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Prosecutors As Judges

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Prosecutors As Judges Prosecutors as Judges Erik Luna* Marianne Wade** Table of Contents I. Introduction ................................................................................ 1414 II. Prosecutorial Adjudication in Europe ........................................ 1429 A. American Scholarship on European Prosecutors ................ 1431 B. European Scholarship on European Prosecutors ................. 1437 1. The Reality of Prosecution in Europe ........................... 1441 a. Simple Drop ........................................................... 1442 b. Public Interest Drop ................................................ 1443 c. Conditional Disposal .............................................. 1445 d. Penal Order ............................................................. 1449 e. Negotiated Case Settlements .................................. 1451 2. Analysis of European Prosecution ................................ 1453 III. Some Context ............................................................................. 1464 A. The Context of Prosecution in Europe ................................ 1468 1. Prosecutorial Role ......................................................... 1468 2. Education, Training, and Culture .................................. 1471 3. Hierarchy and Guidelines. ............................................ 1474 4. The Full Ambit of the Prosecutorial Function .............. 1481 5. Prosecutorial Adjudication ........................................... 1486 B. A Comparative Example ..................................................... 1496 IV. A Thematic Problem and the Prospects for Reform ................... 1501 A. American Adversarialism .................................................... 1503 B. Possible Solutions ............................................................... 1510 * Professor of Law and Law Alumni Faculty Fellow, Washington and Lee University School of Law. ** Senior Researcher, Max Plank Institute for Foreign and International Criminal Law, Freiburg, Germany. We are grateful to Antoni Bojańczyk, Amos Guiora, Máximo Langer, Russell Miller, and George Thomas for their comments and suggestions. Thanks also to Katherine Brings for excellent research assistance, and to the editors of the Washington & Lee Law Review for their assistance in the prosecution workshop and their efforts on this symposium. 1413 1414 67 WASH. & LEE L. REV. 1413 (2010) V. Caveats and Conclusion ............................................................. 1526 Appendix 1. Number of Cases by Case-Ending Decision ...................... 1532 Appendix 2. Percentage of Cases by Disposal Category ....................... 1532 I. Introduction As demonstrated by some recent high-profile cases and suggested by a seemingly endless litany of misconduct,1 American prosecutors exercise 1. See, e.g., KATHLEEN M. RIDOLFI & MAURICE POSSLEY, PREVENTABLE ERROR: A REPORT ON PROSECUTORIAL MISCONDUCT IN CALIFORNIA, 1997–2009, 18–41 (2010), available at http://law.scu.edu/ncip/file/ProsecutorialMisconduct_ BookEntire_online%20 version.pdf (studying the extent to which prosecutorial misconduct was a factor in the conviction of innocent people in California); STUART TAYLOR & K.C. JOHNSON, UNTIL PROVEN INNOCENT: POLITICAL CORRECTNESS AND THE SHAMEFUL INJUSTICES OF THE DUKE LACROSSE RAPE CASE 84–89 (2007) (discussing the misconduct of prosecutor Michael Nifong during the Duke lacrosse rape case, including never interviewing the alleged victim); EMILY M. WEST, COURT FINDINGS OF PROSECUTORIAL MISCONDUCT CLAIMS IN POST‐CONVICTION APPEALS AND CIVIL SUITS AMONG THE FIRST 255 DNA EXONERATION CASES, INNOCENCE PROJECT (2010), available at http://www.innocenceproject. org/docs/Innocence_Project_Pros_Misconduct.pdf (using DNA exoneration cases to offer proof of prosecutorial misconduct); Jeffrey L. Kirchmeler, Stephen R. Greenwald, Harold Reynolds & Jonathan Sussman, Vigilante Justice: Prosecutor Misconduct in Capital Cases, 55 WAYNE L. REV. 1327, 1381–85 (2009) (examining categories of prosecutor misconduct that occur in capital cases and discussing suggestions to help prevent and remedy such misconduct); Tony Mauro, Justices Appear Ready to Hold New Orleans Prosecutors Liable for Misconduct, NAT’L L.J., Oct. 7, 2010 (discussing the Supreme Court deciding whether to allow "a New Orleans man to win compensation for prosecutorial misconduct that put him behind bars for more than two decades for a murder he did not commit"); DA Kratz Quits After ‘Sexting’ Revelations, WISC. STATE J., Oct. 4, 2010, available at http://host.madison.com/wsj/news/local/govt-and-politics/article_43ebebe8-cfd7-11df-b5bb- 001cc4c002e0.html (noting misconduct by prosecutor who, inter alia, propositioned a 26- year-old domestic abuse victim while prosecuting her ex-boyfriend); Darryl Fears, Black Teens’ Case Intensifies Racial Issues, WASH. POST, Aug. 4, 2007, at A3 (detailing racially tinged prosecution); Brad Heath & Kevin McCoy, Prosecutors’ Conduct Can Tip the Scales, USA TODAY, Sept. 23, 2010, at 1A (describing prosecutorial abuses including federal prosecutors who hid facts and covered up evidence); Peter J. Henning, Another Claim of Prosecutorial Misconduct, DealBook, N.Y. TIMES, Jan. 11, 2010, http://dealbook.blogs. nytimes.com/2010/01/11/another-claim-of-prosecutorial-misconduct/ (last visited Nov. 17, 2010) (explaining how the defense attorney in the case against the former chief executive of KB Homes, Bruce Karatz, was filing a motion to dismiss the case claiming that the U.S. Attorney threatened a witness) (on file with the Washington and Lee Law Review); Eric Lichtblau, Criticism of Ex-Official in Hiring at Justice Dept., N.Y. TIMES, Jan. 14, 2009, at A16 (commenting on a former Justice Department official who allegedly made hiring decisions based on political affiliations); Adam Liptak, Justices Will Decide Whether Ashcroft May Be Sued in Detention Case, N.Y. TIMES, Oct. 19, 2010, at A17 (discussing a Supreme Court case where the defendant alleges that former Attorney General John Ashcroft misused "material witness" detention law); Steve Mills, Prosecutor DNA at Odds, CHI. PROSECUTORS AS JUDGES 1415 almost limitless discretion in a series of decisions affecting individuals embroiled in the criminal justice system. They decide whether to accept or decline a case, and on occasion, whether an individual should be arrested in the first place; they select what crimes should be charged and the number of counts; they choose whether to engage in plea negotiations and the terms of an acceptable agreement; they determine all aspects of pretrial and trial strategy; and in many cases, they essentially decide the punishment that will be imposed upon conviction. These and other discretionary judgments are often made without meaningful internal and external review or any effective opposition. In many (if not most) American jurisdictions, the prosecutor is the criminal justice system. For all intents and purposes, he makes the law, enforces it against particular individuals, and adjudicates their guilt and resulting sentences. Consider the case of Weldon Angelos, who at the age of twenty-three was arrested for dealing marijuana and possessing firearms in his hometown of Salt Lake City, Utah.2 A first-time offender with no adult criminal record, Angelos started selling relatively small amounts of marijuana to help pay the bills after the birth of his second son. The fact- pattern that led to his conviction and punishment was as follows: [O]n two occasions while selling [eight ounces] of marijuana, Mr. Angelos possessed a handgun under his clothing, but he never brandished or used the handgun. The third relevant crime occurred TRIB., Dec. 15, 2008, at C4 (detailing three cases in which one prosecutor continued to pursue suspects excluded by DNA evidence); Nedtra Pickler, Justice Dept. Lawyers in Contempt for Withholding Stevens Documents, WASH. POST, Feb. 14, 2009, at A7 (reporting on federal prosecutors who were held in contempt of court for failing to produce documents relating to the Senator Ted Stevens investigation); Henry R. Chalmers, Prosecutorial Misconduct Leads to Dismissal of Broadcom Criminal Charges, ABANET (Feb. 11, 2010), http://www.abanet.org/litigation/litigationnews/top_stories/ ruehle-broadcom-prosecutor- misconduct.html (last visited Nov. 17, 2010) (describing a courts finding of prosecutorial misconduct where the prosecutors violated the defendants’ Sixth Amendment rights by intimidating and improperly influencing key witnesses) (on file with the Washington and Lee Law Review); Mary Jacoby, Judge Cites Prosecutorial Misconduct in Blackwater Dismissal, MAIN JUSTICE, Jan. 1, 2010, http://www.mainjustice.com/2010/01/01/ judge-cites-prosecutorial- misconduct-in-black water-dismissal/ (last visited Nov. 17, 2010) (describing the dismissal of an indictment against five Blackwater Worldwide security guards for a shooting incident in Iraq due to prosecutors’ unconstitutional use of tainted, compelled testimony) (on file with the Washington and Lee Law Reivew). See generally AMNESTY INTERNATIONAL, USA: MODEL CRIMINAL JUSTICE? DEATH BY PROSECUTORIAL MISCONDUCT AND A "STACKED" JURY (May 11, 2010), available at www.amnestyusa.org/abolish/i/ ClemonsReport.pdf (describing the prosecutorial misconduct in the case of Reginald Clemons). 2. As a matter of disclosure, one of the present authors (Luna) represented Angelos before the U.S. Court of Appeals for the Tenth Circuit and in his petition for a writ of certiorari before the U.S. Supreme Court. 1416 67 WASH. & LEE L. REV.
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