A Wider View of Justice
Students in the BU Law Prosecutor Clinic learn the power of prosecutorial discretion.
In one case, the defendant, charged with drunk driving after police found him asleep at the wheel, claimed to have been exhausted from shoveling snow for 19 hours and that he failed physical field sobriety tests because he had knee trouble and diabetes. During cross-examination at trial, a Boston University School of Law student pushed back, asking how the defendant could have shoveled so long with the health problems he blamed for his violation. The jury delivered a unanimous guilty verdict; the defendant lost his license temporarily, was sentenced to one-year probation, and had to complete an alcohol education program.
That’s what justice looks like.
In another case, the defendant was charged with breaking into a vehicle and stealing a winning lottery ticket. But his only link to the crime was his possession of the ticket three days later. Finding there was not sufficient evidence to proceed, a BU Law student instead dismissed the case, even before the defendant’s attorney had filed a motion requesting that remedy.
That’s what justice looks like, too.
The cases, both in the Quincy District Court and handled by Kristen Rogerson (’17) and Hannah Nead (’16), respectively, illustrate the power of prosecutorial discretion, a power BU Law students are taught to handle ethically and responsibly in the Prosecutor Clinic, an innovative clinical offering that is paired with the Defender Clinic in the law school’s Criminal Law Clinical Program. Less than half of accredited law schools in the United States have criminal defense clinics, and clinics that focus on prosecution are even rarer—only 17 percent of schools reported having such a clinic in a 2016 survey by the Center for the Study of Applied Legal Education.
At a time when the nation is focused on criminal justice reform, including the role prosecutors can play in reducing mass incarceration and reliance on punitive sentences, the clinic’s work seems even more valuable. But BU Law’s Prosecutor Clinic has been around for more than 50 years, and its mission has stayed consistent, according to lecturer Brian A. Wilson (’96) who took the clinic as a student and returned to lead it in 2015.
“Not a lot has changed in terms of core philosophies—what we teach and how we teach it,” Wilson says. “Our main goal is to have students become conscientious, well-rounded prosecutors who understand the responsibilities and ethical obligations that come with the job.”
Wilson added that the clinic is always looking for ways to respond to current social issues and calls for change in the criminal justice system, including by developing new ways to prepare students to recognize and address racial and ethnic bias. In the clinic, students learn to see the whole picture, to think about what justice means for an entire community, not just a victim or defendant. The Criminal Law Clinical Program takes a unique approach to developing that fuller view in its students: in their first semester, “junior” students work on both prosecution and defense matters simultaneously (in different courts, so as to avoid conflicts); in the second semester, the juniors become “seniors,” and choose one side or the other. In the Prosecutor Clinic, with Wilson by their side in the Quincy District Court, students handle mostly drug, drunk driving, and theft misdemeanors and felonies.
Wilson, who recently spoke about the model at the Association of American Law Schools Conference on Clinical Legal Education, says the program is unique and gives students interested in becoming prosecutors a perspective they otherwise wouldn’t be able to get.
“We’re literally different from every other program in the country,” he says. “You’re taking aspiring defenders and prosecutors and putting them together in class and on cases. That really promotes some interesting, healthy discussions from different perspectives. As a prosecutor, it’s important to remember that the defendant is not just a name on a file. It’s a real person you’re prosecuting, and what you do affects that person’s life for better or worse.”
Half of the students who have taken the Prosecutor Clinic since Wilson took it over have gone on to positions at district attorneys’ offices around the country. One of them, Nicole Theal (’18), now works in the Bronx County District Attorney’s Office in New York. She says she draws on the lessons she learned in the clinic every day. Wilson, she says, challenged her to examine her assumptions and ideas, even when he agreed with her.
“He is the best teacher—the best role model I could have had,” says Theal, who knew she wanted to be a prosecutor going into law school. “Most people had to go to a DA’s office to get this kind of experience. I was able to get it in house.”
Hannah Nead, who won the Association of Corporate Counsel’s Northeast Law Student Ethics Award for her work on the lottery ticket case and now works with foster youth as a juvenile dependency attorney in California, agrees. In another matter during the clinic, she successfully prosecuted a drunk driver with the help of a “perfect eye witness”—a school principal. The jury returned a guilty verdict in under an hour.
Both cases, she says, felt “equally like the right outcome.”
“Brian always taught us to focus on what’s in front of you—what you can pursue ethically,” she says. “Can you meet your burden in your head? If not, you can’t bring that case to a judge or jury.”
When it comes to justice, “we don’t think in terms of wins or losses,” Wilson says.
“The right outcome may be a conviction at trial or an acquittal at trial or a dismissal or anything in between,” he says. “We teach our students that there is a right thing to do, and that doesn’t always mean someone goes to jail or that someone is even convicted.”
Reported by Rebecca Beyer
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