By DISTRICT ATTORNEY MARIE BRODER
Prosecutors engage in the acts of mercy on a regular basis. So we are clear, I mean mercy in the sense that you show compassion or forgiveness towards someone that is within your power to punish.
The decision to pursue criminal charges against someone is an enormous responsibility. While a judge has ultimate control over the sentence that a defendant receives, the District Attorney’s Office has the sole power to determine which charges to bring. Typically, the more charges that are brought, the higher the consequences.
Of course, I instruct my assistant district attorneys that no charge should be brought unless they are confident that there is sufficient evidence to prove the defendant’s guilt beyond a reasonable doubt.
The way prosecutors most often show mercy is where a defendant is willing to accept responsibility for what they’ve done. Accepting that responsibility warrants a plea offer that might result in a lesser sentence than the law might fully allow.
Similarly, if someone is willing to testify against their partner in crime, who does so at their own peril and risk to their family, we can show mercy by trying to reduce their charges or ask the judge to impose a lighter sentence.
Even then, a judge can reject a plea bargain and force the parties to reach a different result or try the case. Sometimes the judge’s rejection of a plea bargain might reflect his or her own desire for a different version of mercy. That is their law-given prerogative.
But mercy doesn’t end when deciding charges or seeking approval of plea bargain. Jurors can show mercy as well. A jury is only supposed to decide whether the evidence has proven each charge beyond a reasonable doubt. They are prohibited by law from considering a defendant’s potential sentence. But they still do. Many times, someone who had a more passive role in a criminal scheme walks away from trial free or the jury finds them guilty of a lesser charge.
A trial judge can show mercy yet again in sentencing. Judges have great discretion in the amount of jail or probation time a defendant faces after a jury reaches a verdict in all but very few serious cases (i.e., murder).
Mercy appears again after a verdict and sentence are issued. A defendant can claim some violation of the law happened during their trial and it prejudiced the result. They can even claim that the attorney that was hired or appointed to represent them was “ineffective” and get a conviction overturned. The trial court judge who heard the case has nearly unlimited discretion to give a new trial and start the process all over again.
Mercy appears again before the Court of Appeals who can agree that there was some error in the process and give the defendant another shot at a trial.
Failing that, the Georgia Supreme Court can show mercy and disagree with the Court of Appeals and give the Defendant yet another chance at a new trial. That Defendant can appeal the Georgia Supreme Court’s decision to the United States Supreme Court.
Once a “direct appeal” of a criminal conviction is exhausted, mercy presents itself yet again when a Defendant can file a Motion for Habeas Corpus. Habeas corpus is a civil remedy, and constitutional right, that allows someone to claim that they are being wrongfully detained in violation of their rights.
This is yet another remedy that allows another (and usually different) state trial court to review what happened and see if the trial somehow violated the Defendant’s rights. The Defendant can seek relief from the denial of habeas corpus yet again before the Georgia Court of Appeals, the Georgia Supreme Court and the United States Supreme Court.
It doesn’t stop there. Federal District Courts can hear claims for habeas corpus. And appeals can go before the 11th Circuit Court of Appeals and United States Supreme Court yet again.
Aside from that, a defendant can petition the Board of Pardons and Paroles to be released early (if their sentence allows it). In death penalty cases, every person is allowed, after all of the above appeals, to seek clemency. A final hearing for mercy. Unlike other states, the Governor of Georgia cannot commute a death penalty sentence, a board of people decides whether the death penalty punishment can go forward.
At each appeal from that original criminal conviction, the words, actions, and even omissions of the prosecution, defense attorney, and judge are reviewed in excruciating detail with the benefit of hindsight.
On appeal, defense attorneys who valiantly fought their cases are now called incompetent in a goal to have them deemed “ineffective.” Minor evidentiary rulings are exaggerated into constitutional violations. And defendants who may have even testified at trial are now deemed by after-the-fact “experts” to be incompetent or somehow intellectually incapable of committing the crime or facing the consequences. The process of seeking a conviction deemed final can take decades.
I don’t begrudge our criminal justice system doing everything it can to make sure a defendant’s rights are protected. I don’t begrudge a defendant seeking every opportunity available to them.
So many opportunities for mercy, but mercy is constrained by the law and the facts of the case. But each step in the post-conviction process is an exercise in potential mercy and at least a chance for some result other than answering for the full enormity of one’s crimes.
And to decide whether mercy is appropriate, the entire focus of the post-conviction process turns to the defendant — their rights, their experience, and whether the justice system has been fair to them.
As a trial lawyer, tasked with convincing twelve strangers from all walks of life that the defendant committed the crimes they have been charged with and seeking a just sentence, one aspect of mercy is totally lost.
It is the act of mercy a defendant could have shown before they pulled the trigger, thrust the knife, or subjected an adult or child to sexual abuse. Prosecutors look these victims or their surviving family members in the eyes every day as they are forced to grapple with choices made by the defendant. We see the terrible consequences of an act of mercy that was never given.
I believe in mercy. My office grants it where it is due. When a Defendant exhausts the many chances for mercy that the law affords them, and which was never afforded to their victim, we will support the full punishment that is due.
[Marie Broder has served as the Griffin Judicial Circuit district attorney since 2020. She prosecutes criminal cases in Fayette, Spalding, Pike and Upson counties and resides in Griffin.]
