Prosecutorial discretion

By Jay Jamison

Prosecutorial discretion is the latitude allowed to prosecutors who decide whether to bring a criminal case against defendants or to not bring a case. Usually prosecutors will refuse to bring a case because, in their judgement, either the law or the evidence is unlikely to be sufficient to bring about a conviction.

Another option for prosecutors is to bring the evidence before a grand jury, and if they indict the defendant then the prosecutor has reason to continue with the criminal prosecution of the defendant. The grand jury route gives prosecutors political cover, because the decision is seen to be made by the grand jurors, not the prosecutor. It is widely known that, since grand juries only hear the prosecution’s side of the case, the old saying goes that a decent prosecutor can convince a grand jury to indict a ham sandwich. So, what happens when a grand jury actually does indict a defendant and the prosecutor’s office drops all the charges? You get the Jussie Smollett fiasco.

I’d never heard of the TV actor Jussie Smollett, until his name came up in some dust-up in Chicago. Smollett claimed to have been attacked by two men at about 2 a.m. on a freezing Chicago night. He claimed his attackers put a noose around his neck and poured a liquid on him, while yelling that he was in “MAGA country.” I was skeptical of the report when I first heard it. The MAGA taunt, in heavily Democratic Chicago, is the equivalent of the improbable claim that someone had yelled, “This is Cardinals country” outside Wrigley Field. However, the Chicago Police Department took the claim seriously and devoted numerous detectives to the case. In spite of any doubts, the Chicago Police performed their due diligence investigating the claims. After devoting enormous resources to the case running down every lead, a visibly angry Chicago police chief called a news conference and denounced the whole affair as a hoax, and later referred charges against Smollett to the Cook County State’s Attorney’s office, according to Associated Press reports. Cook County State’s Attorney Kim Foxx recused herself from the case. This political hot potato of a case was presented to a grand jury, which indicted Smollett on sixteen felony counts. This case is unusual because the charges were dropped before a single word of sworn testimony was given at trial. If there was insufficient evidence against Smollett, why did Foxx’s office present the case to the grand jury?

Most cases of prosecutorial misconduct about which I know, involve bringing charges where the prosecution knows the facts don’t fit the charges or they withheld exculpatory evidence. The rape charges against members of the Duke Lacrosse team, brought by local state’s attorney Mike Nifong in Durham County, North Carolina in 2006, is an example of such a case. In the end, after their reputations were ruined and enormous amounts of money were spent on their defense, the charges were dropped, and the North Carolina Attorney General declared the accused men innocent of the charges. Note that. I don’t recall another criminal case where the state’s chief law enforcement officer declared the accused innocent, instead of the usual statement of deficiencies to obtain a conviction. These two cases, and possibly many more, point to a problem with prosecutorial discretion under the current system — a problem which arises when persons in charge of criminal prosecutions must balance the legal interests of the state against their own interests as politicians seeking votes.

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