Where does the buck stop?

ALTHOUGH the defendant had pleaded guilty to a grave instance of child molesting, and although the assistant district attorney (ADA) in charge of the case had a well-deserved reputation for hard-nosed advocacy, the government was asking for simple probation: the street; a walk; no stir time. In short, freedom. As he read through the prosecution's sentencing memorandum, the judge wondered for a moment if the headings had become scrambled, and if he was really looking at the defendant's brief.

In numerous previous cases and educational seminars, this prosecutor had consistently urged incarceration for every sex offense, particularly those involving a child victim.

The rationale, which the judge knew many pediatric mental health professionals shared, was simple: Unless the molester goes out of the courtroom in custody, the child will think that the adult is escaping punishment - and therefore that the adult is innocent and the child guilty.

Yet here was a sophisticated, tough ADA explicitly asking the judge to let loose a particularly culpable offender, a pediatric social worker who had repeatedly taken advantage of one of his 12-year-old clients.

The judge could not understand what was going on. A recent series of well-publicized cases had elicited bitter articles in the local newspapers and even more vitriolic letters to their editors, decrying ``softness'' toward sex offenders. Judges try to ignore such rumblings.

Sentences, however, are properly meant to express, at least in part, the community's moral consensus; so a due regard for public sentiment plays an appropriate role in the complex, delicate process called sentencing.

Recalling the burgeoning interest in child-sex cases, and remembering especially how the prosecutor's boss had once called a televised press conference to protest one of the judge's own sentences, the judge decided that he had best ask for clarification.

``Well, your honor,'' the ADA said, ``it's all spelled out in my sentencing memorandum.''

Although the judge refrained from saying so, the memorandum in fact comprised three pages of unenlightening, issue-skirting mush. He pressed the point.

``Is something impelling the government's leniency?''

``If the court wishes, I would be glad to make a statement on the record,'' replied the ADA.

An alarm buzzed softly in the judge's mind.

The prosecutor was proposing to speak, not write, the reasons for the mysterious soft touch. Only the few people in the courtroom (a group that did not include any reporters) would hear.

True, a court stenographer was dutifully recording the whole proceeding. Yet if later, a newsperson took an interest in the light sentence, the ADA's words would be buried in a stack of notes, and a deadline-conscious reporter would never bother to exhume them. The ``record'' would contain only the bare fact of the probationary sentence, and the story would start: ``Court Walks Another Pervert.''

Properly modulated paranoia is not a disqualifying defect in a public official. The judge decided that any heat should warm the appropriate counsel seat, not the bench. ``I'd rather you wrote your reasons,'' he said, ``and as explicitly as possible.''

The revised sentencing memorandum that came across his desk a week later made everything clear. Although the ADA had used neutral language, it was plain that the government's star witness, the putative victim, was a forensic liability. Under the kind of intensive cross-examination to be expected in a case like this, the ADA feared the child might fall apart, and in doing so, shred the prosecution's case.

A few days later, the judge ran into the ADA.

``I know why you made me explain the recommendation, but I wish you hadn't. The kid's mother read it, and now they both think our office doesn't believe them. He was psychologically fragile to start. This has really pushed him over the brink. That's why I wanted to be somewhat, well, cryptic.''

Walking on, the judge wondered. In addition to imposing a fair sentence and making sure that the public knows exactly which of the participants is taking which position, should the court also answer for any bad effect on the witness resulting from the government's decision to bail out of a plainly losable case?

Is the judge responsible for everyone else's judgment?

Hiller B. Zobel sits on the Massachusetts Superior Court.

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