The 'noble idea': Inside the job of district attorney

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PITTSFIELD — In six weeks and three days, Berkshire County voters will shape the race for the next district attorney, a powerful office that often goes uncontested.

Despite their significance, these races can fly below the radar. Legal experts acknowledge that the job is not well understood by the public.

For the justice system to work, voters need to understand the stakes, said Daniel Medwed, Northeastern University's Distinguished Professor of Law and Criminal Justice.

"Forty-five states elect their chief prosecutor. It reflects this populist idea from the Jacksonian era," Medwed said. "It's kind of a noble idea. The problem is, if people aren't paying attention, there is really no accountability."

Until Sept. 4, three Democratic candidates will try to draw voter attention from summer pursuits and push their own merits, hoping to be the lone campaigner able to cruise to a November win.

The Berkshire district attorney's race is one of six contests for that position this year in Massachusetts. The outcomes of those races will play a significant role, experts suggest, in how the criminal justice system serves the public.

As in most states, Massachusetts district attorneys hold elected positions. That makes them accountable to voters. Once elected, though, a majority of the district attorney's decisions, as the top law enforcement official in their jurisdiction, are made behind closed doors.

Campaigns like the one underway in Berkshire County give voters a chance to scrutinize the candidates' trial experience, management skills and intended policies.

Overall, the most important qualifications for a district attorney are a commitment to justice, high ethical standards, and the ability to marshal and lead staff, according to a range of legal experts.

"They have to have good judgment," Judge Francis X. Spina, a Pittsfield native who retired from the Supreme Judicial Court in 2016, said of district attorneys. "You have to know how to allocate your resources."

A district attorney is not only a litigator who takes the lead role in reviewing criminal charges, overseeing bail requests and assisting prosecutors with trials in his or her jurisdiction. This also is an administrative position responsible for managing dozens of employees.

"The county district attorneys are arguably the most powerful players in our legal system," Medwed said from his home in New Marlborough. "They decide who to charge with crimes, what crimes and whether to offer plea bargains at all."

The power

The district attorney has complete prosecutorial discretion over criminal cases from the moment an arrest is made, and sometimes sooner.

Justice comes across this desk — and that's, in part, why the job pays $171,561 a year.

"I think it's important for the public to understand that in the criminal justice system, it's the DA office that decides what charges are going to be brought, and then at the end of the case, the prosecutor recommends sentencing or the punishment," said Wendy Kaplan, clinical professor of law at Boston University.

"Lots of people think, really, it's the judge that calls all the shots, but realistically, it's the DA," Kaplan said.

While police officers file charges against a defendant at the time of arrest, prosecutors have the ability to alter them in court, based on the evidence and allegations.

Every day, a district attorney uses discretion in handling cases, making decisions that have an immediate impact on people coming before judges.

Because of the high volumes of cases in the district court, it is uncommon for a district attorney to alter charges filed by police at that level. But at the Superior Court level, where sentences can result in committed time exceeding 2 years, the chief prosecutor will sign off on charges presented to a grand jury for indictment, according to David Rossman, director of criminal law clinical programs at the Boston University School of Law.

Some district attorneys will seek the highest possible charge based on probable cause. Others will choose not to pursue cases they feel are not likely to result in a conviction, according to Spina, who served as an assistant district attorney under James M. Ruberto when the office was created in 1979.

A "good" district attorney is not always going to charge defendants with the most serious offense at their discretion, but will make decisions based on the merits of each case, Rossman said.

"Having a DA be someone with sound judgment is a really important thing," Rossman said. "You want someone with the highest commitment to justice. You want, at least, for the candidate to make a commitment to hire people who have more dedication to the ideal of justice than to winning."

Bail requests, pleas

Choices that a district attorney makes can affect a defendant's freedom, even before a case is resolved.

While a judge determines the amount of bail that a defendant is held on, if any, it is the prosecution that makes the request; it is uncommon for a judge to set a bail figure higher than that request.

"The correct legal standard is: Are they likely to show up for court?" Spina asked. "It's not dangerousness. Dangerousness is a separate statute."

If a prosecutor feels that a defendant is a danger to themselves or the public, he or she can make a request to a judge for the individual to be held without bail through a dangerousness hearing.

But otherwise, bail is requested to give the individuals an incentive not to miss their next court hearing.

When examining candidates for the office, Rossman is interested in policies they might have for bail requests.

"Are they going to ask for bail from people who are unlikely to get a jail sentence?" Rossman asked.

Most cases never make it to trial. A district attorney calls the tune in plea deals.

More than 95 percent of criminal cases result in a guilty plea before going to trial, and the severity of the charges read at arraignment play a big role in what the ultimate sentence will be, Rossman said.

"And virtually all guilty pleas are the result of plea bargains," he said.

To resolve matters before trial, the prosecution and the defense have the opportunity to suggest a plea bargain, in which the defendant will accept guilt for some charges, possibly less serious than what initially were filed, in exchange for the dismissal of others.

Sentencing issue

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Rasaan Hall, director of the Racial Justice Program for the American Civil Liberties Union of Massachusetts, suggests that voters consider how candidates for the office of district attorney view mandatory minimum sentences.

Hall is pushing a statewide campaign to increase public awareness about the responsibilities and tools at the discretion of a district attorney. The goal is to empower residents to better assess candidates in their districts.

If convicted of a crime with a mandatory minimum, a defendant can't be sentenced to anything less than that term. As a result, people tend to plead guilty to lesser charges to avoid the possibility of a lengthy commitment to jail or prison.

While some prosecutors might opt to file charges with a mandatory minimum sentence at every opportunity, to induce defendants to take a plea bargain before trial, others will avoid them outside of extreme circumstances, Hall said.

District attorneys might even opt to use criminal charges that come with mandatory minimums as "sentence enhancers," even when they aren't relevant to the allegations of the crime, said Hall, a former Suffolk County prosecutor.

For example, Hall said, some prosecutors have tended to file "drug distribution in a school zone" charges just because drugs were found in a car that was stopped by police in the vicinity of a school, even if there was no evidence suggesting that the defendant planned to sell to minors.

Similarly, charges of drug trafficking, which imply large-scale drug dealing, can be filed when the quantity of a controlled substance exceeds 18 grams, Hall said.

"That's the equivalent of 4 sugar packets," Hall said.

Instead of pursuing trafficking charges for every case that meets the 18-gram minimum, district attorneys might opt to file drug-distribution charges for the same quantity when the drugs were realistically being sold on the street level, Hall said.

While the criminal justice law that Gov. Charlie Baker signed in April eliminated mandatory sentences for some nonviolent drug-distribution charges, and limited the use of school zone charges, other such minimum sentences remain.

Ultimately, because of differences in the prosecutorial styles of district attorneys, criminal cases with similar allegations can end up resulting in vastly different resolutions, experts say.

The paperwork

Outside of litigation and overseeing state police detective units assigned to his or her office, a large component to the job of district attorney is administrative.

The Berkshire District Attorney's Office has a $6 million annual budget, about 80 percent of which pays salaries of more than 50 employees along with rent of their office space, according to interim Berkshire District Attorney Paul Caccaviello, who is a candidate in this year's race.

Those positions include attorneys, support staff, information technology specialists, victim/witness advocates, and people who run community outreach and education programs.

Spina, the former SJC justice, suggests that managerial acumen is a key qualification.

"Have they ever managed an office? Have they implemented administrative procedures for the official handling of anything?" Spina asked. "Do they manage people well? How do they hold their staff accountable for the work they do?"

Kaplan said that one of the biggest responsibilities for a district attorney is "supervision of your troops."

"There is a big management component," Kaplan said. "It seems to me that the DA sets the policy, but it's someone else in the office who puts the policy in the office."

It is not uncommon for young lawyers to take their first jobs after passing the bar exam in a district attorney's office. The usual job trajectory is to start new assistant district attorneys in the district court rotation, Kaplan said.

"What, to me, has always been a little disappointing is that in many cases, the least experienced ADAs are thrown into the district court," Kaplan said. "Really, district court is where most of the action happens."

District court is where most criminal cases are generated, and prosecutors assigned there tend to carry heavy caseloads, Kaplan said.

That court is usually where a person with no criminal history will be introduced to the system, she said.

A district attorney should ensure that the least experienced prosecutors have regular ethics training, and supervisors who will oversee and scrutinize their decision-making, she said.

"They may have a supervisor who has extensive prosecutorial experience, but it's usually the younger ADAs, who really don't have a breath of experience, in court," Kaplan said.

The district attorney also should keep an eye on prosecutors who have served for decades, to be sure they are up to date on the latest training and are still passionate about their jobs, according to Spina.

In the early years of the Berkshire District Attorney's Office, it was more common for prosecutors serving in the office to "graduate" to jobs in private practice, which can be more lucrative, Spina said.

"That's not necessarily true anymore. Being a public servant can be very rewarding, whether you're a prosecutor or a DA," Spina said. "But some people can get stale in a job, and you have to be able to identify that and encourage them to get out."

Case management

A well-run district attorney's office sees to it that cases do not languish. That means defendants should normally be tried within a year of arrest, Spina said.

"District attorneys are very different about that, about how they are going to move those cases," Spina said. "What kind of metrics are they going to use to ensure people don't sit and rot in jail because they don't have money for bail?"

It is a common misconception that police departments call the shots when it comes to criminal prosecution. In fact, it is a team effort with the district attorney's office, Kaplan said.

"Too many people think the district attorneys are just the police mouthpiece — and that's not an appropriate way to look at the DA's office," she said. "They work hand in hand."

With the primary date coming up fast, time will tell whether voters zero in on this contest.

People with questions about the office and the candidates can attend a series of forums and debates starting Aug. 1 at the Silvio O. Conte Community School sponsored by the NAACP.

Haven Orecchio-Egresitz can be reached at horecchio@berkshireeagle,com, @HavenEagle on Twitter and 413-770-6977.


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