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interview: prosecutor viktor theiss

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Theiss, 32, has been an Ass't District Attorney in the Suffolk County DA's Office since late 1996. He was recently promoted to Deputy Chief of District Courts and Community Prosecutions for the Suffolk County District Attorney's Office. Prior to this, he was the supervisor of Roxbury District Court for almost two years and Domestic Violence Point Prosecutor in Roxbury District Court from January 1997 until December 1998.

He's a graduate of the University of Michigan ('90) and Northeastern University School of Law ('93).

How did you get this job?

A lot of hard work. I sent many letters and bugged the hell out of [DA] Ralph [Martin] for quite a while, to become a DA. It was what I'd always wanted to do. It was the reason that I went to law school. And I really wanted to work in Suffolk County, both for the geography and the size of the office and the types of cases that they handled. . .

But you started out in the private sector?

Well, when I couldn't get a job in the DA's office right out of law school, I went and I started off in a few smaller firms, and then I ended up in one of Fidelity Investment's legal departments. . .

And now that your're a DA, is it everything you hoped?

And more. I mean, it's the best job I've ever had. I love being a DA. At the end of the day, I get to go home and know that I accomplished something, and that there are so many times during the day when I'm making these massive decisions about whether we should prosecute, if we do prosecute, what should the sentence be, and I'm working with people that, but for my efforts, would have no voice--victims of domestic violence, child victims, some of the elderly, just people in the community.

One of the projects that I just finished working on before I left Roxbury was a prostitution prosecution program, where we were trying to work with the residents to address what they felt was very serious, and that was the fact that every night and early in the morning, prostitutes were lined up on their street. And as a result, people were coming in and hassling their wives, their girlfriends, their daughters, and it was a huge quality-of-life concern for them. You know, historically those cases didn't get a lot of merit in the court system. And being able to work with them and try and address that, it's rewarding.

How do you decide what you're going to prosecute and what you're not?

I wish that there were hard, fast rules and a little handbook that you could flip open and solve the [problems]. I mean, a lot of it comes from experience. A lot of it comes from working in the office for a while and getting a sense of what office priorities are. For example, one of our office priorities is to really prosecute very seriously handgun cases. I think it's without dispute that the consequences of handguns in our society are so severe and so drastic that whatever we can do to help that is a very worthy effort. So when you see those types of cases, they get extra attention. It would have to be under an extraordinary fact pattern that you wouldn't prosecute a gun case.

Is that a policy that's stated explicitly?

That one's an explicitly stated policy. To dismiss a gun case requires approval from the superiors in the office, because they want to make sure that the gun cases be dismissed not because it wasn't worked up properly, but because there are serious flaws, or the interests of justice require it.

What other cases are given priority?

Domestic violence cases. I think for so long in this society, we've been working towards bringing the problem out of the secrecy that it kind of lay under for so long. And there's been that recognition that they're pattern crimes, that the impact of those crimes goes far beyond just a victim, but to the family and friends that he or she associates with. So the office gives those a lot of priority. . .

What do you do when you have a case that's not a priority? How do you decide [whether to prosecute], when you have something where you could go either way?

I think you have to look at the case as a whole. You look at the defendant's background. You look at the strength of your case, both from the evidence and the law. Do you have those two factors there? Then you try and assess what your goal is. And I think for most of us, our goal is to hopefully prevent a recurrence of crime. . .

When my wife and I decide to start a family it's going to be a sad day.  Because I realistically won't be able to afford to be a DA. So you look at all of that and you see what you can accomplish. And sometimes I think you have to keep a very open mind, because the stories that you initially get, you're getting most of them second- and third-hand. There can be a truth that's more in the middle, and you have to be aware of that. You have to be aware of the cases that you don't need to punish people at the maximum, or where witnesses may not be telling the truth for a host of reasons, either because there's prior conflicts that they've never told anyone about, or because of money, etc. So you have to always keep an open mind and work towards the resolution that's going to be just.

As prosecutors, we're charged with a very strong ethical obligation. We have to turn over all exculpatory information. Our job is not to represent each individual victim, but rather to represent the Commonwealth as a whole, and to achieve justice. It's a great mission to know that when you go to work, you're not just working for some kind of corporate entity, one individual's wishes -- but that you have this higher principle that you act according to.

And do you really feel that in your day-to-day work in your office? Is that feeling really apparent?

Absolutely. I think, more than any other place I've ever worked, Ralph Martin specifically talks about it and he encourages every other person on his executive staff to make that a top priority, that we prosecute only those cases that deserve to be prosecuted. I think the examples have been set recently. Two murder cases went before the court. We said, "Look, we're agreeing that there's new evidence in a case that would require a reversal of a conviction." I think that's rare, and I'm proud to work here as a result, knowing that every day I'm given the backing of my office to do what I think is right. And on occasion, my decisions have been questioned by victims, defense attorneys, and I've received the backing to really kind of take those strong stands.

Is there any time you can think of where you feel like you made a mistake, either that you prosecuted something that you would have rather not, or that you missed something that you feel like you should have?

theiss in court I'm sure, not being perfect yet, that I have. But as a conscious [matter], at the time, now on looking back, I would say no. There's so many of the cases that, if they rise to the level where I'm taking them seriously, I run them by my coworkers. I discuss them with people outside the office to get a general take. Sometimes one of the best ways to get a feel of a case is to talk with family and friends. And while not disclosing any confidential information, you give them an overview of your case and just see how they respond. Because you know, the jury that you put a case before is not going to be made up of fellow prosecutors. It's going to be made up of regular citizens from a variety of professions. So you do that.

I talk to my superiors all the time. It's one of the great things about our office. There are very open lines of communication, because they want to make sure that you have a comfort level. So I think, by the time my cases get ready for trial, I have an excellent sense of where it is and where it's going. Have I been surprised? There have been cases that I've been in the middle of trial and information has come up that I had no way of knowing. The witness suddenly testifies to something that they never told you. And I've actually stopped trial. . .

Your relationship to the victim. Can you talk about that.

It's a tough balancing act. From the outset, if you're going to do your job well, you have to be honest with the people that you're working with. And we tell our victims and our witnesses, "Look, I represent the Commonwealth, and I want you to be aware of that because at some point in the prosecution of this case, our interests could diverge." But the victims are almost always our prime witnesses, so you want them to be cooperative and communicative. So you express to them, "While I may have an interest that's slightly separate from yours, you're always going to have a voice. And I'm going to sit here and be willing to hear your concerns. And if I disagree with them, I'm going to tell you up front."

And I think sometimes [it' s most difficult] with victims of domestic violence . . . because for almost all of them, they started off falling in love with the defendant. As I tell so many of them, if the defendant started beating them on their very first date, there wouldn't be a second date, and they would never commit to this person. . . And it makes it very tough. I mean, we don't give up our loving relationships easily. And most people want to give people second chances. And we can be very understanding of that.

How useful was law school to your job?

Somewhat. I mean, in terms of teaching me how to read statutes and where to find information and how to think about analyzing a fact pattern and applying some law to it, very useful. In terms of how to interact with people and how to keep my calm under fire in the courtroom, not very useful at all. So I think some of it I learned from some trainings, and a lot of it I learned from watching more experienced attorneys. And then some of it, I just learned hit or miss. I mean, the frustrations of not being successful and not being able to coax information that you need, you develop tools to deal with that.

Every victim or every witness sometimes demands a certain style. Some people will tell you what you need to hear when you remind them that, look, they have an obligation to testify truthfully, and that they're going to be under subpoena. Other people, if you take that tough approach, will just clam up. Some people need the reassurance that you're committed, that you're not going away as soon as they talk to you and that they're going to become case number 258. And I think for some of the victims of violent crime, you're asking them to share very painful, intimate details with a complete stranger. And you have to demonstrate to them that you're going to work hard, that you're prepared, that you know what you're talking about, that you're going to be honest with them, and then you can say, "Look, while I know we don't have a long-term relationship here, I hope I've demonstrated that you can trust me to some extent and that I'm not just going to disappear and evaporate."

What made you agree to participate in this film?

I don't know. Part of it's because I was asked, both by my office and the producers. At first I was reluctant, and I wasn't going to say yes, just because I was concerned about an adverse reaction that could come up. I was concerned that: What if I made this huge blunder in front of the TV world? But the producers, we sat down and talked with them, and I think that their interest really was to show it the way it was. They didn't seem to have this hidden agenda, other than to really kind of let people see what they ordinarily wouldn't see.

And, I know so many people are interested when I talk to them about what it's really like, and the public has no real conception, I think, of just how much goes into a case. When you walk into a jury session, that's like the calm of the storm. All the hard work, all of the juggling, all of the various factors that have gone in, drop away and they just see the finished product. So I think, to the extent that the public understands how hard we work and the efforts that get made daily on their behalf, I was hoping at some level that people would then say, "Gee, maybe the prosecutors should get paid a little bit more money," and I wouldn't have to lose so many. As a supervisor, the hardest issue that I faced was turnover. I lost so many DAs during my tenure as supervisor.

Because they couldn't get paid enough to--

--to support a family, to get married. When my wife and I decide to start a family, it's going to be a sad day. What should be a happy moment in my life is going to be very sad, because I realistically won't be able to afford to be a DA. I'm going to have to [go into private practice] unless something drastically changes. And that's going to be one of the saddest days of my life. I mean, I'm not asking to make megabucks. I'd like to make enough that I could put my kids through college and pay the mortgage, just the general aspects of life.

Besides salary, what else is difficult in this job?

I think the caseloads. There is a lot of stress. You're suddenly hearing about aspects of life that most people never hear about. And it's the ugly side of life, oftentimes. There are times when you come home and you're depressed at what people are capable of doing to one another. And you sit there and you question some basic truths of humanity. And it's tough. But I have a good support system. My friends, my wife, they all are very understanding, and you get by. You make those accommodations early on in your career, about the fact that you can't make everything better, that you don't have any magical powers, and that there are times you're going to lose, no matter how hard you work. And I think as long as I know that I tried my best, I go home and I wake up ready to fight again the next day.

How many cases do you have going on at once?

Well, it varies. Now that I'm in a kind of an administrative, supervisory role, I have far fewer. I have two open cases right now. But when I was a line ADA, I would have anywhere from 100 to 250 cases open at a time. No secretary, no assistant. I mean, Roxbury District Court had three secretaries handling anywhere from 8 to 11 ADAs, and they could barely keep up with just making sure that all the summonses went out. So you type all your own letters. You file all your own stuff. You organize everything. . . We had at Roxbury one paralegal and one investigator to work with all of the ADAs. So everyone had to pick and choose very carefully. So the vast bulk of your cases, it was you alone. Whatever efforts you put in, that's what was going to come out on the other end.

What about your relationship with the defense attorneys? Are there friendships? There are the stereotypes of the [heartless] prosecutor and the liberal do-gooder defense attorney.

theiss and lisa medeiros in court I think, like most stereotypes, there's some truth to it or it wouldn't have gotten started in the first place. There are both sorts, but the vast majority are in the middle. . . To be honest, I have an inherent respect for the role that they play. I mean, if it was just me going into court, and there was no check or balance, and there was no one looking over my shoulder and kind of representing the other side, that would be very scary, because it would be very easy to forget certain things, or to get used to that much power. So I respect the role that they play. Do I like it sometimes? No. Their duty is one of zealous advocacy. That's their ethical duty. And sometimes they stretch that duty beyond what I'd like to see. But the vast majority that I work with, play within the rules. They know when their case is weak. They know when their case is strong. And if they try and act otherwise, they lose too much credibility. The only thing you really have in this business is your credibility. It's the same with prosecutors. You can't recommend a maximum sentence for every case. If you go in and you say that the guy who littered deserves the maximum penalty, the same penalty as the guy who committed a violent crime, you're going to get laughed at. You have to be able to look at things on a scale and prioritize, because the system would grind to a halt if every case had to go to trial. . .

What about all those tv courtroom shows? Do you watch The Practice and Law and Order?

Yes, of course I do.

Do you think they're realistic?

No. The entertainment value is outstanding at times, and I think some of the issues are realistic. Like Law and Order, they draw their material from real cases. The problem that they present, from my perspective and from the practical perspective, is they show easy resolution in an hour, for the most part. They don't show the long, drawn out process that a criminal case can be. And the arguments that they make are designed for dramatic value, not legal value. I could never make the arguments that they make on The Practice. My case would be instantly thrown out of court and I would have serious sanctions imposed, if I made some of the arguments that they make. So the problem for me becomes, my jurors, who have watched these shows, there's some expectation that it's going to be like that. You know, they sit back at the trial, "I'm going to get to watch Viktor Theiss do an opening like I just saw last night on TV." And it's not like that. . .

You were just promoted. What's your new position?

Now I am the new Deputy Chief of District Court's Community Prosecution. That's my big fancy title. What my job is now is, I work with the Chief of District Courts, and basically the goal is to . . . increase the lines of communications between downtown and District Court, and provide some hands-on supervision with some of our smaller courts, and to just answer all those questions that can't be addressed by the supervisor in District Court, questions like: "You know, I do have this serious case, but the evidence doesn't hold up. What should I do with it?" I mean, that's always a tough call, when you believe a crime occurred or there's a victim who's been seriously hurt, but yet you just can't prove the case. It's a very tough call to make, and sometimes it's only fair to the supervisor who's down in the trenches in the District Court to be able to have someone a little bit more removed, step in and say--"It's time to let go." When they've made a connection with that victim, and it's a very hard thing to do. It's one of the hardest things to have to explain, that "Look, while I believe it happened, I just don't have enough evidence at this point to prosecute." And the burden of "beyond a reasonable doubt" is extremely high.

How often would you say that you would plead cases out? What's the percentage?

It's hard to say. The vast majority of cases get pled out. If they don't get dismissed for want of prosecution because a victim doesn't show up in court, a key witness doesn't show up, or there's just not evidence, then out of those cases left . . . 90% plead out, if not more. You have to remember, Roxbury, my last year there, handled 8,000 new cases. In the jury session, there were only about a little over 1,000 cases put on for jury trial, if that. So right there, the vast bulk aren't even put on for trial. Out of those that are put on for trial, most don't go to trial. You're lucky if one or two trials happen a week.

There's one point where you say in the film, "No one's happy with this decision. I didn't get what I wanted. They didn't get what they wanted. No one got what they wanted." How often does that happen?

It happens a fair amount. And it is frustrating, because there are times when you want to see more happen, and unfortunately the system won't allow it because it's overworked. The volume is just tremendous. The system couldn't handle every case going to trial. So deciding which cases deserve to go to trial-- I honestly believe that there are cases that deserve the maximum sentence. If you are caught severely beating someone to the point where you fracture their face in five places, if you don't have much of a criminal record, you should still, if you've almost killed someone, you should be facing a significant amount of jail time, if not the maximum. Let's say, 2 years in a house of correction. And I think that case should go to trial. . . But the system, because it's so overwhelmed, will oftentimes step in and say, "Look, we'll give you 9 months in a house of correction, or 6 months in a house of correction." And so it's flawed. It's as good as the actors within the system.

Is that the biggest problem with the way the system works, do you think? Just the fact that there's too much for too few people to handle?

I would say, the vast bulk of the serious problems stem from that, and that alone. I think there's a lot of people with good intentions, that sometimes get caught up in the volume and can't handle it. I think, if the volume was less, you'd have the opportunity to spend more time really weighing and analyzing all the various factors than you do now, and people just wouldn't be quite so burnt out by the end of the day. I mean, by the time you get to Friday, it's been a long week. Everyone's human, from the judges to the defense attorneys to the DAs to the court offices to Probation. So sometimes, when you get worn out, it's tougher to keep your eye focused on larger issues of justice. And that can be tough. . .

Do you have advice for young "wanna be" DAs?

You mean future DAs who are in law school now?

Yes, or kids in high school who are going to watch this on TV and say, "That looks like a cool job."

Hopefully they'll be in a state, like California or Connecticut, where starting salaries are nice, with a better benefit package.

The advice that I'd give is that if you really want to be a good DA, I think you have to really begin focusing on developing interpersonal skills, learning how to interact with a wide variety of people. I mean, you're interacting with police officers, court officers, probation officers. You want to really study in law school some of the underlying procedures and the law that governs them. I mean, the US Supreme Court over the past 50 years has come down with a host of decisions that give guidance to how this is supposed to work. And if you don't understand that well, you're not going to do very well. While you're an undergrad, taking some courses on the criminal justice system will give you a huge leg up. Understanding some of the societal factors that are involved in crime is huge. And just, I think in general, having life experiences that take you outside what your normal role may be.

When I was an undergrad, I worked at a domestic violence shelter, and then I took a class on the penal system, so I actually went to a prison near the college and had to meet some of the prisoners and interact with them and get to know their life stories. And all of that provided a lot of opportunity to change the way I thought about stuff. They were both two of the best classes that I ever took, working at a domestic violence shelter in college is what made me become a DA.

. . . And then I worked with some sexually abused children there, and that was the hardest thing that I'd ever handled at that point. I was 19 years old, and I remember hearing a 5-year-old, and I was sitting in on her intake. And she talked about how her father dug bugs out of her as she drew a graphic picture of a man with a penis. And the interviewer asked her, "Is that what Dad uses?" She said, "Yeah, that's what Dad uses to dig the bugs out with." And at that point, my world kind of just crumbled. I had never seen anything so harsh, in terms of how much innocence had been stripped from this kid. And I found myself saying, "That is so horrible. What can I do to stop that?"

I'll never forget that experience. I kind of keep it in the back of my mind. When I get depressed or when things go tough, I remember that kid. And you say to yourself, "That's what you're arguing for. That's what you're advocating for." Not that you can ever give back what has been taken away, but you can achieve some justice. You can say that there has to be a consequence for an action that bad. So I think if you could, as people are developing, come across experiences like that, I think it provides you with kind of the fire in the belly that you have to have, to be a good prosecutor. . .

Where do you think you'll be in five years? Where do you want to be?

Where I'd want to be? I'd want to be in the DA's Office on a kind of Superior Court senior trial team, trying serious felonies.

Do you think that will work for you?

Not unless I win the lottery or my wife gets the job of all time. Unfortunately, no. That's where I want to be. Where I'll probably be is working in a small law firm, maybe one of my own with some friends of mine. . .

Any final thoughts about your work, the criminal justice system, this program?

I would hope that one message that can be given out is that if viewers sit back and watch the show, someone's [going to say], "Wow, that's just so far removed from my daily life. It really doesn't have much to do with me." But it does, in so many ways. The statutes that we have to enforce, some of the procedures that are in place, are a direct result of legislative initiatives. And to the extent that people are concerned about issues of crime and prevention of crime, they have a tremendous role that they can play in dealing with their legislators and making their wishes known, and saying to them, "Look, these are important issues and we want to see you develop legislation that effectively addresses them." I think that that's very important. . .

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