2011/04/27

Prosecutorial misconduct

This is to comment on the article, "Head in the sand over prosecutorial misconduct", by Erwin Chemerinsky, in The National Law Journal, April 25, 2011.

The reform needed is suggested by reviewing the history of how we got to this point.

The abusable power of public prosecutors became entrenched when they were made elected officials in the late 19th century, before which criminal prosecutions were largely done by private parties. At that time it was thought the voters would be as concerned for protecting the rights of the accused as they were to "hang 'em all and let God sort 'em out." Alas, the voters came to see the threat as something that only menaced "those" people, not people like them. It has only been recently when "people like us" are threatened by the same abuse that the issue is coming into public discussion.

The obvious solution to to stop electing prosecutors. Have them selected at random, by sortition, from a large pool of qualified candidates, case by case. There would be a budget, and there could be professional staffs, but the first chair would be filled by someone without a career path in the seat.

A companion reform would be open (an increased number of) grand juries to direct citizen complaints, with no undue presence or  influence by professionals, and with the grand jury appointing the prosecutor by handing him an indictment.

We also need to educate the public from whom juries are drawn to be skeptical about everything they hear in the courtroom, whether from the attorneys, the witnesses, or the judge, and to summarily acquit if they sense any of the legal arguments in the case have been withheld from them, except perhaps arguments on motions in limine that cannot be made without disclosing evidence properly excluded. However, there should never be any motion in limine granted to a prosecutor in a criminal case. Only to a defendant.

Finally, any individual needs to be able to bring a complaint about a public official to a grand jury, to decide whether the official was acting within his or her jurisdiction, and if not, and if the evidence is sufficient, to conduct a civil or criminal prosecution against the official, thus stripping him of his official immunity.

See Trial Jury Reform.

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