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The Unchecked Charging Power of the Prosecutor

The power prosecutors have to charge people with crimes is often overlooked.
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When Florida special prosecutor Angela Corey charged George Zimmerman with second-degree murder this week in the February shooting of 17-year-old Trayvon Martin in Sanford, the charge won praise from Martin's supporters and more skeptical reactions from some legal commentators.

The power prosecutors have to charge people with crimes is often overlooked. While probable cause is the minimum standard police officers need to make an arrest and the minimum standard to convict is beyond a reasonable doubt, the question is where the power to charge should be between those two extremes.

In the 22 states that require a grand jury indictment before charging, the grand jury standard is a preponderance of the evidence, although grand juries are sometimes notorious for rubber-stamping a prosecutor's wishes.

But without a grand jury, a prosecutor's charging power is entirely discretionary.

Once charged, a suspect often needs to hire expensive legal representation or, if he can't afford it (and there aren't many people who can pay for representation on a murder charge), request a public defender. It likely means at least temporary incarceration, the posting of bond, and a stigma more damaging than an arrest, but less so than a conviction.

A judge may occasionally dismiss charges due to lack of evidence, but generally speaking, the decision to charge is the prosecutor's. And while police officers can be sued for a wrongful arrest, prosecutors are protected by absolute immunity, meaning that as long as they're performing a prosecutor's duties, they can't be sued.

In a 1940 speech to a gathering of U.S. attorneys, then U.S. Attorney General and future Supreme Court Justice Robert H. Jackson called the power to charge "the most dangerous power of the prosecutor," warning that prosecutors have "more control over life, liberty and reputation than any other person in America." Charging power is an "immense power to strike at citizens, not with mere individual strength, but with all the force of government itself," he said.

In the 1935 case Berger v. United States, U.S. Supreme Court Justice George Sutherland wrote that a prosecutor is "representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."

But then-U.S. Supreme Court Justice Warren Burger also wrote of prosecutors in a 1967 decision, "Few subjects are less adapted to judicial review."

Currently, the accepted standard to bring a charge against anyone is probable cause, the same minimal standard needed to make an arrest. That standard remains the same from the time the charge is brought until the time the judge turns the case over to the jury to reach a verdict.

The American Bar Association's Standards for Criminal Justice advises that a prosecutor shouldn't prosecute a case in which he doubts the defendant's guilt, but if he believes there's enough evidence to establish probable cause, the ABA guidelines state that it's ethical to pursue a conviction. There's also no requirement that a prosecutor pursue evidence that may cast doubt on the suspect's guilt. That means it is ethical for a prosecutor, according to the ABA, to ask a jury to pronounce a defendant guilty with a degree of certainty that the prosecutor may not possess himself.

Bennett Gershman, a former prosecutor in the Manhattan District Attorney's Office and currently a law professor at Pace University, has written a number of articles about charging power. In an article for the May 2011 edition of the Hastings Law Journal, Gershman argues that prosecutors should meet a higher standard before bringing serious charges.

"The prosecutor should be the gatekeeper," Gershman says. "He should see his job as administering justice, not getting convictions. That may mean you don't let juries hear cases if you aren't personally convinced of guilt. Unfortunately, we currently have a very low threshold for charging. It's just too low."

Gershman says a prosecutor should only bring charges when he is morally convinced and morally confident of the defendant's guilt. He knows his proposed standard could not be reviewed by bar associations or judges, but says it's more about changing the mindset of prosecutors and the way they approach their jobs.

A number of studies also show that when juries come into the courtroom, they believe prosecutors believe in the defendant's guilt, or they wouldn't be bringing charges, says Gershman.

"Juries also want to believe eyewitness testimony and forensics, even when there's good reason for them to be skeptical. And then you have the problem of overworked or incompetent defense attorneys. The belief that we can throw all sorts of charges into this, and the system will sort all of this out so that only the guilty will get convicted just isn't plausible. The prosecutor has to be a gatekeeper."

The principle applies not only to the decision to bring charges, but to what evidence a prosecutor introduces at trial to support those charges. A few years ago, I wrote an article about the federal drug conspiracy prosecution of the Colomb family in Church Point, La. Federal prosecutors brought forth a parade of jailhouse snitches during the Colomb trial, all of whom testified that they sold the family vast quantities of drugs. Add up the quantity of drugs the witnesses claimed to have sold the Colombs and the working-class family living in a modest home in a small town would have been one of the biggest drug cartels in the south. No one believed the informants were testifying truthfully.

But when asked during a sidebar whether he really believed what his witnesses were saying under oath, the assistant U.S. attorney said that his faith in the witnesses wasn't as important as whether the jury found them convincing. As a reporter, I found it surprising, and a little shocking, that a prosecutor would admit to putting on evidence he wasn't certain was truthful or accurate. But as I queried experts, I was more surprised at how few legal ethics experts would definitively say that the prosecutor in the Colomb case was wrong.

Gershman says prosecutors have an obligation not only to only present evidence they believe to be true, but he isn't surprised that it was hard to find people who agree with him. "I think they also have a responsibility to investigate, to perform due dilligence to ensure the evidence they present is truthful."

Ironically, there's a strong disincentive for prosecutors to do that. While the Supreme Court has wrapped prosecutors in absolute immunity in their role as prosecutors, it has slightly rolled back that immunity when the prosecutor investigates, which is more a law enforcement officer's territory. A prosecutor who investigates evidence could be given the lower tier of qualified immunity, which makes it possible for them to be sued, although it's still fairly difficult.

One possible middle-ground solution might be for prosecutors to bring initial charges based only on probable cause, but to encourage a more stringent standard to bring a case to trial. That would allow for an indictment and incarceration, or posting of bond to keep a suspect around while police and prosecutors attempt to collect more evidence.

But in the end, these are merely suggestions. None has much more weight than that. Prosecutors are rarely disciplined even for serious misconduct. It seems unlikely that courts or bar associations will begin disciplining them for bringing charges that don't meet a higher threshold of evidence.

Ultimately, the prosecutor is a political position. Because no prosecutor has the resources to charge and try every crime, discretion over when to bring charges and for which crimes is a matter of policy. Popular perceptions of crime and punishment issues are shifting, but the public still sees a prosecutor's job primarily as the official who puts people in jail, not the faithful minister of justice that Gershman envisions.

Unless the voting public demands a higher standard for bringing serious charges, there's no incentive for prosecutors to impose such a standard upon themselves.

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