Prosecution Stories
by Bennett L. Gershman
Twelve Tables Press, 2017, 302 pages

Reviewed by Joel Cohen and Dale J. Degenshein

It's easy, oh so easy, to critique or attack injustice as an academic or commentator. There'll be no blowback from an angry judge, aggressive advocate or immovable precedent. The real test of one's mettle is the willingness and ability to fight injustice from inside the justice system.

In the late '60s—in the wake of the iconic 1961 U.S. Supreme Court decision in Mapp v. Ohio which rendered unreasonable searches unconstitutional—police routinely got around evidence suppression by testifying (“testilying”) that, as they approached, the officer saw the suspect drop the contraband, the officer's eye never having left the full view of the discarding transaction. In truth, the drugs/gambling tickets/what-have-you, remained in the possession of the suspect; yet, with this false “dropsy” testimony, there was no illegal search! Everyone was in on it. The defense lawyers “knew,” but couldn't prove the lie; the prosecutors “knew” but couldn't confront the police; and even the judges “knew,” but were hamstrung by case law that put the burden of proving the testi-lie on the defense, or by their idiosyncratically conservative view that the Mapp decision had gone too far.

The legendary Frank Hogan, District Attorney of New York County, could no longer abide what was going on in the courtrooms his assistants occupied. Why? His chief of appeals (and later judge), Michael Juviler, and a young assistant Ben Gershman, both with a conscience, persuaded Hogan, in effect, that they could no longer deny as prosecutors what they knew as men. Accordingly, with Hogan's blessing, they argued all the way to the New York Court of Appeals—inconsistently with the rest of the state's district attorneys—that the burden of proof in these “dropsy” cases should affirmatively be on the People to demonstrate that the contraband was dropped, not the defense to prove it wasn't. The court disagreed, but talk about fighting injustice from the inside; indeed, from the prosecutors' table!

Fast forward, bordering on 50 years. Gershman has become perhaps the most prolific attack dog against injustice, having written several hundred articles about it in academic and opinion pieces, his five books including the bible for defense and prosecution alike, “Prosecutorial Misconduct,” not to mention as a tenured law professor of 40 years at Pace University School of Law.

In Prosecution Stories, Gershman continues to ask the hard questions. Through his discussion of actual cases, some well-known—Ethel Rosenberg, George Zimmerman, Duke Lacrosse—and those less known, Gershman requires us to think about the role of a prosecutor from every aspect of our criminal justice system. Through an examination of violent crimes, corruption cases and political prosecutions, Gershman reminds us that the prosecutor is supposed to be a Minister of Justice who will not strike foul blows, and that our system depends on those who act with that in mind.

Beginning with the grand jury, Gershman demonstrates the inherent and extraordinary prosecutorial power. It is the prosecutor who determines whether to empanel a jury, what it will consider, who it will hear from and what it will charge. Gershman shines a spotlight on the potential for the abuse by a prosecutor and his grand jury, and calls for greater transparency, particularly when considering recent failures to indict. Did the prosecutor treat Daniel Pantaleo with kid gloves when he testified before the grand jury about his chokehold which lead to the Staten Island death of Eric Garner? Or was he confronted with, and asked to explain, the tape of the incident? We will never know, but the decision of what to ask the witness or how to explain the law to the grand jury—it is all within the prosecutor's purview.

Gershman takes us through some questionable practices, which may be common depending on the office. Perhaps most eye-opening is his discussion of how prosecutors “prepare” witnesses, i.e., coach testimony so that “It's possible” becomes “I think so” and eventually “I am sure” by the time of trial (notes which would have to be delivered to the defense are, needless to say, rarely taken during these sessions). This “dark and dirty” secret of America's “system” is actually unethical in other countries because of the very danger that the witness's testimony will invariably be influenced by the prosecutor.

Gershman gives examples of what can happen when, as is permitted in some states, victims have private attorneys who work in concert with the prosecutor. How does that change the dynamic, or even the rules? The potential conflicts of interest become staggering. And then of course there is the prosecutors' ultimate power to “play God.” It is the prosecutor, it has become known to great unhappiness even among insightful judges, who decides who and what to charge, and who may be granted immunity. Will a prosecutor, left with nothing else, charge perjury? Ask Scooter Libby, or Barry Bonds.

In a particularly disturbing chapter entitled “Hiding Evidence: Brady Stories,” Gershman takes us through prosecutors' real-world failures to turn over Brady (which to some prosecutors still seems to be only another Irish name). The Ted Stevens case, where the government not only withheld exculpatory evidence but sent a key witness who might hurt the prosecution back to Alaska, is perhaps the best known. But Gershman also walks us through a Pace University Law School survey where prosecutors were asked whether statements made by a hypothetical victim would need to be disclosed. The results are truly astounding. But one example: “It was all my fault” (12 prosecutors believed it should be disclosed; 12 did not). As this so aptly demonstrates, we are now more than 50 years post-Brady and prosecutors still can't agree on what constitutes Brady material.

Lest one get the wrong idea, Gershman also talks about prosecutors doing “right.” He discusses those who look carefully at their proof (he devotes a chapter to the “Strange Case” against Dominique Strauss-Kahn and the Manhattan DA's decision not to pursue it); review claims of wrongful convictions (the Conviction Integrity Unit in Brooklyn being at the forefront of this initiative); and confess error and ask that cases be dismissed when they are wrong.

Prosecution Stories is an important look at our system, told through actual cases—some of which will be familiar. But at bottom, Gershman forces us to look at prosecutors and recognize that

There are prosecutors, and there are good prosecutors. The goal of any prosecutor is to win; the goal of any good prosecutor is to do justice. Prosecutors ask a jury to convict if the evidence is legally sufficient; good prosecutors won't force a defendant to trial unless they are morally convinced of the truthfulness of their proof and the defendant's guilt. Prosecutors won't look for evidence of innocence; good prosecutors will.

It is those “good” prosecutors whom we need today more than ever.

Still, I suspect, no district attorney has been voted out of office because he or his assistants cut corners or pushed too hard to convict. To deal with the injustices that Gershman tells us about, thus, requires those in the criminal justice system to wage the fight from the inside and defy the inertia of convention. The story that begins this review lends an example of what may still, often need to be done by those in a position to do it.

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan in New York. Cohen worked with Gershman at the NYS Special Prosecutor's Office in the '70s. Dale J. Degenshein is special counsel at Stroock.