The official who holds the most power in the criminal justice system may not be the judge or the jury, but the prosecuting attorney who represents the state, charges defendants and negotiates pleas.

According to Edward Brumby, staff attorney under Judge Lawton Stephens and former prosecutor in District Attorney Ken Mauldin’s office:

The general public has absolutely no conception of how much power prosecutors have,” said Brumby.

 Why It’s Newsworthy: Prosecuting attorneys often control the outcome of a case, and there is little recourse for their decisions and almost no consequences in cases of prosecutorial misconduct. 

 

One of the most significant decisions a prosecutor makes is when to move forward on a case. The defendant could end up in prison or walk away free depending on the prosecutor’s judgement.

Brian Patterson, chief assistant district attorney for Athens-Clarke and Oconee counties, said that prosecutors only take a case if there is evidence that a crime was committed and that the defendant is responsible.

No one can force a prosecutor to proceed with a case, and they can dismiss a case even if there is evidence to prove it beyond a reasonable doubt, according to a journal article by Angela Davis, an expert in prosecutorial power at American University’s Washington College of Law.

Checks of Power

There are systems in place that curb the power of prosecutors, but these checks may not effectively limit their scope.

The district attorney is locally elected by their respective counties. However, over 80 percent of incumbent DAs run unopposed, according to the Deadman School of Law at Southern Methodist University. The assistant prosecutors in the DA’s office are not elected.

“Having it be an elected process, it’s not ideal,” said Alan Cook, prosecutorial justice program director at the University of Georgia and former district attorney for Walton and Newton counties.

What are we going to do instead? If it’s an appointed system, you can’t take the politics out of it,” Cook said.

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In the small number of cases that proceed to court, the judge and jury can reign in their power.

“We can’t prosecute most felonies without the grand jury’s agreement,” Cook said.

Grand juries determine if the prosecution has enough evidence to proceed to trial.

Prosecutors in the United States have absolute immunity, which protects them from lawsuits and criminal prosecution as long as they are acting within their duties. Judges, lawmakers and other officials also have this insulation.

“We don’t want to discourage prosecutors from being courageous,” said Cook. “We don’t want to deter the prosecutor from prosecuting it for fear of being sued.”

This allows attorneys to take challenging cases against government officials among others, Cook explained.

However, it also means that the public cannot sue prosecutors when they engage in prosecutorial misconduct, which is the act of breaking the law, court rules or ethics of law practice.

Consequences of Misconduct

Prosecutorial misconduct refers to negligence, Cook said. The prosecutor makes a mistake but did not intend to do harm.

“The opportunity for wrongful conviction, I’m not saying it’s not there because it happens. It’s not as prevalent as you would be led to believe.” Cook said. “I think prosecutors get a bad rap.”

The most common type of misconduct is when prosecutors withhold evidence that could help the defense exonerate the defendant, according to Cook. These are called Brady violations for the supreme court case Brady v. Maryland.

That’s where the critics of prosecutors have a legitimate argument. Usually, there’s no consequences,” Cook said.

“They should probably be required to go through retraining on their responsibilities to disclose Brady material, and if it were to happen more than once, at least a suspension if not disbarment,” he said.

Courts and disciplinary committees frequently do not acknowledge willful misconduct or hold prosecutors accountable when serious offenses are uncovered, according to the Washburn Law Journal. This can embolden prosecutors to cut corners or purposefully withhold Brady material.

Some states have recently proposed creating a prosecutorial misconduct commission, which would investigate allegations or a prosecutor’s fitness and qualifications for office.

New York Governor Andrew Cuomo signed a bill into law on August 20, 2018, which would create a commission, but it was met with a lawsuit by district attorneys in the state that claimed that law was unconstitutional.

Plea Negotiation, Sentencing and Jurisdiction

A prosecutor’s influence is often felt in the plea negotiation process where they will recommend lesser punishments in exchange for a defendant’s guilty plea.

“People tend to believe the judges sentence people,” Brumby said. “The reality is pleas are presented to judges. Very rarely does the judge get to decide on the punishment.”

Judges must agree to plea deals and can reject them, but this is not common, according to Brumby.

Brumby explained that a defendant’s fate depends on the judicial circuit and even prosecutors in the same office.

“A prosecutor can look at a case and say, ‘I’m not going to prosecute this person.’ They can look at the same case and say, ‘I am going to prosecute the case and take it to trial.’ They could offer probation in that same case, or they could demand years in prison in that same case. And if you’re accused of a crime, whether you have an offer that might be five years in prison or community sentence, it’s totally dependent on which prosecutor got assigned the case. There’s not any sort of standard,” Brumby said.

Some district attorneys set a standard that the assistant prosecutors are required to follow. Cook had clear expectations his assistant prosecutors.

“When I was district attorney, I created that book which set policy for my office,” he said. “So there was uniformity.”

Cook said that local jurisdiction can serve a community in ways that a statewide or national standard cannot.

“Local decision making is probably best. It individualizes it rather than everybody get the same. But within a given county, there should be uniformity,” he said.

In Cook’s jurisdiction, for example, the standard plea bargain for cocaine sale was 15 years of probation and two years in prison. The harsh sentence would shock Atlanta prosecutors.

“Their mouth would drop open. They’d say, ‘What do you mean prison time? I just plead a guy for the exact same thing in Fulton County for two years probation and $1,000 fine,’ and I’d say, ‘Tell your client not to sell drugs in Walton County,’” Cook said.

Whitley Carpenter is a senior majoring in journalism in the Grady College of Journalism and Mass Communication, English in the Franklin College of Arts and Sciences and is pursuing a master’s degree in English at the University of Georgia.