SHAWN TURAK: AN OBSERVATION OF ASSISTANT PROSECUTING ATTORNEYS

A Field Research Project Submitted in Fulfillment Of the requirements of POLS 331 (Criminal Law Policy)

Submitted to Prof. Richard Brisbin

By Stacey L. Stoneking

West Virginia University November 2011

TABLE OF CONTENTS
TITLE PAGE Introduction Assistant Prosecuting Attorneys Shawn Turak Education, Training, and Selection Required Education On-the-Job Training Selection to Position Routines Motions and Briefs Hearings Issuing Subpoenas Plea Bargaining Bail Trials Interactions Engaging Other Attorneys Contact with Judges Victim/Witness Interaction Consultations with Police Officers Victim Rights Groups Communication with Superior(s) Jury Involvement Ethics Disclosure of Evidence Conflict of Interest Issues with Current Court System Subjects of Interest Effects of Media Portrayal Differences Between Jobs Analysis and Implications Adversarial Ideals versus Bureaucratic Politics Power of Legal Professionals Effects on Order in the Community Implications for the Constitutive Function of Law and Legal Action Law About Enforcement of Norms (Bureaucratic Model) Adversary Process Rendered Symbolic? Conclusion 1 4 5 5 4 5 5 5 1 5 5 5 5 5 5 4 5 5 5 5 5 5 5 4 5 5 5 1 5 5 5 5 5 5 5 5 1

INTRODUCTION

Assistant Prosecuting Attorneys

The role of the assistant prosecuting attorney is to represent the victims of criminal activities. The American criminal justice system centers on the role of the prosecutor (Neubauer and Fradella, 138). They are involved in a variety of judicial functions, such as issuing subpoenas, writing motions, and, less frequently, arguing trials, as well as remaining in constant communication with a multitude of judicial actors. They are a center of power in the criminal justice process and are opposed in that power by defense attorneys and judges.

Shawn Turak

Shawn Turak is a West Virginia assistant prosecuting attorney for Ohio County. She is typically assigned cases dealing with non-violent crimes such as grand larceny, forgery, fraudany white-collar crimes and also the sexual assault cases (primarily adult victims anywhere from the age of twelve and up) (Turak). The interview was conducted with Turak on Tuesday, November 22, 2011 at 2p.m. in the Prosecutors Office of the City County Building in Wheeling, WV.

EDUCATION, TRAINING, AND SELECTION

The position of attorney has continuously been viewed as prestigious occupation. The profession requires a great deal of higher education, training, and skill. However, the position of assistant district attorney is a small field and requires that your accomplishments be notable in order to gain favor for selection.

Required Education

The position of assistant district attorney requires a bachelors degree from an accredited university, a three-year law school degree, and passing of the bar exam for the

state(s) in which you choose to practice. Shawn Turak received her college degree from Wake Forest University in North Carolina. She then attended law school at the University of Pittsburgh. Due to relocating, she passed the bar exams and is licensed to practice law in Pennsylvania, Maryland, and West Virginia (Turak). Further education is required throughout an attorneys career. The law is always changing; this requires attorneys to remain up-to-date on these changing standards. To accomplish this, lawyers are obligated to engage in continuing legal education. Turak stated that she is required by the state bar to participate in twenty-four hours of education every two years (Turak).

On-the-Job Training Training in the legal field has remained relatively unchanged in recent years. For decades, training in prosecutors offices was almost exclusively on the job; it was not unusual for recent law school graduates with no experience to be sent into court on their first day on the job (Neubauer and Fradella, 148). This remains true today; many prosecutors are not given a great deal of on the job training. Without specified training attorneys are left with little familiarity with the day-to-day realities of the profession (Neubauer and Fradella, 147). Turak said that she was permitted to shadow for a day or two, but that, even after receiving a formalized legal education, the integration process into the assistant district prosecutor position tends to be sink or swim (Turak).

Selection to Position Before being selected as assistant prosecuting attorney, Turak spent ten years working with civil cases. She started out in magistrate court which conducts preliminary hearing to determine whether to bind the case over to the grand jury. From that position, the elected prosecutor, Scott Smith, who was familiar with her work, requested her as assistant. This statement affirms Neubauer and Fradellas claim that greater stress is being placed on merit selection (Neubauer and Fradella, 147). Turnover, however, is a problem for assistant district attorneys. The workload and constant criminal interaction weighs heavily on prosecutors. This results in a high turnover rate, with assistant district attorneys only spending three to six years in the position

(Neubauer and Fradella, 147). Nevertheless, Turak has remained an assistant prosecuting attorney for Ohio County for nine years. She admits, however, most people dont like their job as much as I do (Turak).

ROUTINES

As one of the full time assistant district prosecuting attorneys, Turak roughly schedules a forty-hour workweek, however, she stated that when working on larger cases with upcoming trials she can work around sixty to seventy hours a week in preparation (Turak). Turak explained that she is involved in many different functions on a daily basis. She specifically mentioned that she is usually in court and responsible for engaging in hearings, issuing subpoenas

Motions and Briefs Motions and briefs are written documents that request the court to perform a specific action. The motion is a specific request of the court. The brief provides legal support or authority. It states why the facts dictate a certain outcome under the law. Simply stated, the brief provides the reasoning behind the request. That being the case, these two written works are usually combined into one document. Attorneys are constantly using motions and briefs to accomplish many different tasks, such as venue change or questioning interrogation methods. They are more likely to be prompted by the defense counsel. They occupy a significant amount of an attorneys time; however, they are fairly repetitive from case to case. Specific details differ, but the format remains the same.

Hearings If there is an issue before or during the trial that cannot be settled strictly with a motion/brief, then the issue is scheduled for a hearing. The attorneys meet with the judge to argue their aspect of the issue. There may be an optional preliminary hearing to assess probable cause (Brisbin). There are various issues that may be brought to the court before a trial, such as to contest an aspect of pretrial actions. There may be a challenge of the

sufficiency of the indictment or search and seizure. It may be an attempt to disregard evidence through the exclusionary rule, which prohibits the prosecutor from using illegally obtained evidence during trial, or it may be the fruit of the poisonous tree, which is evidence indirectly obtained as a result of a constitutional violation (Neubauer and Fradella, 285). There could also be a bond hearing, in which arguments could be made by the defense counselor contesting the amount set for bond (Turak). There are many possible issues that the attorneys could argue in order to gain an advantage over their opponent.

Issuing Subpoenas Assistant district prosecutors are also responsible for issuing subpoenas. A subpoena is a mandatory request for evidence. The term subpoena is Latin for under penalty, as seen in the fact that the holder of the evidence is punishable by law if they fail to comply. These documents are always directed to the holder of the evidence or records. Subpoenas generally request records, but they could be for any evidence. Neubauer and Fradella explain it well stating under the courts authority, the grand jury may issue a subpoena requiring an individual to appear before the grand jury to testify and/or bring papers and other evidence for its consideration (Neubauer and Fradella, 247).

Plea Bargaining The plea bargaining process is a constant undertaking for attorneys. Plea bargaining involves several subsets of judicial bargaining including plea bargaining, charge bargaining, count bargaining, and sentence bargaining. Turak indicated that she uses each type of bargaining regularly (Turak). According to Neubauer and Fradella, the main reasons for plea bargaining are the risks and expenses of trials. They also argue that plea bargaining gives attorneys the opportunity to individualize justice (Neubauer and Fradella, 318). Turak stated that one of her central motivations for plea bargaining is to save certain victims from testifying (Turak). The prosecutor usually initiates the plea bargaining process, however, the defense attorney is able to initiate the procedure. There are no specific regulations requiring discussions to be made in person or in writing; however, a Boykin form must be filled out to

ensure no coercion, adequate representation, and a general understanding of the action (Neubauer and Fradella, 323). Turak prefers the plea bargain in writing to ensure accuracy and validity (Turak). There are variations on what the penalty will be, Turak stated that precedent doesnt govern what [they] do; it depends on the facts of the case and that it is extremely rare to absolutely refuse to make any offers (Turak). (Turak stated that only one case came to mind where this occurred.) The bargaining offer, according to Turak, is individualized, determined by the facts of the case, the persons criminal history, and the victim and officers input would be a factor (Turak). There is always a possibility that the judge may reject the plea bargain, however, this does not happen very often. In Ohio County, the judges only accept non-binging plea agreements, meaning that the judge is not bound by the plea bargain agreement and that there is discretion of the court (Turak).

Bail Neubauer and Fradella state, bail is a guarantee (Neubauer and Fradella, 260). Its purpose is to ensure the defendants presence at trial. Bail may be a cash bond, a property bond, or you could simply be released on recognizance, which means that the court trusts that you will appear at your trial (Neubauer and Fradella, 260). The influence that an attorney has on bail amounts differs. According to Turak, the influence that she has on the monetary amount varies based on the stage of the criminal process; however, the Eighth Amendment prohibits excessive bail (Turak). The amount set reflects the seriousness of the crime and the defendants flight risk. In 1984, Bail Reform Act permitted the judge to consider danger to the community when setting bail amounts (Neubauer and Fradella, 262). The collateral required to secure personal freedom before trial causes certain people believe that bail is an infringement of the presumption of innocence and disregards the burden of proof required for conviction. Turak disagrees. She states the primary purpose is to secure presence at trial (Turak). The Supreme Court case, U.S. v. Salerno, held that the federal preventive detention law does not violate the Eigth Amendment (Neubauer and Fradella, 262).

Trials Assistant prosecuting attorneys deal with a great deal of cases. Many of which do not reach the trial stage. However, Turak believes they handle a lot of jury trials and said that they handled two in a few month, one was a 3-day sexual assault case trial (Turak). Once a jury has been selected, the trial process begins with opening statements, initiated by the prosecution. The prosecutor will then attempt to explain to the jury the burden of proof and the term beyond a reasonable doubt (Brisbin). After the defenses opening statement, the sequence of witnesses and cross-examinations occurs. After the witnesses have been allowed to speak and are cross-examined, closing statements begin (with the prosecution leading). The prosecution is then allowed a rebuttal after the defenses closing argument. It is then up to the jury and the judge.

INTERACTIONS

Prosecuting attorneys interact with a great deal of judicial system actors. These interactions consume a great deal of their time (Neubauer and Fradella, 151). The method of communication varies between actors; however, personal meeting, telephone, and email are the most common.

Engaging Other Attorneys Prosecutors constantly interact with other attorneys. Turak explained that, in her area, most of the attorneys are local to Ohio County. The public defenders office, for example, has only four attorneys. You tend to know the person you are dealing with and what their style is. One [defense attorney], for example, will routinely go to trial. [Another] routinely likes to plead cases out. (Turak). There is continual interaction throughout the pretrial and trial processes during motions, hearings, arraignment, plea bargaining, and trials. [Attorneys] are the biggest part of who we deal with (Turak).

Contact with Judges The majority of contact with judges is in the courtroom during trials and hearings (Turak). Contrary to popular belief, the judge is more of a mediator in the criminal justice process, leaving the prosecutor to be the central power. Turak explained that Ohio County is part of the 1st Judicial Circuit along with Hancock and Brook County. She tends to work with several circuit court judges, including judges James Mazzone and Arthur Recht (who are assigned to the criminal docket) as well as the four elected magistrate court judges that she works with on a regular basis (Turak). Attorneys occasionally use the limited number of judges to their advantage, to speed the process up by anticipating what each requires or prefers. Turak stated that she probably take[s] into consideration, particularly in the circuit court, different preferences of the judges. As an example of doing this she said that with one particular judge, if something comes up at the last minute he might be more inclined to just address it immediately, whereas, the other judge might want to have a brief written, a motion filed, and consider all the law before making a decision (Turak).

Victim/Witness Interaction The victim, according to Turak, is given a fairly significant amount of involvement in deciding how the case will proceed. For example, Turak takes the victims desires into account before discussing plea bargaining options with the defense (Turak). Attorneys remain in close contact with the victim to discuss the status of the prosecution (Turak). During a grand jury, jury trial, and a bench trial, the prosecution has the right to call witnesses. These witnesses testify in court to present information. Victims are often called to testify on the details of the crime, such as the identity of the perpetrator. Witnesses could be experts (subpoenaed by formality) who are called in to testify the validity of a certain field (psychiatrists, physicians, and forensic specialists are common expert witnesses). These specialists could be referred to the prosecuting attorney or they could be specialists of the state police crime lab (Turak). Police officers are also called upon to testify.

Consultations with Police Officers Attorneys are also in close contact with police officers. Prosecutors consult officers on what charge would be applicable (given the facts of the case) and what evidence will be necessary for that charge or conviction (Turak). As briefly mentioned in the previous section, police officers may be called as witnesses. If an aspect of the investigation is being contested, the police officer that made the arrest or performed the search in question may be asked to testify under oath. Occasionally, attorneys and officers may have conflicting relationships due to the differing perspectives on the law (i.e. stricter penalties for convicted criminals) (Neubauer and Fradella, 154). However, Turak stated that her relationship with the officers she deals with is pretty positive and that those good relations are important to her (Turak). She regularly involves the officers in her cases and takes their opinions into account when considering plea bargains and bail amounts. She stated I solicit their opinions on how they would like to see cases resolved because they do a lot of work to help us be protected and do our jobs well; I think they have just as much say in things (Turak).

Jury Involvement Assistant district attorneys are involved with grand juries and trial juries. The grand jury is responsible for formally indicting individuals. The attorneys discuss their arguments and evidence and the grand jury decides whether to return a true bill, which is a formal charge against the individual (Brisbin). The grand jury members are selected randomly from the citizen pool. The number of jurors that sit on a grand jury varies by state, seating fifteen in West Virginia. If the grand jury indicts, then there is an arraignment to decide if the individual will be held until trial. Assistant prosecuting attorneys also work with trial juries and are involved in jury selection. Turak stated, its not what it looks like on TV (Turak). The judge will conduct the flow of questions to perspective jurors for basic elimination of jurors (Turak). The lawyers, then, are permitted to interview the potential jurors. A certain number of challenges are permitted that will exclude or dismiss certain jurors; these may be challenges for cause or preemptory challenges that require no stated justification.

Victim Rights Groups Victims Right Groups are another actor commonly associated with prosecutors. Two examples Turak mentioned were the Sexual Assault Help Center that advocates for victims of sexual assault and also the YWCA has a family violence advocate that helps with the domestic cases. They are also who we work with on a regular basis and they like to be present for court (Turak).

Communication with Superior Prosecutors tend to be given a great deal of freedom. Neubauer and Fradella explain that one reason is that specific rules or policies are not directly stated (Neubauer and Fradella, 149). Turak admitted that she has a great deal of flexibility and her main reasoning was also that nothing is every black and white here (Turak). Turaks superior, Scott Smith, the elected prosecutor, has a high degree of control over the assignment of cases (Turak), however he puts a lot of trust in us and allows us to use our judgement as we deem appropriate in the cases (Turak). This prosecutorial freemdom directly coordinates with the concern for the power of prosecutors that will be discussed later.

ETHICS

Ethics are a large part of the legal system. Many processes are subject to ethical reforms. Just as the law continues to change, new ethical problems arise which results in a portion of the required continued education for attorneys to be dedicated to "mandatory ethics requirements (Turak).

Disclosure of Evidence One ethical issue for attorneys is the disclosure of evidence. This can get prosecutors in a lot of trouble is the failure to give exculpatory evidence. Exculpatory evidence is anything that could negate or take away the showing of guilt. (Turak). Turak explained further stating that a prosecutor might have a DNA report that shows that the DNA found on the victim didnt belong to the [person] charged with the crime. If that prosecutor neglected

to, deliberately or not (maybe accidentally), failed to turn that over that could eradicate the conviction (Turak). However, attorneys are rarely sanctioned for their actions if caught, the main effect is an appellate reversal (Neubauer and Fradella, 150). Turak mentioned the Brady rule as the biggest ethical rule that governs prosecutorswe have to turn it all over (Turak). Brady v. Maryland (1963) held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process, however, this rule is limited to admissibleexculpatory evidence that is material (Neubauer and Fradella, 282). Turning over this evidence is an obligation that lawyers must submit to to ensure honest justice.

Conflict of Interest Another ethical issue for attorneys is conflict of interest. Prosecutors are prohibited from engaging in representation that would compromise their loyalty to their clients (Neubauer and Fradella, 180). However, Turak argued that even though conflict of interest is seen in the prosecutors office she believes that it is more of an issue from a defense standpoint (Turak).

Issues with Current Court System In terms of fairness, Turak stated, West Virginia Supreme Court of Appeals revised the way it takes cases, now everyone has a mandatory right to appeal and thats good. I think that was a very positive step (Turak). While discussing her area she stated, we have great attorneys in this area, we have excellent judges, we have a good system. There are many issues with the current court system that require consideration. Turak says that she is aware of these issues, but believes that the best solution would be more money for the court system, for the prosecutors office, for the public defenders office. We all could benefit from more resources. It seems like we are always trying to make do with a shoestring budget (Turak). On a more personal note, the only issue Turak found with her position was balancing family life with her workload (Turak). Her area, on the other hand, has a significant drug problem that she mentioned and attributed many of the lesser crimes she handles to those addictions (Turak).

Reforms are proliferating in the criminal justice system, such as reforms concerning bail, court delay, the power of prosecutors, and various aspects of the system. Turak mentioned two reforms that occurred within the last five years. These reforms were the institution of a drug court and a mental health court that are attempting to deal with the drug and competency issues (Turak). She admits that she agrees that the principle itself is a good principle but she is uncertain whether she fully agree[s] with how the drug court handles all of its cases (Turak). Turak explained this stating her belief that the best thing to do with a person charged with a crime is not to throw him in prison, but to try to get him help. If you can do that, if the fact of the case warrant doing that then I think thats a better result in the end for everybody. (Turak)

SUBJECTS OF INTEREST

Effects of Media Portrayal The demand for crime dramas, such as CSI: Crime Scene Investigation, NCIS: Naval Criminal Investigative Service, and the many Law and Order series spin-offs, has increased dramatically. These shows include significant aspects of the criminal justice system. There is extensive upheaval about the inaccuracies of many of these shows; however, they also have unseen effects on the criminal justice system. Neubauer and Fradella comment extensively on Law and Order, stating that it has had a major impact on the American legal system and that it often distorts policing and prosecution beyond recognition (Neubauer and Fradella, 121). Turak explained one consequence of these shows; one continuing education course termed it the CSI effect. She said that this is the tendency of citizens to expect the extraneous amounts of forensic evidence that the media displays (Turak). This becomes a problem when those citizens sit on a jury and refuse to convict a criminal due to this lack of evidence. What the public fails to recognize is that, according to certain experts, upwards of 40 percent of the technologies depicted in crime dramas do not actually exist (Neubauer and Fradella, 354). These shows provide entertainment and an idealistic version of the criminal justice system, they often display prosecutors as the good guys, but these unseen effects are disconcerting (Turak).

Differences Between Civil and Criminal Attorney As previously stated, Turak has remained an assistant prosecuting attorney for Ohio County for nine years. She formerly was working in civil court. She discussed the differences that she saw in the two positions during the interview. You are dealing with peoples lives when youre hereyou are not negotiating dollars and centsthis is how many years of a persons life are you going to take away by seeking punishment in a corrections facility. You are affecting more than one person if that person has a family. Its very real here she said, Its about as real as it can be My eyes were opened up quite a bit (Turak).

ANALYSIS AND IMPLICATIONS

Conflicts Between Adversarial Ideals and Bureaucratic Politics There are many conflicts, too many to mention, between adversarial ideals (law on the books) and bureaucratic politics (law in action). One example of these differences that correlates with assistant prosecuting attorneys is case attrition. Law on the books perspective suggests a mechanical process cases more almost automatically from one pretrial stage to the next. In sharp contrast, the law in action perspective emphasizes a dynamic process cases are likely to be eliminated during these early stages (Neubauer and Fradella, 250). Relationships among the major actors in the criminal justice system, the pattern of informal authority within the courtroom work group, the backlog of cases on the courts docket, and community standards defining serious criminal activity are just a few reasons causing case attrition. This is just one example of many of how ideals are simply not always reality.

Power of Legal Professionals There are political concerns regarding the amount of power held by legal professionals, especially the power of the prosecutor. Power has increasingly been concentrated in the hands of the prosecutor (Neubauer and Fradella, 138). Assistant prosecuting attorneys require and sustain a great deal of control throughout the criminal legal process. Prosecutors occupy a uniquely powerful and highly visible position in a complex and conflict-filled environment (Neubauer and Fradella, 138). Turak agreed stating, there

is a lot of power and you have to be very careful with it (Turak). Prosecutors inadvertently reinforce this power. As discussed, this is another issue that distresses citizens and legal authorities. There are various attempts to establish greater supervision for assistant prosecuting attorneys due to concern that autonomy allows too much unchecked discretion (Neubauer and Fradella, 149).

Effects on Order in the Community Crime prevention is recognized as a legitimate prosecutorial goal (Neubauer and Fradella, 154). The reduction of crime and the chastisement of criminals is essential for order to be maintained in communities. The most effective results are obtained within small, manageable, geographic areasChange is more likely to occur through cooperative efforts or partnerships, rather than prosecutorial dictates (Neubauer and Fradella, 154). Cooperation with others actors in the criminal justice system will achieve more than single-handedly confronting the issue, for example, Turak works with the Victims Rights Groups to help gain awareness and help reduce the issues.

Implications for the Constitutive Function of Law and Legal Action As previously mentioned, Turak stated that believes the best thing to do with a person charged with a crime is not to throw him in prison, but to try to get him help (Turak). This statement proves beneficial in implicating that Turak is not seeking, at least in drugrelated crimes, reprimand for the sake of reprimand. There is a component of bettering the community involved in healing the addictions of its members. This is evidence to the possibility that Turak sees the function of law and legal action as just that, seek justice by maintaining a well-organized, law-abiding community.

Law About the Enforcement of Norms (Bureaucratic Model) The law is constantly changing, as seen in the continuing education requirement for attorneys. The change occurs in response to changing norms. From issues of bail settings in criminal law to the constitutional matters concerning gay marriage, laws change based on the incremental variations of norms. Criminal law is not dictated by precedent, but is a case-bycase evaluation. Trial outcomes are subject to jury decision; jurors are fixated on what is

acceptable. There is decent evidence to argue that the law is about the enforcement of norms, more so than simple decision-making. Legal actors are not attempting to change the world, but rather, protect the status quo. The function of the legal system is to maintain order, not create utopia.

Adversary Process Rendered Symbolic? The adversary process of criminal justice is not rendered symbolic in light of the power of the prosecutor. It is a check on that power. It functions to argue for legal innocence in order to ensure the prosecutors argument is valid (Neubauer and Fradella, 168). The defense attorney is another form of referree for the prosecution.

CONCLUSION

Shawn Turak is an assistant prosecuting attorney for Ohio County in West Virginia. The position of assistant prosecuting attorney was examined based on the responses to an interview conducted in November 2011. The American criminal justice system centers on the role of the prosecutor, which establishes it as a position of power. Assistant prosecuting attorneys represent the recipients of criminal actions. They perform a multitude of criminal legal tasks, interactions, and ethical decisions on a daily basis. Some of the basic tasks discussed were motions/briefs, hearings, plea bargaining, bail, and trials. Interactions of an assistant prosecuting attorney are other attorneys, judges, witnesses, victims, police officers, jurors, victim rights groups, and the elected prosecutor. Ethical issues were also discussed, such as the disclosure of evidence and conflict of interest. The evaluation contains observations concerning the assistant prosecuting attorneys position based on the interview responses; these included questions on the central function of law and conflicts between law in the books and law in action. The occupation is a multi-faceted position of legal power that affects the entire criminal justice system.

PERSONAL CRITIQUE More should have been asked about Turaks feelings toward the law and its function. The duties of the position could have been more detailed, more information on the trial activities, discovery, and arraignment. More definite answers on Turaks opinions of the current court system would have been helpful. More information could have been provided on the different types of jury interaction: grand jury, trial jury More information on her selection to position.

Works Cited
Brisbin, Richard. Interview. Political Science 331: Criminal Law Policy. Stacey Stoneking. 1-29 November 2011. Neubauer, David W. and Henry F. Fradella. America's Courts and the Criminal Justice System. 10. Belmont: Wadsworth Cengage Learning, 2011. Turak, Shawn. Personal Interview Stacey Stoneking. 22 November 2011.