Friday, August 3, 2007

Role of the Prosecutor

I read an article in a recent Time Magazine (August 6, 2007) regarding prosecutorial misconduct. Apparently a group is forming to attempt to reel in some of the more egregious abuses of the prosecutorial power. And example was given in the article that I found interesting, because I had also recently seen an example.

In the article, they described a situation wherein the prosecutor kept an individual, who had been charged with rape, in jail for nine months. Under the law of that state, that was the period that a prosecutor had to obtain an indictment. In that case, the prosecutor could not obtain an indictment due to some evidentiary problems (basically, the article says the guy didn't do it).

The prosecutor basically became judge, jury and executioner, stating that he would at least keep the guy off the streets for nine months.

Wow, what an abuse of power. It simply isn't the prosecutor's role to make decisions like that. The role of the prosecutor, at least pre-trial, should be to make an evaluation of the evidence to see if the state has a case. I won't go so far as to say that the prosecutor should resolve all doubt in favor of the defendant, but he or she should, in my opinion, at least make certain that an innocent person isn't being charged. Proof of actual innocence should require the prosecutor to release a defendant from confinement.

I actually saw a similar situation in an Ohio county (in which I currently reside). I had a reason to go to the courthouse with a local attorney when he encountered the prosecutor on a criminal matter that he was involved with. A deal had been cut for no jail time, but the prosecutor was resisting bringing the matter to the court for sentencing, which would result in the defendant's release. The prosecutor stated his position that he wanted to keep the defendant in jail for as long as possible to punish her for what she had done.

Pardon me, but I thought the judge made those decisions. Having decided that the defendant deserved probation for the crime, as the prosecutor did when he agreed to the deal, the matter of whether or not that was acceptable should have been left to the judge. The prosecutor, in my opinion, abused the power of his office by slowing the defendant's release.

As we left the courthouse, I told the attorney of my opinion and also that he should consider making a motion to set the sentencing. His response was that if he did that, the prosecutor wouldn't deal with him anymore. I also find that to be repugnant and a violation of the defense attorney's duty to represent the best interest of his client.

So, the question is - what kind of system has evolved here? It seems a bit out of control. It seems like the rule is now guilty until proved innocent. Occasionally, as happened in the Duke Lacrosse case, prosecutors get punished for stepping over the line, but real reform won't come until we, as either a society or we, lawyers, as a profession, get the will to force changes.

I am now stepping off the soapbox.

This is of interest to me since I recently placed my name in the pool for accepting some appointed criminal work in some Tennessee counties. I have, in the past, done quite a bit of criminal trial work and want to get back into it. My "second chair" activities outside the state of Tennessee don't generally involve criminal work.


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