"I rarely bargain with a defense lawyer based on the true guilt or innocence of the defendant. Instead, the defense lawyer argues that I won't be able to find my witnesses, or if I find them, I won't be able to convince them to cooperate."
Deputy Prosecutor Todd Shellenbarger
Related Articles in this Issue
U.S. Court of Appeals Judge Calls Guidelines "Political Sentencing."
Mike McCarty '90: Breaking the Cycle of Violence
Cleo Washington '85: Fighting "Vindictive Justice"
Todd Shellenbarger '87: Witness for the Prosecution?
A Judge's Defining Moment—Steve Heimann '77
Magazine
Winter 1999
Law & Order in America:
"Remarkable Progress" or the Calm Before the Storm
Witness for the Prosecution
We asked Deputy Prosecutor Todd Shellenbarger: What single change in the criminal justice system would make it easier for you to do your job more effectively?
If I could always count on the full cooperation of the witnesses in the cases I prosecute, I would be a much more effective prosecutor. I strive to settle each case on its merits. Unfortunately, I spend a great deal of time and energy finding witnesses and convincing them to cooperate with the prosecution before I can give complete consideration to the merits of a case.
Most cases are resolved with plea agreements between the State and the person charged with a crime. In my settlement negotiations I rarely bargain with a defense lawyer based on the true guilt or innocence of the defendant. Instead, the defense lawyer argues that I won't be able to find my witnesses, or if I find them, I won't be able to convince them cooperate.This has nothing to do with whether the defendant actually committed the crime or what sentence would best prevent the defendant from committing future criminal acts.
Why are witnesses often unwilling to cooperate? I think there is a decline in the sense of civic duty that, in days past, may have motivated people to "do the right thing" and assist in the enforcement of the law.
People are also often reluctant to cooperate in cases involving serious violent crime as a result of fear for their own safety. If you look at the statistics, this is not a reasonable fear; actual harmful acts against cooperating witnesses are rare. But all forms of violence in society are publicized excessively in the age of the Fox Network, making the perceived fears of the average citizen much greater than reality warrants. I'm often asked by witnesses, in what I consider somewhat minor cases: "Will I be in danger if I testify."
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