Volunteer Prosecutors Given a Trial Run

Low on cash and overwhelmed with cases, Massachusetts district attorneys are asking law firms to loan them prosecutors.

Law firms traditionally have given free legal services, known as pro bono work, to help defend indigent people charged with crimes. Such work gives their younger associates valuable courtroom experience.

Volunteer prosecutors, though, are less common.

“Because of cutbacks, volunteer lawyers are almost a necessity to enable many district attorneys and my office to meet some of our basic responsibilities,” state Atty. Gen. Scott Harshbarger said.

The state’s 11 district attorneys have had their budgets cut a total of 20% during the last five years, forcing staff reductions.

As a result, cases could be dismissed or defendants could be acquitted simply because overworked prosecutors don’t have time to build their cases, legal experts say.

“There can also be erroneous convictions if cases that should be screened out aren’t screened out because prosecutors don’t have time to do so,” said Phyllis Goldfarb, a Boston College Law School professor. “This is a system with very high stakes for the people involved, so errors are costly.”

There recently were only four prosecutors available for five jury cases in Boston Municipal Court, said Paul K. Leary of the Suffolk County district attorney’s office.

A judge left without a prosecutor became so irate he threatened to dismiss all the cases on the daily list, Leary said.

David Mark, head of the Suffolk County district attorney’s appeals division, said his prosecutors have two months of appellate work on their desks, instead of the usual month. Another 15 cases remain unassigned.

“This is a pretty common problem, but we may be suffering a particularly acute form of it,” Goldfarb said.

To tackle the problem, Norfolk County Dist. Atty. William Delahunt asked law firms for volunteers last year. A small firm in Quincy provided young lawyers to prosecute district court cases.

Suffolk County Dist. Atty. Newman A. Flanagan is talking with two Boston law firms to establish pilot programs for volunteer prosecutors to work in district courts and on appeals.

Law firms and prosecutors say they both benefit from such programs.

Prosecutors get more time to concentrate on individual cases. The law firms, which continue to pay salaries and fringe benefits of the volunteers, get more experienced associates.

Some see possible problems, however.

Smaller firms might be unable to afford it, and conflicts of interest could arise if law firms did both defense and prosecutorial work on the same case.

“Those problems are easy to overcome in Boston,” said Kevin Burke, district attorney for Essex County. “But in the further-removed suburban counties there aren’t law firms big enough.”

Prosecutors would have to supervise volunteer lawyers, and the time spent doing so might outweigh the program’s benefits, Burke said.

The state Ethics Commission and the Massachusetts Bar Assn. have said pro bono work is permissible with some restrictions and safeguards.