The Hard Choice: To Hunker Down or Not

Every person or organization accused of wrongdoing is faced with a hard choice: (1) hunker down, hope it goes away, and if it doesn’t, deny and make them prove guilt; or (2) investigate the allegation and assemble the facts to defend or otherwise resolve. I can’t say that I’ve never seen the first option succeed. Sometimes investigators and prosecutors reach the unaided conclusion that no criminal conduct is present or that they have the wrong person or they simply drop the ball. There may also be some economic justification for the first choice: a disease cured without intervention is always the cheapest relief. But the smart money is on the second.

The Freeh investigation of the Sandusky / Penn State matter, on which I recently commented in this space, provides an example of both approaches in the same matter. Despite learning that Sandusky was a pedophile, Penn State administrators hunkered down for years, fearful of the horrific publicity that would come its way if the truth emerged. And for years the strategy seemed successful. Its head football coach was deified, and the millions generated by the football program continued to roll in. When the truth began to be revealed, more objective heads elected the second route, and the Freeh investigation is the result of that choice. Because Penn State is a public institution that depends for its success on its image and reputation, it had little realistic hope that a passive approach would be in its long-term interest.

Reflecting on the hunker down vs. active participation choice caused me to think about the strategic choices attorneys make in the charging process. Although their loyalties are necessarily in opposition, the duties of prosecutors and defense attorneys are not always so. They often share common goals, and recognizing that truth would benefit both. Prosecutors are obliged to see that innocence shall not suffer, as Justice George Sutherland eloquently put it in Berger v. United States, 295 U.S. 78, 88 (1935).

If a defense attorney can assist a prosecutor in avoiding a misguided prosecution of the innocent, why should not the prosecutor welcome that help? On the other side, prosecutors who have evidence of overwhelming guilt serve their purposes of seeing that guilt does not go free by sharing that evidence (and that means all the evidence, not just the incriminating stuff) at the earliest possible time. I’ve found that defense attorneys who know of weaknesses in the government’s case are usually more successful by making those known to the government at the earliest practical time. All this assumes fair-minded people on both sides of the equation, all trying to fulfill the aspirations of their profession.