The Alarming Campaign Rhetoric of Nicole Wittmann
Language is powerful. Nicole Wittmann knows that—as a career prosecutor, her words have changed the lives of thousands involved in the criminal justice system. When she says something, we can only assume she means it, and everything implied by it. That’s why we’ve become increasingly troubled by her campaign rhetoric in the race for Loudoun County Commonwealth’s Attorney. More and more as election day approaches, Wittmann seems to be laying bare her true feelings about the people she prosecutes and those entrusted with the obligation to represent them, in a manner that calls into question her fitness for the office she seeks.
“Wittmann views rights to a zealous defense and a fair trial as obstacles to overcome; there is no honor in protecting them, or in challenging the state to be fairer, more accurate, and more just.”
Put bluntly, Wittmann does not respect the role of the defense in the criminal legal system. She has repeatedly derided her opponent, Buta Biberaj—whose only “sin” is being a defense attorney—for her professional experience, describing Biberaj as “making a career out of coddling criminals” and “attacking victims.” In one instance, she went so far as to suggest that Biberaj’s work as a defense attorney rendered her “dangerous for Loudoun’s children.” Even while cases are still pending trial, Wittmann describes defendants as “offenders” and “criminals,” seemingly indifferent to the presumption of innocence, or even the possibility of innocence. She calls mainstream, bipartisan efforts to improve the justice system a “radical,” “pro-criminal” agenda that “ignores and hurts victims.” Wittmann seems to view constitutional rights to a zealous defense and a fair trial as obstacles to overcome; there is no honor in protecting them, or in challenging the state to be fairer, more accurate, and more just.
The Constitution and rules of professional ethics could not be clearer about how backwards and dangerous Wittmann’s outlook is. The founders created our legal system to be an adversarial one, pitting the state against the defendant, with the overwhelming power of the government counterbalanced by a core of basic rights intended to protect the dignity of the individual in a free society. This core of rights was first codified in the Bill of Rights, where four of the first ten amendments—the 4th, 5th, 6th and 8th—provide direct, explicit protection to individuals suspected of crimes. Among others, this includes the rights to personal autonomy, due process, a fair trial, and trial by jury; the presumption of innocence and the requirement that the government prove allegations beyond a reasonable doubt; and the right to a zealous defense.
“Because justice hinges on the adversarial system functioning properly, a prosecutor who disrespects the critical role of defense counsel jeopardizes its legitimacy.”
None of these rights are protected—meaning the system fails—without defense attorneys to champion them. In fact, convictions can be reversed if defense counsel does not effectively do so; an explicit acknowledgment that justice is only possible when each party in the adversarial process does its job well. Because justice hinges on the adversarial system functioning properly, a prosecutor who disrespects the critical role of defense counsel jeopardizes its legitimacy.
The criminal process is not supposed to be a tug-of-war, where every right asserted is ground gained or lost. To the extent that it sometimes feels like one, the parties are supposed to understand that, despite their desire to win, they will never go undefeated. Justice demands that sometimes the government wins, sometimes the individual wins, and sometimes it’s a push. That said, the prosecutor undoubtedly must have the most nuanced understanding of this dynamic. Unlike a defense attorney, whose sole job is to advocate for his or her client, a prosecutor’s job “is not merely to convict, but to seek justice.” In the words of the United States Supreme Court, a prosecutor’s “obligation to govern impartially is as compelling as its obligation to govern at all” and “its interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
“A prosecutor should seek to protect the innocent and convict the guilty, and respect the constitutional and legal rights of all persons, including suspects and defendants.”
This principle is the foundation underlying prosecutorial ethics. In its Criminal Justice Standards for the Prosecution Function (3-1.2—“Functions and Duties of the Prosecutor”), the American Bar Association states that the “prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances.” Moreover, “[t]he prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”
A prosecutor who has a constitutionally appropriate, ethical view of her work must understand that the system is only at its best when the defense is at its best. She must honor and respect the role of the defense in helping ensure the integrity of every verdict and sentence. If Wittmann cannot do that—and all indications are she can’t—then she should politely step aside, in the interest of balancing the scales of justice in Loudoun County.
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