." This is also not an uncommon statement from a conscientious jury. One often sees in the courts the most fierce redneck ready to "hang 'em all," now suddenly vested with the awesome responsibility of determining another's guilt, a careful exaction of proof beyond a reasonable doubt from the state.

Those who have wondered in the past at the sometimes quoted adage, "plead guilty today and walk or contest the case and wait 30 days in jail for your trial," will finally see a realistic explanation. I speak of the Asian Indian man charged with trespassing and larceny at Northeastern University. Sitting as judge is Paul Leary, a man deeply respected by generations of prosecutors for his many years as the number two man in the Suffolk County DA's Office. The accused has at least four times failed to appear for trial and Judge Leary has no alternative but to require a $500 cash bond of him before release. The defendant, apparently an impoverished man, has no hope of raising the bond. At the same time, the state is properly intent upon holding him accountable for his transgressions against Northeastern University. The defense attorney, perhaps a bit dubious about his innocence, must at the same time zealously protect the accused's right to trial while at the same time best serve his interests, which may auger for a guilty plea for which the defense attorney has secured a promise of a recommendation for probation from the prosecution. After what must seem to some a mind numbing back and forth, the defendant pleads guilty, is found guilty, and walks out of court rather than sitting 28 days in jail asserting innocence while awaiting trial. Judge Leary would have been foolish to release him without bail for he most likely would not have appeared. And yet, to get that jury trial, a crowded calendar required at least a 28 day layover. The defense attorney, no doubt overworked but nimble of mind and felicitously graced with a compassionate heart, gently cajoles the defendant to plead guilty.

True to life also is the situation with assistant district attorney Theiss, already calendared for another jury himself, handing a file to another assistant district attorney, telling the ADA that the jury will start in an hour or so. Again, this is not altogether infrequent in a busy, overcalendared prosecutor's office.

Addressing the endemic problem in criminal courts of defendants who fail to appear, the avuncular Judge Dominic Russo in the community-oriented East Boston court asks a known offender, "why not call, we all know you, we are on a first name basis?" The offender, claiming to be clean from drugs for a number of months, by her attorney, pleads for release promising to appear in the future.

Finally, we have a defense attorney constrained to zealously defend a man who in separate incidences involving injury to his mother and his girlfriend is charged with two counts of battery. The defense attorney, advised that both incidences were "accidents," in a soto voce aside, no doubt born of quite reasonable credibility reservations states "he just accidentally hits a lot of people."

The narrow hallways of the Boston lockup are painted white rather than the usual battleship gray of most jails. However, the suffocating closeness, the desperate circumstances in the small cells, and the fevered petitions for release by the prisoners are so real that an experienced prosecutor, even a thousand miles away, can smell the stench of stale urine and unwashed bodies always prevalent in such facilities.

Suffolk County District Attorney Ralph Martin has an envied reputation for maintaining a fine office while at the same time undertaking immensely successful efforts in collaboration with others to reduce the homicide rate in Boston. Martin is a very capable leader who has assembled a quality staff as is apparent from their daily struggles for justice.

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