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Another Dose of Prosecutorial Discretion

letsgetitdone's picture

Here's a footnote to my recent post on prosecutorial discretion. Of course, the Grand Jury verdict not to indict Darren Wilson in Ferguson was a product of prosecutor McCulloch's decision to perform a non-directive prosecution accompanied by a "jury dump" without benefit of clear guidelines and instructions. This had the predictable result that the jury would carry on its own trial, not only absent vigorous prosecution, but by all accounts a prosecution that played more of the role of a defense attorney then a representative of law enforcement prosecuting a crime.

The way McCulloch proceeded in the case is almost never done by prosecutors and it illustrated perfectly the contrast between prosecution for me, and discretion for thee, the very mark of a legal system that is broken, failing to produce equal justice for all, under the law. This is perfectly acceptable to many Americans when it is not their ox that is being gored. So, we recently heard thunderous recriminations from the right over the President's executive orders on immigration, but perpetual loud silence about the IRS's failure to enforce the law prohibiting tax exemptions for claimed 501 (c) (4) organizations that are not exclusively engaged in social welfare activities. Now, we're seeing rage against a prosecutor who obviously fixed an unjust outcome in a prosecution he did not want to engage is at all. The rage is justified, of course, and there are many lessons we can draw from Ferguson, but surely one of them is that we need to limit prosecutorial discretion. It gives prosecutors far too much power to 'fix' justice, which in various ways they do all the time.

(Cross-posted from New Economic Perspectives.)

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nomad2's picture
Submitted by nomad2 on

Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years.

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

http://thinkprogress.org/justice/2014/11/26/3597322/justice-scalia-expla...

nomad2's picture
Submitted by nomad2 on

Thanks.

Now this is indeed a surprise:

Shortly after the decision Monday night, outgoing Attorney General Eric Holder wrote:

While the grand jury proceeding in St. Louis County has concluded, the Justice Department's investigation into the shooting of Michael Brown remains ongoing. Though we have shared information with local prosecutors during the course of our investigation, the federal inquiry has been independent of the local one from the start, and remains so now. Even at this mature stage of the investigation, we have avoided prejudging any of the evidence.
http://www.huffingtonpost.com/brian-levin-jd/self-defense-claim-remain_b...

We'll see.

TheMomCat's picture
Submitted by TheMomCat on

The jury was tainted from the start. An assistant prosecutor handed out copies of a law that was declared unconstitutional in 1985 that tainted the deliberations.

Tennessee v. Garner made the statute Alizadeh distributed to the Grand Jury unconstitutional, but that didn't stop her from distributing it to grand jurors at the outset in order to set their minds in a place where Darren Wilson was justified in what he did.

Then, at the very end of the proceedings on November 21st, Alizadeh "corrected" the record. Sort of.

Proprietorial misconduct? Or aiding and abetting a homicide? Your choices