Chad Evans Wrongly Convicted

Transcripts, Briefs, Court Decisions, other Documents

Most of the documents here are scanned Adobe .pdf files (printed data file) through which you cannot do word searches with your browser "Edit" and "Find" functions. 


The various steps in the appeals by Chad Evans and Amanda Bortner since 2001 are listed in the "Latest News" of this website.

The documents on the page are for two cases:








6. New Hampshire vs. Chad Evans - Forfeiture of Chad's

    gun collection.

7. Parental Discipline Law Review article and cases

8. Reasonable Doubt articles



Pre-Trial Motions, Depositions and orders

28 November 2000. Further bail hearing scheduled for Chad

14 December 2000 Strafford County Grand Jury Indicts Chad Evans for Second Degree Murder of Kassidy Bortner and several counts of First and Second Degree assault against Kassidy Bortner and Amanda Bortner.

14 August 2001 State proposed supplemental juror Questions

20 August 2001 State Motion for Immediate Revocation of Bail

26 September 2001 State Response to Chad Evans Motion to Suppress Statements

November 2001  Draft Cooperation Agreement between State of New Hampshire and Amanda Bortner  (unsigned copy faxed on 2 November) For discussion of such agreements, see New Hampshire New Hampshire Bar Assn. article, "State v. Bortner: NH Begins to Develop Law on Immunity and Cooperation Agreements in Criminal Cases"  by Kate Morneau, Fall 2004.

5 November 2001 State Petition to Use Grand Jury Testimony at Chad Evans Trial  See Defendant's Answer to State Petition to Use Grand Jury Testimony

5 November 2001 State Motion for Reciprocal Discovery  See Defendant's Assent to State Motion for Reciprocal Discovery

6 November 2001 State Request for Richards Hearing re: Testimony of Amanda Bortner


13 November 2001  State Motion to Admit Evidence of Contact Between Amanda Bortner and Chad Evans  See Defendant's Objection to State Motion to Admit Evidence of Contact

15 November 2001 Notice of State Request for Extended Imprisonment

15 November 2001 State Motion to Admit Amanda Bortner Statements as Coconspirator See Defendant's Objection to State Motion to Admit Amanda Statements as Coconspirator

15 November 2001 State Motion to Consolidate Charges  See Defendant's Objection to State Motion to Consolidate Charges

15 November 2001 State Motion to Exclude Evidence of Chad Good Character

See Defendant's Objection to State Motion to Exclude Evidence of Defendant's Good Character

15 November 2001 State Motion to Exclude Evidence of Windex Ingestion  See Defendant's Objection to State Motion to Exclude Evidence of Windex Ingestion

15 November 2001 State Exhibit List

15 November 2001 State's Motion to Preclude Evidence of Jeff Marshall Prior Acts  See Defendant's Objection to State's Motion to Preclude Evidence of Jeff Marshall Prior Acts

15 November 2001 State Motion to Admit Amanda Bortner Excited UtterancesSee Defendant's Objection to State Motion to Admit Amanda Bortner Excited Utterances

15 November 2001 State's Proposed Questions for Juror Voir Dire

15 November 2001 State's Witness List  See also Undated Unidentified Witness List

15 November 2001 List of State Motions through 15 November 2001

26 November 2001  Transcript of pre-trial hearing to consider State and Defense Motions

27 November 2001 Judge Nadeau's Order Regarding Testimony of Amanda Bortner

28 November 2001 Judge Nadeau Order on Pending Motions  See Summary of Judge Nadeau's Orders on Pending Motions  See also copy of ORDER  at NH Court System Website.

28 November 2001 Deposition of Dr. Margaret Greenwald, Maine Medical Examiner

30 November 2001  Deposition of Dr. Michael Baden Vol 1

2 December 2001 Deposition of Dr. Michael Baden Vol 2

3 December 2001 State's Partial Exhibit List

Defense documents - internal

20 November 2001 Letter from Dr. Michael Baden to Attorney Mark Sisti re: Cause of Kassidy Bortner death

Government Documents - internal

12 December 2001  Letter from Dr. John O'Connor to AAG Robert Carey re: Death of Kassidy Bortner and bone fractures

Letters from Government to Chad Evans Defense Counsel

Letters from Chad Evans Defense Counsel to Government

Trial Transcripts of NH v. Chad Evans, 2001

[The transcripts are available by each trial day and all of the trial transcripts are consolidated here in one, WORD SEARCHABLE DOCUMENT.]

4 December, Tuesday. Trial of Chad Evans begins with jury selection, and the jury was taken on a "view" of relevant sites including the homes of Jeff Marshall and Chad Evans. Opening Statement by State of New Hampshire by Assistant Atty. General, N. William Delker. 2:20 p.m. Defense Opening Statement, by Mark Sisti.  For excerpts of the defense's opening, see the newspaper articles for this day in "Links to Articles - Through 2002 Sentencing"]

Witnesses:  Jacqueline Conley and Kittery Police Dept. Detective Steven Hamel.

5 December, Wednesday. Witnesses: Steven Hamel (continued), Dr. Anthony Bock (York Hospital) and Amanda Bortner (both days)

     Defense Exhibit A Amanda Bortner's handwritten list of day care


      Defense Exhibit B   two phone reports (with same information as

      Exhibit B, if not Exhibit B.)

6 December, Thursday. (pages scrambled after p 59) Witnesses: Amanda Bortner (continued, including both days), New Hampshire State Police Sergeant, James White and Jeff Marshall.

7 December, Friday. Witnesses: Jeff Marshall (continued), Patricia Hocter of the New Hampshire Division of Children Youth and Families, Joshua Bortner Conley, Jennifer Bortner Conley, and William Peirce, neighbor and landlord of Jeff Marshall.

10 December, Monday. Witnesses: Heather Hamilton, manager of Perfumania, employer of Jennifer Bortner Conley; Melissa Chick, friend of Amanda Bortner; Tracey Foley, friend of Amanda Bortner; Jeremy Hinton, friend of Chad Evans; Vanessa Mansson, friend of Chad Evans; Cory Merrill, fellow inmate of Chad Evans; Tristan Wentworth Evans, former wife of Chad Evans.

11 December, Tuesday. Witnesses: Tristan Wentworth Evans (Continued); Cory Merrill; Shannon Gagne, friend of Amanda Bortner; Travis Hunt, housemate of Chad Evans and Amanda Bortner; Irene Ricci, friend of Travis Hunt; and Herbert Leighton, Maine State Police detective.

12 December, Wednesday. Witnesses: Cathy Nuernberg, friend of Amanda Bortner, New Hampshire State Police Detective William Magee, Mary Bullard, friend of Chad Evans and Amanda Bortner, Maine State Police Detective Lance McCleish.

13 December, Thursday. Witnesses: Lance McCleish (Continued); Dr. Margaret Greenwald, Maine State Medical Examiner. The prosecution rested its case.

14 December, Friday. No witnesses. Arguments made to Judge Tina Nadeau about proposed content of jury instructions.

17 December, Monday. Witness: Dr. Michael Baden, pathologist. The defense rested its case. Prosecution rebuttal witness was Dr. John O'Connor, pathologist.

18 December, Tuesday. Including bench conference before closing arguments (separate) and then Judge Nadeau's Charge to the Jury at pages 13-37.   (The judge's Draft of proposed jury instructions might be compared to the actual instructions.)  Closing Arguments by State and Defense. Mark Sisti for the defense at pages 1-33, and Simon Brown for the prosecution, pages 33-61. See REKEYED WORD COPY of Mark Sisti Argument.  See REKEYED WORD COPY of Simon Brown's argument.

   Charge to the jury. Selection of three of the 15 jurors as alternates, who were then excused from deliberations. Jury began deliberations at 12:59 p.m.

Sentencing: Pre-sentencing letters sent to Judge Tina Nadeau, and pre-sentencing hearing and Judgment

   Combined letters,  from 52 people for a total of 105 pages

    Mandy Allard

    Jessica Barr

    Stephanie Bolduc

    Amanda Bortner

    Mary Bullard

    Kelli Copeland

    Kevin Couronis  (letter forwarding original, which is missing)

    Elizabeth Cox 

    Chad Dalessandri

    Linda Dalessandri

    Joshua Dematos

    Michele Denico

    Christopher Dodge

    Trisha Drew

    Chet Evans

    Jason Evans

    Margery Evans

    Pam Evans

    Brian Foster

    Dan Frazier

    Jessica Furr

    Timothy Goodnow

    Brandon Harvey

    Gerri Harvey

    Kathryn Harvey

    Nicole Evans Harvey

    Michele Healey

    Timothy Knowles

    Cheryl LaValley

    Eric Lepisto

    John Loftus

    Barbara MacKenzie

    Vanessa Mansson

    Amanda Mills

    Tiffiny Mills

    Thomas Miner

    Matthew Minott

    Andrea Moore

    Tami Evans Napolitano

    Michele Newell

    Cory Pace

    Kathy Pace

    Kevin Picknell

    Jeffrey Porter

    Elaine and Cammee Royce

    Tom Seymour

    Roy Soskin

    Debbie Thompson

    Kenneth Valenti

    Fran Voudrien

    Diana Woods

    Sharon Zimmerman

11 March 2002 Pre-Sentence Investigation Report  by Senior Probation/Parole Officer Stephen Carlisle

16 April 2002 Transcript of Sentencing Hearing  With statements by Katherine Jackson, Paul Conley, Jacqueline Conley, Jennifer Bortner, Jason Evans, Vanessa Mansson, Jeremy Hinton and Amanda Bortner, and Chad Evans.  See also Handwritten Draft of Chad Evans' Statement.

   See summary of Indictments, Verdicts and Sentences.

   In short:   Six charges of Second Degree Assault (five Guilty, one Not


                    Two charges of First Degree Assault (both Not Guilty)

                    One charge of Second Degree Murder (Guilty)

                    One charge of Endangering the Welfare of a Child (Guilty)

                    One charge of Simple Assault (Guilty)

See document: PRISON SENTENCES for each charge. (Unsigned, undated)

Appeals and other post-verdict Motions for Relief

 1 April 2003  Brief for Defendant Chad Evans in Direct Appeal to NH

Supreme Court  by David M. Rothstein, Deputy Chief Appellate Defender.


2 June 2003 Brief for Appellee State of New Hampshire in Chad's Direct Appeal  by N. William Delker and Simon Brown, Assistant Attorneys General.

2 June 2003 Chad Evans' Motion to Add Issue

[The issue was "Whether the trial court erred by granting the State's

request to give a 'false exculpatory evidence' instruction?"]

19 July 2003 Chad Evans' Supplemental Pro Se Brief

   Two questions presented:  whether trial court erred when introducing hearsay "excited utterance" evidence and whether it was error to introduce "prior bad act" evidence.

21 August 2003. State Reply Brief

    State replied with question: "Whether the trial court properly exercised its discretion in admitting certain statements into evidence under the excited utterance exception to the hearsay rule..."

30 December 2003 New Hampshire Supreme Court Denial of Chad Evans Appeal.    Report of Appeal Decision at 150 NH 416



24 October 2002 ORDER of the Sentence Review Division denying State's Application for Sentence Increase

8 November 2002  State's Motion to the Sentence Review Division for Reconsideration of 24 October 2002 Order

15 November 2002. Defendant's Objection to Reconsideration by Sentence Review Board

5 December 2003 New Hampshire Supreme Court Decision, ruling that the State of New Hampshire could continue its petitions to have the Sentence Review Board Increase Chad Evans' Sentence (and the sentences for two other appellants)

17 September 2004. Hearing before the Sentence Review Division.  Selected pages of Transcript

 4 October 2004 Letter from Amanda to Sentence Review Board

26 April 2005  Sentence Review Board Decision to Increase Sentence

by 15 Years

26 April 2005  Notice of Amendment to Sentence

19 May 2005 Evans Petition to NH Supreme Court for Writ of Certiorari to review Sentence Review Board Decision

19 December 2005  Chad Evans Appeal Brief to the NH Supreme Court

 2 February 2006 State of New Hampshire Appellee Brief to the NH Supreme Court

17 May 2006 Oral Arguments before the NH Supreme Court in cases:

          State of New Hampshire vs. Chad Evans and

          Petition of Chad Evans


6 September 2006 New Hampshire Supreme Court Denial of Chad Evans Petition Challenging Constitutionality of statute permitting increase of sentences (3-0)

4 December 2006 Petition to the U.S. Supreme Court  for a Writ of Certiorari (appeal).

26 March 2007.  Denial of the Petition for a Writ of Certiorari



Information (2) filed against Amanda Bortner

6 November 2001 Information for Endangering Kassidy Bortner from 1

  August through 8 November 2000.

6 November 2001. Information for Endangering Kassidy Bortner from

  8-9 November 2000.

Pre-Trial, and In-trial Motions and orders

15 November 2002. Subpoena to Jeremy Hinton to appear at trial of

    Amanda Bortner on 18 November 2002.


Defense documents - internal


Letters from Government to Amanda Bortner Defense Counsel


Letters from Amanda Bortner Defense Counsel to Government

Trial Transcripts of NH v. Amanda Bortner, 2002

18 November 2002 Day 1 Jury Selection, Motion to Dismiss, and Court Ruling on Motion, Opening Statements by Prosecution and Defense. Witness for the prosecution:  Jefferey Marshall.

19 November 2002 Day 2 Witnesses for the prosecution:  Jefferey Marshall (continued), Detective Steve Hamel, Dr. Margaret Greenwald and Jennifer Bortner Conley.

20 November 2002 Day 3 Witness for the prosecution: Jennifer Bortner Conley

21 November 2002 Day 4 Witnesses for the prosecution: Heather Lavalley, Catherine Nuernberg, Tristan Evans, Melissa Chick, Tracey Foley, Amanda Donnell, MSP Detective Angela Blodgett

22 November 2002 Day 5 Witnesses for the prosecution: MSP Detective Angela Blodgett, NHSP Detective James White

25 November 2002 Day 6 Witness for the Defendant: Travis Hunt, and closing arguments.

   - Closing Argument of Defense Attorney Patricia Wiberg

   - Closing Argument of Assistant Attorney General David Ruoff

3 January 2003 Sentencing Hearing Witnesses:  Jefferey Marshall, Janis M. Marshall-Colby, Jennifer Bortner Conley, Kathy Jackson, Terry Kenny, Amanda Allard, Amanda Bortner.

Sentencing: Pre-sentencing letters sent to Judge Tina Nadeau, and pre-sentencing hearing and Judgment


Appeals and other post-verdict Motions for Relief

2 February 2004 New Hampshire Supreme Court Denial of Amanda Bortner appeal (3-0)


15 August 2003 Civil Complaint for Libel with two counts (6 pages)

3 October 2003 Chad Evans/Defendant Answer to Complaint

3 October 2003  Chad Evans/Defendant Objection to Attachment of House by Marshall/Plaintiff

26 October 2003 Chad Evans pro se Statement regarding lawsuit

30 December 2003  Marshall/Plaintiff Motion to Amend Complaint/Writ

31 December 2003 Chad Evans/Defendant Motion for Partial Summary Judgment

24 February 2004  Affidavit of Jeff Marshall/Plaintiff

27 February 2004 Affidavit of Elaine Shunk

8 April 2004 Deposition of Chad Evans (Volume 1) at the New Hampshire State Prison.

30 June 2004 Deposition of Chad Evans (Volume 2) at the New Hampshire State Prison.

20 July 2004 Deposition of F. Jefferey Marshall  at the law office of Chad's attorney, Robert Fisher, in Dover, NH. 

8 December 2004 Withdrawal of Steven Brown as attorney for Jeff Marshall

4 April 2005 Court Order Dismissal of Case


     (HABEAS CORPUS) (originally filed 20 March 2008)

DOCKET OF CASE 1:08-CV-105 IN NH U.S. DISTRICT COURT  (Entries as of 12 May 2010.

20 March 2008 Chad Evans Motion for Petition for Writ of Habeas Corpus

(See same filing at

19 February 2009 Warden's Motion for Summary Judgment

19 February 2009 Warden's Memorandum of Law in suppport of Motion for Summary Judgment

25 February 2010 Warden's Motion to clarify filing date requirements for Answer or Motion for Summary Judgment

3 March 2010 Judge DiClerico Order regarding filing deadline for Answer or Motion for Summary Judgement

9 March 2010 Warden Answer to Petition for Writ of Habeas Corpus

17 March 2010 Chad Evans Objection to Warden's Motion for Summary Judgment

17 March 2010 Cross Motion by Chad Evans for Summary Judgment

17 March 2010 Memorandum of Law from Chad Evans in support of Motion for Summary Judgment

1 June 2010  Warden's Revised Answer to Complaint

3 June 2010Decision of U.S. District Court Judge Joseph A. DiClerico denying Chad Evans' Challenge to 15-Year Sentence Increase

16 June 2010. Chad Evans applied to the U.S. Court of Appeals for a Certificate of Appealability of the U.S. District Court's decision. See the MOTION.

20 July 2010. The First Circuit Court of Appeals approved Chad's Certificate of Appealability in part. See the Court's ORDER.

29 July 2010.  Chad Evans, through his attorney, David Rothstein, Deputy Chief Appellate Defender, Appellate Defender Program, filed an APPEAL of the U.S. District Court's Summary Judgement with the First Circuit.

15 November 2010 APPEAL BRIEF for Chad Evans.

14 December 2010 State of New Hampshire BRIEF FOR APPELLEE

6 April 2011 Appeal scheduled for oral argument on this date.

22 July 2011.  The Federal First Circuit Court of Appeals in Boston denied Chad's appeal of the 15 year supplement to his minimum sentence of 28 years. See OPINION

6. New Hampshire vs. Chad Evans - Forfeiture of Chad's

    gun collection.

19 May 2006 Rochester District Court hearing: TRANSCRIPT 10 PAGES

5 February 2007  Chad Evans, Pro Se, Appeal Brief of Forfeiture Order

   by Rochester District Court.  And APPENDIX To Chad Evans Brief

29 March 2007 Appellee Brief by the State of New Hampshire

5 April 2007 Reply Brief by Chad Evans, Pro Se


7. Parental Discipline Law Review article, Statutes and cases

2003.  Whittier Law Journal of Child and Family Advocacy published article, by Patricia Weidler of Maine, "Parental Physical Discipline in Maine and New Hampshire: An Analysis of Two States' Approaches to Protecting Children from Parental Violence"  This article cited these New Hampshire Supreme Court cases relating to the use of force with children by parents and their authorized delegates.

Chapter 627 Criminal Code

   627:6 Physical Force by Persons With Special Responsibilities. –
    I. A parent, guardian or other person responsible for the general care and welfare of a minor is justified in using force against such minor when and to the extent that he reasonably believes it necessary to prevent or punish such minor's misconduct.  [but this justification of force is limited by.....]
    IV. The justification extended in paragraphs I, II, and III does not apply to the malicious or reckless use of force that creates a risk of death, serious bodily injury, or substantial pain.


1989 Petition of Jane Doe

     A DHHS hearing officer had ruled that Jane Doe had committed child abuse by hitting her son as discipline.  There were two relevant incidents. First, in 1985, Jane Doe hit her 21-month old son “ the area of the mouth because, during mealtime, John persisted in throwing food. This punishment cut John's lip, causing it to bleed and swell.”  In the second incident 17 months later, the mother slapped her son "with the back of her hand, hitting him in the temple area. The slap left a bruise on John's temple, which lasted approximately two and one-half days. Jane was wearing a ring at the time, a factor which may have contributed to the bruise." 

     The New Hampshire Supreme Court explicitly referred to NH Law Chapter 627:6 which exempts parents from criminal liability for using reasonable force during the disciplining of their children and reversed the finding of child abuse.

     The case is presented on pages 555-559 in Fundamental Principles of Family Law by Lynn D. Wandle and Laurence C. Nolan, 2006.

1992 In RE: Ethan H.

     The New Hampshire Supreme Court reversed a Superior Court’s finding of child abuse where a mother had “observed her seven-year-old son, Ethan, throwing food at the dinner table. When she commanded Ethan to behave, he allegedly ignored her. In response, she took Ethan to a bedroom and struck his bare buttocks approximately six times with an imitation leather belt.”  The court explicitly cited New Hampshire Revised Statutes Chapter 627:6.

1993 State vs. Daniel Leaf

     The New Hampshire Supreme Court upheld the conviction of Daniel Leaf for second degree assault of his 10-year old stepson for “having caused bodily injury in the form of multiple bruises to his stepson by striking his back, buttocks and thighs with a belt.”  The court concluded, “From the defendant's own admission that he had intended at the outset to strike the child only three times, the jury was warranted in concluding that the defendant himself did not reasonably believe that the force used was necessary. Viewing the evidence in the light most favorable to the State, we conclude that a rational jury could have found beyond a reasonable doubt that the defendant's use of force was excessive, unreasonable, and not justified under the statute.”  The court implied, therefore, that three strikes may have been reasonable and justified by Chapter 627:6 of the New Hampshire Revised Statutes.

1995 NH vs Keith Lowe

     The New Hampshire Supreme Court upheld the conviction of Keith Lowe for the second degree assault of his four-year old daughter, who had bruises on her “legs, arms, back and spine.”  The daughter had told her pediatrician that her father had hit her because she was crying after a nightmare.   The Court was asked to reverse the Superior Court’s ruling because of inadmissible hearsay and failure to grant a motion to dismiss.  There was no reference in the court’s opinion to the reasonable force exception of RSA 627:6.

1997 Seufert vs Seufert

     The New Hampshire Supreme Court reversed a Superior Court’s granting of a domestic violence petition on the grounds of lack of evidence of violence against the spouse.  The lower court had found that the father had struck Mrs. Seufert’s son, but there were no specifics in the opinion, and that striking was irrelevant as it was explicitly excluded from the domestic violence statute. The court noted that violence against one’s children was covered by other statutes, including Chapter 627:6.

1999 In Re: Craig T. and Megan T.

     The mother of Craig T and Megan T was found by a Superior Court to have neglected her children because the children’s father had spanked the three year old son, Craig, and hit him on the head several times. The mother was found neglectful because she did not protect her son.  The incident occurred at a retail store where Craig was touching some expensive items.  The children were place in foster care.  The Supreme Court upheld the finding of parental neglect. There was no reference in the opinion to the reasonable force provision of Chapter 627:6. 

2000 In RE: Samantha L.

     A Superior Court placed nine-year old Samantha in the custody of DCYF upon evidence of many injuries which required several weeks of hospitalization, including two weeks in intensive care.  The mother’s explanations of the injuries as being caused by accidents were not believed by the court. There was no assertion that parental discipline was involved and there was no invoking of the reasonable force provision of Chapter 627:6.

2001 Thomas Ball case (newspaper report)

     According to a Boston Globe article about Thomas Ball’s suicide in June, 2011, he slapped his three-year old daughter three times in 2001 for her refusal to go to bed.  The slapping drew blood.  Criminal charges were brought against him, but a  “Superior Court judge later dismissed the case, saying the slaps were inappropriate but not criminal.”  The judge was likely relying upon Chapter 627:6.

2003 In re: Juvenile

     A Superior Court dismissed a petition for abuse and neglect by a three year old child’s mother and DCYF against the child’s father who allegedly slapped the child in the face, and causing bruising.  The mother appealed to the Supreme Court, and that Court affirmed the Superior Court’s dismissal, as there was insufficient evidence.  There was no assertion in the appeal that parental discipline was involved and there was no invoking of the reasonable force provision of Chapter 627:6.

2003 NH vs Chad Evans

      The New Hamsphire Supreme Court upheld Chad's conviction for murder and the five assault charges for causing bruises to Kassidy by "grabbing and squeezing her face," and the single charge of assaulting Amanda.  There was no challenge on appeal to the assault charges, and thus no reference to the reasonable force provision of Chapter 627:6.

2000 State of Maine vs Lawrence Wilder (Maine Supreme Court)

     Wilder was convicted of three assaults on his nine year old son for holding his shoulders and holding his mouth on two occasions, one of which caused bruises.  The Supreme Court reversed Wilder’s convictions and concluded,  “Maine's present Criminal Code sets a standard, noted in the 1975 Commentary to the Code, that proscribes physical discipline of a child  only for ‘extreme punishment’ or an action which ‘cruelly treats’ a child.  Because the parental control justification was generated by the evidence, the  limited evidence in this record is insufficient for any rational factfinder to find the parental control justification disproven beyond a reasonable doubt.”


8. Reasonable Doubt articles

27 August 2011.  "Reasonable Doubt and the Strauss-Kahn Case"  by Scott Turow, in the New York Times.  He wrote,

  "Prosecutorial intransigence, a galling inability to acknowledge that initial judgments were incorrect, is the hallmark of almost every wrongful conviction case I am familiar with. Mr. Vance is entitled to kudos for not turning a failing case into a travesty.
    And the standard that Mr. Vance and his assistants employed in deciding to dismiss the case is noteworthy and laudable. “If we do not believe her beyond a reasonable doubt,” the prosecution wrote in its motion to dismiss, referring to Ms. Diallo, “we cannot ask a jury to do so.”
    This is not the bar all prosecutors set in deciding whether or not to go forward. Ethical rules prohibit lawyers from calling a witness whose testimony they know to be false; but the rule is not the same when the testimony is possibly true but dubious. Particularly in urban criminal courts, where caseloads tend to be overwhelming and the police sometimes push cases aggressively, prosecutors are often not convinced beyond a reasonable doubt about the truthfulness of particular testimony. Frequently they leave it to jurors to determine the credibility of a particular witness. In trying to talk prosecutors out of weak cases, I have been told more than once, “I wasn’t there, man, and neither were you. Let the 12 of them figure it out.”
    In practice, this means that even defendants who are probably innocent must endure the anguish of trial. I once represented a young man in a gang murder case who had been arrested and indicted along with eight other people, even though his name was never mentioned in the grand jury testimony. Although it seemed clear that the police had mistaken this young man for his brother, both the prosecutors and the judge told me to “put it on,” meaning go to trial; the client sat in court for several days, in jeopardy of a lengthy prison term, before the case against him was finally dismissed.
    Given these realities, the ultimate test of equality in Mr. Vance’s office will be whether his prosecutors universally apply the demanding, but appropriate, standard they used to decide whether to proceed with the Strauss-Kahn prosecution. Let’s hope they do, in fact, require themselves to be convinced — beyond a reasonable doubt — in all of their future cases, a vast majority of which will involve defendants who don’t have the power or eminence of Mr. Strauss-Kahn."