TV shows like “Law and Order” can give the impression that the path from arrest to conviction is quick, but reality has many more steps.
The differences between the popular TV franchise and real life start with the 911 call, Des Moines district attorney Lisa Schaefer told Burlington Police Department Citizens Academy attendees Tuesday. However, when it comes to showing what prosecutors are doing in the world of law and order, almost every single part of the process is wrong.
“It would be great to go all Jack McCoy, but I am not allowed to do that,” Schäfer told the Citizens Academy participants.
A common occurrence on shows that depict a fictional version of legal proceedings are prosecutors bringing difficult cases before a grand jury that determines whether there is enough evidence to charge an arrested person with a crime. In Iowa, all an attorney needs to do is file a paper telling the court what he believes has happened and the person is formally charged with a crime.
In Iowa, a large jury cannot be convened on an individual basis, as can legal proceedings. Instead, a grand jury is sworn in for a full year and has numerous other duties, including inspecting the county jail.
“It is difficult enough for us to get people to belong to a regular jury,” said Schäfer of the disadvantages of convening a large jury.
While officials must record an offense on an affidavit that was presented to the court when the person was arrested, it is up to the district attorney to determine how the offenses will be charged.
More: How is Crime Treated in Iowa? Here are the differences, from crime to misdemeanor.
Schäfer said she takes into account how police officers feel, but also needs to compare her thoughts with what she can prove in court. According to Schäfer, officials often want to incriminate someone based on information they have received from a confidential informant or on other information that cannot be admitted in court. Schäfer, however, has to stick to what she believes to be proven in court.
Another difference to “Law and Order” is the fictional TV franchise. The prosecutor decides what the person will be charged for and whether to offer a plea. These decisions have to be made by the public prosecutor. In fact, Schäfer said her office could choose to indict a crime even if the prosecutor says they won’t testify or decide not to charge a crime even if the prosecutor is convinced the case will be brought to justice.
That does not mean, however, that Schäfer never takes the feelings of the accusers into account in their indictment decisions.
In Iowa, first-degree sexual abuse is the most serious class of sexual abuse and is punishable by life imprisonment. First degree sexual abuse can be charged if the survivor is seriously injured, either physically or mentally. While post-traumatic stress disorder could be viewed as a serious psychological injury, Schäfer said that survivors may not want the details of their innermost thoughts disassembled for a jury.
“Your therapist would have to testify, family members should testify,” explained Schäfer.
Often times, the prosecutor seems to represent the police or the prosecutor. However, if a prosecutor wants a lawyer, he or she must hire one himself, unless the prosecutor is a minor and accuses another of sexual abuse.
If minors are accused, the court is appointed Guardian Ad Litem, an attorney who acts in the minor’s best interests. Shepherd said while the state requires that an attorney be appointed to represent the minor, there is nothing in the Iowa Code that explains how the person will be paid. For this reason, the lawyer often does not have the hours he spent representing the minor.
The state attorney’s office represents the state of Iowa in court and should focus not only on convictions, but rather on ensuring justice. Schäfer pointed out that sometimes she has to protect the interests of a specific person – the defendant.
“It’s not a bad thing,” said Schäfer seriously.
An example of this are two specific requests that were submitted during a process. Under Iowa law, defense attorneys must make two motions during the process – one after the prosecutor brings their case and one after the defense brings their case.
The motion, after prosecutors presented their case, argues that a jury may not have been able to find the defendants guilty based on the evidence presented by the state. After the defense rests, the argument is that the evidence is so clear that the defendant is not guilty that there is no point in sending the case to the jury.
Sometimes Schäfer has to remind the court that the application was not made, which can result in a conviction being overturned. While the applications are required by law, Schäfer said they almost never work.
“We can get into trouble if the defender makes a mistake and we don’t say anything,” she told the group.
Once a case has been filed, it can take up to a year or more for a process to begin. Requests must be made, evidence gathered, and potential witnesses summoned to appear on tipping.
Filings are similar to legal proceedings, but they are not public and only those directly involved in the case are allowed to know what is happening in the filings.
“(Media representatives) would like to have access to them, but it is all confidential,” explained Schäfer.
The only people present are the district attorney, the lead investigator of the case, the defendant and his attorney, and the court reporter who records every word that is said by both attorneys and witnesses. Not even the prosecutor or, in the case of murders, the immediate family member of the murder victim are allowed to enter the holding room unless they are dropped off themselves.
The purpose of tipping is twofold: First, it ensures that both the prosecution and the defense know what is being said in court. It also gives lawyers accounts to argue for testimony outside of the presence of the jury. As in a trial, witnesses are called in and numerous questions are asked by lawyers for both sides. In theory, neither side would make statements in court that had not been heard in statements.
At some point between the beginning of the trial and the process, attorneys must submit all of the requests that they want to consider. Often times, these motions are filed to limit what statements can be made in court as there are strict rules on what is relevant.
An example of a motion a defense might submit is to hear information about the prosecutor’s previous sexual encounters in a court case of sexual abuse. In Iowa, this information is generally not allowed to be released in court unless the defense has a good reason why the information would be relevant to the present case.
Once all of these steps are completed, a jury can be sworn in and the case can begin.