Tuesday, September 15, 2015

Follow up on the story on judge's questioning of prosecutor's exercise of discretion not to charge

Less than a week ago, I wrote about a case in Colorado where a judge ordered a prosecutor to appear for a hearing to explain why the prosecutors' office did not file charges against a sheriff's deputy.  Go here for the details.  Today, the ABAJournal.com is reporting that the judge found the prosecutor should have filed charges (which I assume means the judge found the prosecutor abused his discretion in not doing so).  However, the judge also found that it was too late to do it now because the statute of limitations had run.

Should the judge have imposed sanctions for the abuse of discretion?  I don't think so.  Even though the prosecutor's explanation as to why he decided not to file charges is simply unbelievable (given the evidence available in the videos showing the incident), for good or for bad, prosecutorial discretion is a necessary component of our criminal justice system.  Prosecutors are, and should be, subject to criticism for their conduct, but in a case like this one, allowing the judge to impose sanctions would be problematic.


  1. The judge in this matter clearly exceeded his authority. Obviously this judge knows very little, if anything, about separation of powers. The prosecutor does not work for the judge (or any judge), and the prosecutor's decision (right or wrong, good or bad, whatever you want to call it) falls squarely within the bounds of prosecutorial discretion. This is a perfect example of how many judges around this country are beginning to let their power go straight to their heads. Professor Bernabe is correct when he says, "prosecutorial discretion is a necessary component of our criminal justice system". But the good professor is dead wrong when he claims, "[t]his is one of those cases where doing what the judge did is about as good at creating incentive on the prosecutors to do the right thing as you can do under the circumstances". B@!*s#%t! A judge's job is not to "create incentives" for prosecutors to do what the judge (or a law professor) thinks is the right thing when it comes to filing, prosecuting, dismissing, or refusing to file a criminal case. Unless a prosecutor violates a rule of professional conduct (and there is no rule for prosecutors to file or not file cases in any given situation), then judges, law professors, defense attorneys, and anybody else need to honor the rule of prosecutorial discretion. And prosecutors owe absolutely NO duty to explain why they filed or didn't file charges in a given case. Professor Bernabe, whatever his credentials may be, needs to learn that prosecutors have no duty to explain their charging decisions. And, finally, for the record, I am not a prosecutor. Nor am I a law enforcement officer. I'm just someone who is sick and tired of judges who believe that donning a black robe gives them an unfettered license to do as they please whenever they please. If anybody in this matter should be called to explain their conduct, it should be the judge who questioned this prosecutor.

    1. Like I said, I don't think the judge can, nor should, impose sanctions and prosecutorial discretion is needed for the system to work. But, as with any type of discretion, there is the possibility of abuse of discretion, which is why prosecutors should not be above criticism for their choices. You seem to imply that, as long as prosecutors do not violate a rule, no one has the right to criticize their decisions. I disagree. Prosecutors are public officials, and like all public officials, their conduct is open to criticism. That type of criticism serves as a check on possible abuse of discretion.

  2. It would also seem to me to raise significant Separation of Powers concerns were a judge to in effect order a prosecutor to prosecute a case or to punish a prosecutor for not prosecuting a case. If the prosecutor is ineffective, then he or she should be fired. But prosecution is an executive function, and unless there was some extant court order that was violated here, I do not see how a judge could sanction a prosecutor for not doing an effective job. And that is aside from any prosecutorial immunity the prosecutor may enjoy.