NCJ Number
47631
Date Published
1976
Length
11 pages
Annotation
EXAMPLES OF PROSECUTORIAL ABUSES OF POWER, STEMMING FROM AN OCCUPATIONAL ARROGANCE AND EMPHASIS ON ACHIEVING CONVICTIONS RATHER THAN JUSTICE, ARE DISCUSSED.
Abstract
IT IS SUGGESTED THAT MANY PROSECUTING OFFICIALS APPEAR ARROGANT, OVERZEALOUS, AGGRESSIVE, AND UNSCRUPULOUS IN THE PERFORMANCE OF THEIR DUTIES. PROSECUTORIAL ARROGANCE IS UNDERSTANDABLE IN ITS ORIGINS: THE PROSECUTOR HAS AT HIS OR HER DISPOSAL THE VAST FINANCIAL AND MANPOWER RESOURCES OF THE STATE. WITH GREATER EXPERIENCE AND RESOURCES THAN OPPONENTS, THE PROSECUTOR IS LIKELY TO BE ON FAMILIAR TERMS WITH COURTHOUSE PERSONNEL. THE PROSECUTION LARGELY CONTROLS THE COURT CALENDAR, AND ABOVE ALL HAS THE AUTHORITY TO DECIDE WHEN TO PROSECUTE. ON THE PERSONAL LEVEL, THE DUTY TO DO JUSTICE SURVIVES THE CORRUPTING EFFECT OF SUCH POWER WITH DIFFICULTY. ABUSES OF PROSECUTORIAL POWER CAN BE SEEN IN THE CASES OF DANIEL ELLSBURG, THE BERRIGANS, AND IN HARRISBURG WHERE THE PROSECUTOR SUPPRESSED EVIDENCE FAVORABLE TO THE ACCUSED IN VIOLATION OF THE BRADY RULE. ANOTHER ABUSE, THE INTERCEPTION OF COMMUNICATIONS IS ILLUSTRATED IN THE UNITED STATES VERSUS UNITED STATES DISTRICT COURT, IN WHICH THE PLAINTIFFS SUBMITTED A LIST OF 16 IMPORTANT CRIMINAL PROSECUTIONS IN WHICH THERE HAD BEEN EXTENSIVE WIRETAPPING. ALL OF THE WIRETAPS HAD BEEN ILLEGAL, YET ALL HAD BEEN APPROVED BY GOVERNMENT LAWYERS. ANOTHER AREA WHERE THE PROSECUTOR'S DESIRE FOR CONVICTION MAY CONFLICT WITH ELEMENTAL FAIRNESS IS THE WIDESPREAD USE OF INFORMERS. TO JUSTIFY THEIR CONTINUED EMPLOYMENT, INFORMERS MUST PROVIDE EVIDENCE, AND OFTEN THAT EVIDENCE CAN BE MOST EASILY PRODUCED BY PERJURY OR BY PROVOCATION OF THE CRIME. THE SMITH ACT PROSECUTIONS OF THE 1940'S AND 1950'S, FOR EXAMPLE, WERE BASED ALMOST EXCLUSIVELY ON INFORMER TESTIMONY, MOST OF WHICH WAS LATER FOUND TO BE PERJURIOUS. AN ENCOURAGING TREND HAS BEEN THE RELUCTANCE OF JURIES TO CONVICT ON THE BASIS OF INFORMER TESTIMONY. WHILE JURIES MAY REFUSE TO CONVICT, OVERZEALOUS GOVERNMENT PROSECUTORS CAN STILL MISUSE THE INDICTMENT AND GRAND JURY PROCESS, AS IN THE 'CHICAGO SEVEN' AND THE SPOCK CASES. WIDESPREAD USE OF SUCH CONSPIRACY INDICTMENTS PLACES AN ENORMOUS BURDEN ON DEFENDANTS WHO HAVE DONE LITTLE BEYOND ENGAGING IN THEIR PROTECTED RIGHTS, AND POSES A SERIOUS THREAT TO POLITICAL ACTIVITY. PROSECUTORIAL ABUSE CAN ALSO RESULT FROM INACTION, SUCH AS THE FAILURE TO PROSECUTE PRISON GUARDS AT ATTICA PRISON FOR THE MURDER OF INMATES. PROSECUTION OF POLICE WHO BREAK THE LAW IS ALMOST UNKNOWN. WHILE MISTRIALS, AS IN ELLSBURG'S CASE, OR ACQUITTALS AND HUNG JURIES IN OTHER PROMINENT CASES INDICATE THAT OPPORTUNITIES FOR PROVIDING JUSTICE DO EXIST, THESE ARE BUT A FEW OF THE MANY CASES WHERE FAIRNESS AND JUSTICE ARE SACRIFICED BY OVERENERGETIC PROSECUTORS. NOTES ARE PROVIDED. (JAP)