Legally Speaking: That Justice May Be Done

John G. Browning Apr. 18, 2011, 5:57am

For many, the common perception of a prosecutor is that of a zealous, win-at-all-costs district attorney eager for a conviction regardless of the evidence.

The spate of exonerations based on belated DNA revelations, particularly in Dallas County, hasn't helped to alter that image. But in fact, prosecutors are charged with the responsibility of seeing to it that justice is done—if the evidence doesn't support a case against a defendant, it is the prosecutor's duty to either build such a case with other evidence or to withdraw the charges that won't hold up.

And no matter how guilty a defendant might seem, he or she is still entitled to a fair trial, complete with the benefit of effective assistance of counsel. The Sixth Amendment to the U.S. Constitution mandates this.

In 1984, the U.S. Supreme Court acknowledged the importance of keeping the playing field level in a case called U.S. v. Cronic. The Court said that "while a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators."

Michigan prosecutor Christine Bourgeois remembered that her job is not simply about building the highest winning percentage, but about doing justice. In 2009, she was prosecuting Jeffrey Gioglio, who was accused of sexually assaulting a female relative of his when she was 6 years old. Bourgeois successfully prosecuted Gioglio, and he was convicted of second-degree criminal sexual conduct and sentenced to a minimum of 80 months in jail.

However, earlier this month, the Michigan Court of Appeals ordered that Gioglio be given a new trial, and Bourgeois' commitment to the integrity of the criminal justice system is the reason why Gioglio had an appeal in the first place. In an admittedly rare situation, Bourgeois wrote to the court administrator after the guilty verdict and shared her doubts that Gioglio had actually had any effective assistance of counsel.

Bourgeois was troubled by the failure of Gioglio's attorney, Susan Prentice-Sao, to mount much of a defense. Prentice-Sao did not make an opening statement, and she didn't put on any evidence. She failed to cross-examine the alleged victim at all, even though the victim's trial testimony differed from her earlier accounts about the acts in question, and also differed from the testimony of her mother.

Prentice-Sao also elected not to cross-examine the alleged victim's phys ed instructor, who testified unchallenged about such hearsay within hearsay as what the girl supposedly told other students about what her uncle had allegedly done.

In addition, Prentice-Sao allowed the girl's grandmother to testify without objection that her client had been abused as a child and that he had a tendency to commit inappropriate sexual acts. In fact, the defense attorney utterly failed to cross-examine any of Gioglio's family members about his limited mental capacity and how those limitations might have affected his ability to effectively communicate.

And while Prentice-Sao did cross-examine a prosecution expert witness who had not even met or examined the alleged victim, she allowed this expert to testify—with no objection whatsoever—that there was "a 98 percent chance" that the girl's allegations were true.

Even here, with these deficiencies, some legal observers might spring to Prentice-Sao's defense and say that we can't substitute our judgment for hers when it comes to such trial strategy matters as whether or not to cross-examine a witness, to give an opening statement, or to simply put on no case and instead argue that the prosecution hadn't met its burden of proof. But there were far more disturbing aspects of Prentice-Sao's "defense."

According to Christine Bourgeois' statement to the court administrator, Prentice-Sao's attitude had been anything but that of a zealous advocate for her client. Bourgeois said that the defense lawyer had said that Gioglio had admitted his guilt, and that Prentice-Sao had expressed a strong dislike, even contempt, for her client.

The defense attorney said the defendant made her "sick," she couldn't stand to even look at him, and she even went so far as to mimic Gioglio's speech impediment.

Bourgeois also testified that the defense lawyer admitted that she could not bring herself to question a child sexual assault victim—not a decision borne out of trial strategy, but instead springing from a desire not to subject a witness she considered truthful (despite the many inconsistencies) to cross-examination on behalf of a client she felt was guilty.

Most shocking, however, was the fact that after sentencing, Prentice-Sao supposedly greeted the prosecutor Bourgeois with "a big smile, a thumbs-up, and the statement 'He's toast!'"

Based on how the defense lawyer had handled the trial, Bourgeois said she felt as though "we were both prosecuting him."

While Prentice-Sao denied some aspects of these charges and tried to explain others, the Michigan Court of Appeals was not persuaded. It held that "Prentice-Sao's performance was so inadequate that, in effect, defendant had no assistance of counsel at all," due to her failure to "meaningfully test the prosecution's case."

The court said she "mounted the feeblest of defenses imaginable," allowing the prosecution to bring a parade of "sometimes highly improper" testimony with "virtually no objection and with no meaningful adversarial testing."

As the court observed, the defendant may very well be guilty and might deserve a lengthy prison term, "but our constitutions do not reserve the right to the effective assistance of counsel to only those defendants who are actually innocent."

By what she did and what she failed to do, the Michigan Court of Appeals said, "Prentice-Sao threw the defendant into the ring with no defense whatsoever."

Gioglio may indeed be guilty, and if so I hope that upon retrial, he's convicted and sentenced to a prison term appropriate to such despicable acts.

But I treasure a system that requires such a verdict to be the product of a fair trial, in which every defendant has the right to confront the evidence against him or her and to receive the assistance of competent counsel. And I applaud the courage of a prosecutor like Christine Bourgeois, whose conscience and integrity told her when a win wasn't really a win.

Thanks to her courage, the system triumphed.

John Browning is the managing partner of the newly-opened Dallas office of the national law firm, Lewis Brisbois Bisgaard & Smith. He may be reached by calling (972) 638-8659 or by emailing

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