The Manhattan district attorney, Cyrus Vance, Jr., is facing a torrent of criticism for his handling of the Dominique Strauss-Kahn case. Some of this may be justified-whether he rushed to judgment in seeking an indictment before he had gathered all the facts, for example. But much of the condemnation of his decision to dismiss the case reflects a fundamental misunderstanding of the American criminal justice system, and particularly the role of the prosecution.
Evolving from British common law, the American judicial system has become adversarial in nature-two sides squaring off before a judge and jury. By contrast, the European system is described as "inquisitorial." In most European countries, the judge or magistrate supervises the investigation, gathering facts, talking to witnesses. In America, the prosecution, working through police, performs this function.
In the American system, each side marshals the facts and evidence most favorable to its case, in civil as well as criminal proceedings. From this, the truth is supposed to emerge. It is sometimes called "trial by combat," and it has effectively become a game with each side wanting to win in the courtroom much like on the tennis court.
The role of the prosecutor is profoundly different from that of the defense counsel. Mr. Vance's responsibility was not to convict Dominique Strauss-Kahn. "The duty of the prosecutor is to seek justice, not merely to convict," says the American Bar Association, which sets the standards and ethical guidelines for lawyers. Expanding: "Although the prosecutor operates within the adversary system, it is fundamental that the prosecutor's obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public."
One of the rarest, and hardest things for a prosecutor to do is what Mr. Vance did-dismiss a case when the facts don't stack up, or simply when he does not believe beyond a reasonable doubt that the defendant is guilty.
Many years ago, the Los Angeles district attorney Stephen Trott had a firm grasp on the prosecutor's role. When a deputy would come to him and say that he had an ethical problem, that he had concluded that the star witness in the case was lying, Trott would say, "You don't have an ethical problem. You don't have a case. Dismiss it."
Too rarely does this happen. There would be far fewer men and women on death row and in jail generally if prosecutors followed the advice from Trott, who was no bleeding-heart liberal-he served five years as a senior lawyer in the Justice Department during the Reagan Administration, and he now serves on the Ninth Circuit Court of Appeals. For Trott, the standard is set by the motto inscribed on the Justice Department building in Washington: "The government wins when justice is done."
In their desire to "win," many prosecutors equate justice with conviction. That may hold in most cases, but it is not axiomatic.
The role of the prosecutor can perhaps be best understood by contrasting it to the role of the defense counsel. The latter has far more latitude in seeking to gain an acquittal for his client than the prosecution does in seeking a conviction, though this is often forgotten by the prosecution and not realized by most Americans. The defense lawyer may do almost anything short of putting a witness on the stand knowing that he will lie. Even if the lawyer thinks his client is guilty, he must defend him zealously. If a prosecutor has doubts about an individual's guilt, he should not proceed with the prosecution.
The prosecutor "must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime," Justice Byron White wrote in landmark Supreme Court case United States v. Wade. (The issue was the right of a suspect to have a lawyer present during a line-up.) "But defense counsel has no comparable obligation to ascertain or present the truth," White continued. "As part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth."
Finally, Mr. Vance has been criticized by some pundits for "leaking" damning evidence to Mr. Strauss-Kahn's lawyers. Again, this reflects a lack of knowledge about the criminal justice system. The United States Supreme Court has stated unequivocally that the prosecution must turn all evidence to the defense, and especially any potentially exonerating evidence. Indeed, the court has even said that the prosecution must look for potentially exonerating evidence.
Thus, however much Mr. Vance may have stumbled at the beginning, and whatever happened in that hotel room, in the end, in turning over all evidence to the defendant and in ultimately dismissing the case, he fulfilled his highest ethical obligations as a prosecutor.