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December 8, 2014

"Are prosecutors above the law?"

The title of this post is the title of this lengthy new commentary at Daily Kos.  It starts and ends this way: 

There is something terribly wrong with a justice system that allows an inordinate amount of power to reside in the hands of one office that not only has no real accountability or oversight, but is insulated from the consequences of its actions by court-granted immunity. And no, I am not talking about Supreme Court justices, but about prosecuting attorneys.

The prosecuting attorney — whether local, state, or federal — has an incredible amount of authority and discretion in how to exercise that authority.  The prosecuting attorney decides how many, and what kind of charges are brought in criminal prosecutions. The prosecuting attorney has the ability to directly charge a crime, or to use a grand jury for more serious crimes, to indict a defendant.  The prosecuting attorney has the authority to offer plea bargains.

And while there should be some type of accountability other than election, and while the fiction exists that prosecuting attorneys could be disbarred, in reality, they face little punishment for abusing their discretion or authority....

Prosecutors do need some level of immunity in order to properly perform their duties. And they require prosecutorial discretion in order to keep the wheels of justice turning. We have seen how efforts to restrict judicial discretion resulted in mandatory minimum sentences, removing a judge's discretion in sentencing entirely.  (Now it is the prosecutor who determines the sentence by exercising his discretion in deciding what charges an offender will face.)  But there does need to be some limit, some oversight to a prosecutor's office.

If grand juries only exist to give the result the prosecutor desires, what is the point of using them?  Initially, they were to allow citizens some input into the system, but as that system has become more complicated and more laws have been enacted to criminalize behavior, most citizens do not have the knowledge necessary to fulfill that role.  Since all of their actions are taken in secret, and since they are never allowed to reveal what happened within the jury room, it is impossible to determine if they are working the way they were intended.

The most powerful office in the justice system, whose decisions carry the greatest impact and consequence, is still occupied by human beings, subject to all of the normal human failings.  In order to ensure that the power is used properly, sunshine, oversight, and accountability must become part of the system.

December 8, 2014 at 09:17 AM | Permalink


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no the constitution says that. After all that's part of the reason the 2nd is there. Control of the gov if they go too far.

Posted by: rodsmith | Dec 8, 2014 6:38:35 PM

Prosecutors are at will employees, not civil service. They are invulnerable to tort liability to the owners of the law, the public, for over reaching or for failure to prosecute. The Supreme Court affirmed this immunity after intentional tors were committed. They want it to be absolute. On the other hand, they overly vulnerable to the political hacks running their offices, and controlling their decisions. The immunity applies in the case of intentional torts, such as hiding exculpatory evidence on purpose. It flies in the face of numerous duties enumerated in statutes covering the Rules of Conduct, the Rules of Evidence, the Rules of Criminal Procedure, and many common laws . Some many torts by prosecutors would be deemed per se ones. Many would also be subject to aggregate claims and to exemplary damages. To deter.

Question, why does the defense bar not go after these tortfeasors? One does not bite the hand that feeds one. The defense owes its job to the prosecutor, and not to the client.

Where can a prosecutor be reliably and severely sanctioned, then? There is only one place. Inside the tribunal. The judge may destroy the prosecutor with persona sanctions, fines, and even prison time. You will never, get see the defense seek these measures from a judge. Deter the prosecutor, lose your defense job.

Posted by: Supremacy Claus | Dec 8, 2014 11:34:30 PM

In the case of Officer Darren Wilson, the prosecutor presented five indictments, covering all possible criminal charges related to the death of Michael Brown. They were refused by the grand jurors. So, tell me, academia types, what went wrong? How did the prosecutor manipulate the outcome?

Posted by: Diogenes | Dec 9, 2014 7:45:43 AM

No, Diogenes, the prosecutor presented boxes of evidence and listed a number of possible charges for jurors to consider, but he failed to ask the grand jury to indict Wilson on any of the charges.

Prosecutors almost always get what they ask for from grand juries. The prosecutor in the Ferguson case asked for nothing...and that's what he (and folks who would like to have seen the matter litigated openly in court) got. Nothing.

Posted by: John K | Dec 9, 2014 6:09:17 PM

sorry Diogenes the DA made his opinion known from the beginning. having a months long mini-trial via the grand jury was criminal. ANYONE else would have been arrested and charged by nightfall. Then it would be sorted out at trial where BOTH sides get to have a vote and present evidence. Sorry the real prosecution ie the victim's family had no voice in this kangaroo court.

I say this even as I also believe that in this case there should have been no punishment. try dragging me out of my car or assault me in the process and i'd kill your ass too.

Posted by: rodsmith | Dec 10, 2014 5:37:02 PM

rodsmith, perhaps knocking the person unconscious is enough? maybe when you feel generous

Posted by: Joe | Dec 13, 2014 9:19:43 PM

Grand jurors aren't dumb and they take their jobs very seriously. If they wanted to indict Wilson, they would have. Why do people insist on infantilizing the Grand Jurors? They knew how important their job was.

Posted by: Domino | Dec 14, 2014 3:42:23 PM

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