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The Pretrial Process10 IS

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PRETRIAL JUSTICE THE BAIL DECISION: PRETRIAL

RELEASE The Eighth Amendment and the

Right to Bail Modern Forms of Pretrial Release

PROSECUTORIAL CHARGING Discretion and the Separation

of Powers Doctrine Constitutional Limits: Selective

and Vindictive Prosecution SCREENING: THE GRAND JURY AND

THE PRELIMINARY EXAMINATION

The Grand Jury

Grand Jury Functions and Powers Misuse of the Grand Jury and the

Calls for Reform The Preliminary Examination Preliminary Examination

Procedures The Functions of the Preliminary

Examination LAW IN SOCIETY: PROSECUTORIAL

MISCONDUCT AND CONVICTING THE INNOCENT

The Prosecutor’s Power, Misconduct, and Ethics

Prosecution Error and Wrongful Conviction

Prosecution Policy and the Conviction of Innocents

Examples of Egregious Prosecutorial Misconduct

Correcting Prosecutorial Misconduct

LAW IN SOCIETY: PROSECUTION IN A TIME OF TERROR: PROSECUTING TERRORISTS

JUSTICES OF THE SUPREME COURT: REAGAN’S CONSERVATIVE LEGACY

Sandra Day O’Connor Antonin Scalia Anthony Kennedy

absolute immunity

arraignment

bail

bail bond

bail bondsman

bind over decision

charging

deposit bond

discovery

facial attack

formal charges

grand jury

immunity

indictment

information

initial appearance

motion

preliminary examination

preventive detention

prima facie case

qualified immunity

release on recognizance

screening

selective prosecution

separation of powers

subpoena

subpoena power

transactional immunity

trial de novo

true bill

use immunity

venue

vindictive prosecution

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

—Justice George Sutherland, Berger v. United States, 295 U.S. 78, 88 (1935)

CHAPTER OUTLINE

KEY TERMS

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PRETRIAL JUSTICE The pretrial process is the most important part of the judicial process for most arrested people because only a tiny fraction of those who are arrested ever reach a full trial. The overwhelming proportion of criminal cases are either dismissed at the pretrial stage or adjudicated by guilty plea. A small proportion of cases result in other dispositions, such as diversion. In 2002, federal prosecutors declined to prosecute 27 percent of the 124,335 suspects investigated for possible federal crimes.1 The U.S. district courts terminated cases involving 80,424 defendants, and 89 percent of them were convicted. “Almost all (96%) of those convicted pleaded guilty or no contest.”2

Similarly, most state felony defendants either had their cases dismissed or pleaded guilty. A Bureau of Justice Statistics report on felony case processing in the nation’s seventy-five largest counties found that for all felony cases filed in May 2002, the total conviction rate was 68 percent. The felony conviction rate was 57 percent, of which 54 per- cent were convicted by plea and 3 percent at trial. Of the 11 percent of felony charges that resulted in misdemeanor convictions, 11 percent were adjudicated by plea, and a negligible number by trial.3 “In most cases where the defendant was not convicted, it was because the charges against the defendant were dismissed. An estimated 24 percent of all cases ended in this way.” Another 7 percent of cases were diverted or placed on deferred adjudication. Only about 1 percent overall were acquitted.4

It is noteworthy that the factual investigation of cases, and not legal research or pro- cedural filings, is the most important thing that prosecutors and defense lawyers do during the pretrial process. Prosecutorial charging—the decision to dismiss a case or to press charges and the determination of which specific crimes to charge—depends in large mea- sure on the facts that have been discovered and reported by the police. A prosecutor reads the police report and ideally asks the officers to determine whether there are weaknesses in the evidence or other factors that would caution against proceeding with the case. According to American Bar Association standards, a prosecutor should not institute crim- inal charges that are not supported by probable cause or without “sufficient admissible evi- dence to support a conviction.”5 In major cases, the prosecutor may be part of the investigative team and will suggest what kinds of legally obtained evidence must be found in order to gain a conviction under a crime’s legal definition.6

A defense attorney’s first step in a case is to interview the defendant to find out what happened. Depending on the defendant’s mental capacities and willingness or ability to be entirely truthful, this task is often far from easy.7 Again depending on the defendant’s resources and the seriousness of the charges or potential charges, the attorney may hire a trained investigator. The attorney typically questions witnesses to investigate the case. A defendant who is free on pretrial release is often the best person to find alibi or other wit- nesses. But the attorney has expert knowledge of the substantive criminal law, and this knowledge helps him or her direct the search for facts relevant to a defense or to establish reasonable doubt. Leading legal scholars indicate that “interviewing and fact investigation are probably the most important skills that a good defense lawyer can offer her client.”8

Despite the overriding importance of fact investigation, the pretrial process involves a large number of legal procedures. These are likely to be utterly bewildering to the defen- dant and yet critically important to his or her ability to receive substantial justice and a fair trial. Pretrial release, by bail or personal recognizance, will determine whether the defen- dant sits in jail or goes free before trial. An attorney can facilitate pretrial release and, if it is refused, can continue to press for it. Defense counsel can make pretrial motions that challenge the admissibility of unconstitutionally obtained evidence. A lawyer can work for a dismissal throughout the pretrial period. These require the skills that a good attorney brings to bear in preparing for a satisfactory negotiated plea or in preparing for trial: thor- ough knowledge of the substantive criminal law, a careful analysis of the evidence, a sober weighing of the strengths and weaknesses of the case, and a willingness to use this infor- mation to fight for the client’s interests.

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At the same time, the prosecutor uses the same skills to decide whether to dismiss, to adequately negotiate a plea, and to determine which are the proper charges. The prosecutor’s preparation is necessary to present an adequate case before a grand jury in those jurisdictions that require an indictment. Similarly, although a judge decides whether to make a bind over decision, that is, whether to bind over a felony case for trial after a preliminary hearing, it is up to the prosecutor to establish a prima facie case at that point, or the case will be dismissed. A defense lawyer plays an important role at the preliminary examination. He or she must cross-examine prosecution witnesses or potentially lose that opportunity if the witness fails to appear at trial. Also, by probing the prosecutor’s case, the defendant’s lawyer prepares for a favorable plea agreement based on a better understanding of the strength of the case.

Some critics say that the decline in the number of trials and the heavy reliance on pretrial settlement by guilty plea has made our justice system less fair than in the past and has undermined the adversary system.9 But as this brief introduction indicates, the pretrial process in America has become lengthy and complex. Many cases are quickly dismissed, but a typical felony case takes, on average, from six months to a year from arrest to adjudi- cation to complete, although only half of all murder cases are resolved within one year.10

In contrast to the view that adjudication by plea undermines justice and adversariness, Professor Malcolm Feeley suggests that despite the decline in the number of trials, the expanded use of pretrial procedures actually strengthens the adversary system:

Probable cause hearings, bills of particulars, motions to suppress evidence, and the like, all shape the criminal process prior to trial and formal adjudication of guilt or innocence. In many cases, pretrial hearings—or for that matter negotiations in the shadow of the law—can become mini-trials. Whether the early review of the evidence reveals a strong or weak case or whether the testimony of a particular witness or the introduction of a specific piece of evidence will or will not be admitted into the record can make or break a case, and depending on the conclu- sion reached, charges may be dropped, reduced, or the accused may plead guilty or take his case to trial. So, while we have witnessed the demise of the trial, we have at the same time experienced an increase in pretrial opportunities to review in adversarial context some of the same types of issues that once were less carefully considered by the jury at trial.11

The modern pretrial process thus provides a defendant with fair treatment. An attorney is provided early in the process. Weaker cases are removed, by dismissal or plea, leaving trials for closely contested cases or for more serious crimes.

As suggested, the pretrial process is complex and filled with many important legal steps. This chapter closely examines a few of these processes: pretrial release or bail, the prosecutor’s charging decision, discovery, and the screening institutions of the grand jury and preliminary examination. The felony pretrial process includes other critical steps. Misdemeanors are typically handled in a more perfunctory way, although as statistics cited above indicate, about 11 percent of cases initially charged as felonies result in misde- meanor convictions. Some of the pretrial processes for a felony case include

● Initial appearance. A suspect is brought before a magistrate within twenty-four to forty- eight hours of arrest and is informed of the charges and of his or her constitutional rights, including the right to remain silent. At the initial appearance, the defendant may be rep- resented by a retained lawyer; indigents are provided with assigned counsel or a public defender. Bail or another mode of pretrial release is arranged or denied.

● Suppression hearings. Defendants may challenge the introduction of confessions, physical or eyewitness evidence, lineups, electronic eavesdropping evidence, and the like under con- stitutional or statutory exclusionary rules in special suppression hearings conducted before a judge to determine whether such evidence was obtained illegally.

● Pretrial motions. Motions are formal written requests to a judge to obtain a ruling or an order. There are standard pretrial motions, but a motion may be uniquely tailored to the case. Judges may grant or deny motions summarily or may order that hearings be held during which attorneys make extended argument to support or oppose the motions. Suppression

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hearings, for example, are initiated by motion. Motion hearings are open to the public (Waller v. Georgia, 1984). Motion practice is extremely important to the fairness of the trial process. Motions for a change of venue, for example, may play a vital role in avoiding local prejudice. Common motions include those to obtain continuances (adjournments), to request psychiatric services, to lower the amount of bail, to waive filing fees on the ground of indi- gence, for a competency hearing, to be tried by jury, to strike redundant counts of an indict- ment, to join or sever codefendants or charges in the same or separate trials, and so forth.

● Discovery. Very few processes are as critical as discovery in major criminal cases. Unlike pretrial rules in civil cases, which expedite the exchange of factual information between the parties before a trial, criminal procedural rules have been less open. The imbalance between the state’s police resources to investigate crimes and the limited resources of most indigent defendants has led the Supreme Court to mandate a level of sharing (Brady v. Maryland, 1963), although in recent years it has limited full disclosure. It is incumbent on competent defense lawyers to use all legal means to gain access to factual information gathered by the state.

● Prosecutor-defense conferences. In many jurisdictions today, plea arrangements or arrange- ments for the conduct of a trial are worked out between the prosecutor and the defense lawyer. They allow for rationalized discovery, an exchange of information (e.g., the defen- dant notifies the prosecutor of an alibi or insanity defense), and a calm atmosphere in which to discuss the strengths and weaknesses of a case. Conferences improve court efficiency and the rational handling of cases.

● Arraignment. The arraignment is a brief procedure where the charges are read to the defendant, who is then given the opportunity to plead guilty, not guilty, or nolo contendere or to remain mute. The practice is a mere formality in most courts and is often the arena for the taking of pleas after plea bargaining.

THE BAIL DECISION: PRETRIAL RELEASE The Eighth Amendment states: “Excessive bail shall not be required. . . . ” This does not guarantee pretrial release in every case, but it does reflect a policy favoring the pretrial freedom of a criminal suspect, and it supports the presumption of innocence. The bail pro- vision reflects the traditional method of balancing individual freedom with the state’s need to ensure that defendants will return to court to stand trial. Bail is the release of a defendant before trial based on that defendant’s promise to return. The promise is secured by some form of collateral, such as money, that the defendant agrees to transfer to the court if he or she does not show up for the trial. However, appellate courts have held that in extreme cir- cumstances, where it appears that no amount of bail will be sufficient to compel a defen- dant to return to court for trial, bail may be refused.12

This legal device has become a business. A bail bondsman receives a portion of the bail amount from the defendant, usually 10 percent, and in return posts a bail bond with the court, promising to pay the full bail amount if the defendant does not show. This results in pretrial freedom for the defendant, an income for the bail bondsman, and some assur- ance to the court that the defendant will show up. Some bail bondsmen employ bounty hunters to search for absconding defendants, itself a controversial practice.13 If the defen- dant defaults by “skipping town,” the bail bondsman must pay the full amount of the bail to the court and then find and sue the defendant for that money. Courts have the power to for- give part or all of the forfeited amount. Whereas this discretion may be fair in some instances, it is also an obvious source of corruption.

A defendant has a real interest in pretrial freedom. While on release, the defendant can continue to work, earn money, and maintain family relations. A person jailed for longer than a few days may lose his or her job and find it hard to get a new one. The defen- dant who is free on bail can play a more active role in finding witnesses and gathering evi- dence. He or she can also confer more freely with the defense attorney. Of course, the defendant, presumed to be innocent, also avoids the unpleasant reality of living under often squalid and possibly dangerous jail conditions.

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The public may have different interests, for freedom also makes it possible for a defendant to hide and avoid the trial process. Witness intimidation and killing are a possibil- ity. A New York Times investigation reports that “[a]t least 19 witnesses have been killed in New York City since 1980. Around the state in the last seven years, local district attorneys have charged at least 14 people with killing witnesses.”14 The report admitted that “[n]o one knows how many criminal cases evaporate because witnesses are threatened or assaulted. . . . Some prosecutors acknowledge that fear among witnesses is a staple of their work lives.”15

The problem of witness intimidation may be especially pervasive in areas infested with criminal gangs. A 1996 National Institute of Justice Report, based on a sample of prosecu- tors, indicated that witness intimidation was a major problem for half of the prosecutors in large jurisdictions and for 43 percent of the prosecutors in small jurisdictions.16 This is a matter of national concern. By 2006, seventeen states had passed some form of witness intimidation law. “Massachusetts legislation provides $750,000 a year to protect witnesses from intimidation when they testify to a grand jury or at criminal trials. Witnesses in the program can receive armed police escorts, surveillance, relocation and housing and living expenses.”17 A Maryland prosecutor estimated that a quarter of nonfatal shooting cases in Baltimore are dismissed because of witness intimidation. Two federal bills have been pro- posed by Representative Elijah E. Cummings of Maryland to authorize funds to support state efforts to combat witness intimidation, but they have not made it out of committee.18

The Eighth Amendment and the Right to Bail The Eighth Amendment does not absolutely guarantee pretrial release. Under English common law and American criminal procedure, bail is the presumed position in noncapital cases. Under common law, capital crimes punishable by death were not bailable. The mod- ern approach to bail in capital cases is to establish a presumption against bail where “the proof is evident or the presumption of guilt is great.” Thus even a capital suspect may obtain bail if a magistrate determines that the prosecutor’s case has weaknesses. If the prosecutor can show that a defendant had attempted to destroy evidence or to intimidate witnesses, bail can be denied.

The leading case of Stack v. Boyle (1951) overturned the high bail set for twelve Communist Party leaders who were charged under the Smith Act with advocating the vio- lent overthrow of the U.S. government. The bail amount for each was set at $50,000. The Supreme Court found little evidence that the defendants had a history or intention of flee- ing prosecution and no support for the idea that they would “jump bail” because they were involved in a worldwide communist conspiracy. The typical bail amount for suspects charged with crimes carrying a maximum penalty of five years’ imprisonment and a $10,000 fine was usually much lower than $50,000. The Supreme Court held that the high bail amount was arbitrary, excessive, and a violation of the Eighth Amendment. Chief Justice Fred Vinson said, “Unless this right to bail before trial is preserved, the presump- tion of innocence, secured only after centuries of struggle, would lose its meaning.”

Modern Forms of Pretrial Release Bail practice was for many years criticized as discriminatory, confining suspects who were likely to return for trial, simply because they lacked sufficient funds. Since the 1960s, most states and the federal government have established release mechanisms designed to release suspects who are likely to return for trial proceedings.

Release on Recognizance (ROR). A court officer interviews the defendant to determine whether personal characteristics make him or her a good prospect to return to court for additional hearings or trial. Objective characteristics include home stability, living with a family member, having a job or attending school, and prior history of escapes. If the suspect receives a high score indicating a likelihood of returning, eligibility is

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established for release on recognizance (ROR)—that is, release without posting any kind of security but by making a formal promise to return to court when summoned.

Conditions of Release. Modern laws allow a judge to place restrictions on a sus- pect released before trial, in addition to bail or as part of ROR, to ensure the suspect’s return to court for further proceedings. The Federal Bail Reform Act of 1984, which applies only to federal courts, mandates that the defendant follow these conditions:

1. Report to a police, pretrial release, or probation officer or other court agency on a regular basis.

2. Stay away from certain people (e.g., victim or witnesses) or places (e.g., airports, bars).

3. Be under the custody or care of a specific individual or treatment program that can ensure the defendant will appear and not endanger the community.

4. Maintain employment or schooling.

5. Comply with a curfew.

6. Not possess a deadly weapon.

7. Refrain from alcohol or drug use.

8. Undergo medical, psychiatric, or drug treatment.

9. Agree to forfeit property or money on failure to appear.

10. Execute a bail bond.

11. Be jailed in the evening and on weekends.

These conditions must be reasonably related to facilitating the defendant’s return and be tailored to the defendant’s circumstances.

Deposit Bond. A few states, to end the unsavory business of bail bondsmen and to ensure equal treatment for indigents, have created the deposit bond, also known as an “appearance bond,” as a bail bond substitute. If a judge believes that ROR is not appropri- ate, a bail amount is set and the defendant must raise 10 percent of the bail amount to be released. The 10 percent is not paid to a bail bondsman but to the court. If the defendant fails to appear, he or she becomes liable for the entire amount. Defendants who return to court, on the other hand, receive the deposit amount less a 1 percent retention fee.

The Illinois deposit bond law was challenged as a due process and equal protection violation but was upheld in Schilb v. Kuebel (1971), which referred to bail bondsmen in harsh terms. The Supreme Court rejected the argument that the 1 percent fee ultimately retained by the courts was discriminatory against indigents. The Court said that the fee was reasonable; also, the statute had an ROR provision that the judge could use as a release mechanism for indigent defendants who were good risks, thus avoiding any discrimina- tion. The Schilb decision, in addition to upholding the deposit bond system, displays faith in the nation’s trial court judges to fairly administer pretrial release.

Preventive Detention. One theory of bail—a pro-defendant, due process model approach—holds that the only reason to detain a suspect before trial is to ensure the integrity of the trial process. Under this theory, a bail amount should be set for only two purposes: to ensure the return of the defendant or to revoke bail to those who have attempted to destroy evidence or to intimidate witnesses while on bail. An alternate theory—a pro-prosecution, crime control model view—is that bail also serves other func- tions. It was widely known that in fact judges often set high bail to detain a suspect feared likely to commit crimes while awaiting trial. Denying bail for this reason is called preventive detention. Congress, believing that preventive detention can be constitutional when accompanied by procedural safeguards, authorized its use in the Bail Reform Act of 1984 (18 U.S.C. §§ 3141–50). The constitutionality of the act was upheld in United States v. Salerno (1987).

Read Case and Comments: United States v. Salerno.

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[a] “Clear and convincing” is a very high standard of proof. (See Table 3–1.)

[b] A facial attack means that the statute is unconstitutional under all circumstances, not just as applied in this case.

[c] Congress decided that crimes committed by defendants on bail is such a serious problem that the judge should predict whether the defendant will commit a crime while on bail.

CASE AND COMMENTS

United States v. Salerno 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. The Bail Reform Act of 1984 (Act) allows a federal court to detain an arrestee pend-

ing trial if the Government demonstrates by clear and convincing evidence [a] after an adversary hearing that no release conditions “will reasonably assure . . . the safety of any other person and the community.” * * * We granted certiorari because of a conflict among the Courts of Appeals regarding the validity of the Act. [b] We hold that, as against the facial attack mounted by these respondents, the Act fully comports with constitutional requirements. * * *

I [The Bail Reform Act is a response to “the alarming problem of crimes committed by persons on release.” It gives a “judicial officer” discretion to order the pretrial detention of an arrestee if the judge “finds that no condition[s] will reasonably assure the appear- ance of the person as required and the safety of any other person and the community.” [c] The law includes procedural safeguards: the presence of counsel, the right to testify, to present witnesses and evidence, and to cross-examine other witnesses. If the judge finds that no release conditions “can reasonably assure the safety of other persons and the community,” the findings of fact must be stated in writing, supported by “clear and convincing evidence.”]

The judicial officer is not given unbridled discretion in making the detention deter- mination, [but must consider several statutory factors: [d] (1) the nature and seriousness of the charges, (2) the substantiality of the government’s evidence against the arrestee, (3) the arrestee’s background and characteristics, and (4) the nature and seriousness of the danger posed by the arrestee’s release. If pretrial detention is ordered,] the detainee is entitled to expedited appellate review of the detention order.

[Anthony Salerno was charged with racketeering in a twenty-nine-count indictment. Facts were presented to show that Salerno was a high-ranking “boss” in an organized crime “family.” In the preventive detention hearing, the government submitted evidence from court-ordered wiretaps and offered to produce testimony of two trial witnesses who would assert that Salerno personally participated in two of the murder conspiracies charged against him. Salerno presented character witnesses. The district court, believing the gov- ernment’s allegations and that Salerno would intimidate witnesses if released, denied release before his trial.] [e]

[The court of appeals reversed, concluding that detaining persons because they were thought to present a future danger to the community violates due process.] It reasoned that our criminal law system holds persons accountable for past actions, not anticipated future actions. Although a court could detain an arrestee who threatened to flee before trial, such detention would be permissible because it would serve the basic objective of a criminal system—bringing the accused to trial. * * *

II * * * Respondents present two grounds for invalidating the Bail Reform Act’s provisions permitting pretrial detention on the basis of future dangerousness. First, they rely upon the Court of Appeals’ conclusion that the Act exceeds the limitations placed upon the Federal Government by the Due Process Clause of the Fifth Amendment. Second, they contend

(continued)

[e] Do you agree with the decision of the district court or the Court of Appeals?

[d] Which of these factors seem predictive of future behavior?

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that the Act contravenes the Eighth Amendment’s proscription against excessive bail. We treat these contentions in turn.

A * * * Respondents first argue that the Act violates substantive due process because the pre- trial detention it authorizes constitutes impermissible punishment before trial. * * * The Court of Appeals assumed that pretrial detention under the Bail Reform Act is regulatory, not penal, and we agree that it is. [f]

As an initial matter, the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment. * * * To determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to legislative intent. * * * Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns on “‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].’” * * *

We conclude that the detention imposed by the Act falls on the regulatory side of the dichotomy. The legislative history of the Bail Reform Act clearly indicates that Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals. * * * Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. * * * There is no doubt that preventing danger to the community is a legitimate regulatory goal.

Nor are the incidents of pretrial detention excessive in relation to the regulatory goal Congress sought to achieve. [g] The Bail Reform Act [is] carefully limit[ed] * * * to the most serious of crimes[:] * * * crimes of violence, offenses for which the sentence is life imprisonment or death, serious drug offenses, or certain repeat offenders. The arrestee is entitled to a prompt detention hearing, * * * and the maximum length of pretrial detention is limited by the stringent time limitations of the Speedy Trial Act. * * * Moreover, * * * the conditions of confinement envisioned by the Act “appear to reflect the regulatory pur- poses relied upon by the” Government [requiring] that detainees be housed in a “facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal.” * * * We conclude, therefore, that the pretrial detention contemplated by the Bail Reform Act is regulatory in nature, and does not constitute pun- ishment before trial in violation of the Due Process Clause.

[Other kinds of regulatory detention, upheld by the Supreme Court as not violating due process, include [h] wartime detention of persons believed to be dangerous, potentially dangerous resident aliens pending deportation proceedings, mentally unstable individuals who present a danger to the public, dangerous defendants who become incompetent to stand trial, dangerous arrested juveniles before trial, and defendants who present risks of flight or dangers to witnesses.]

* * * The Bail Reform Act * * * narrowly focuses on a particularly acute problem in which the Government interests are overwhelming. [i] The Act operates only on individu- als who have been arrested for a specific category of extremely serious offenses. * * * Congress specifically found that these individuals are far more likely to be responsible for dangerous acts in the community after arrest. * * *

[Chief Justice Rehnquist recognized the individual’s strong interest in liberty, but held that given the carefully delineated law, individual liberty must be “subordinated to the greater needs of society.” He concluded this section by holding that the procedures of the Bail Reform Act were] “adequate to authorize the pretrial detention of at least some [people] charged with crimes.” * * * As we stated in Schall [v. Martin (1984)], “there is nothing inherently unattainable about a prediction of future criminal conduct.” * * * [j]

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CASE AND COMMENTS (continued )

[f] Part II.A. addresses the due process challenge to the statute. What is the distinction that determines whether the detention ordered by the statute violates Salerno’s due process liberty interests?

[j] Schall upheld preventive detention for juvenile defendants.

[i] Does this mean that all defendants charged with extremely serious crimes can always be denied pretrial freedom?

[h] Are these examples similar to preventive detention, or can they be “distinguished” as a matter of law?

[g] Notice the two “punishment” arguments: first, whether preventive detention is punishment, and second, whether preventive detention is so excessive a means to achieve the regulatory purpose of preventing crime by defendants on bail as to violate due process.

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B * * * We think that the Act survives a challenge founded upon the Eighth Amendment.

The Eighth Amendment addresses pretrial release by providing merely that “[e]xcessive bail shall not be required.” This clause, of course, says nothing about whether bail shall be available at all. Respondents nevertheless contend that this Clause grants them a right to bail calculated solely upon considerations of flight. They rely on Stack v. Boyle. * * * In respondents’ view, since the Bail Reform Act allows a court essentially to set bail at an infinite amount for reasons not related to the risk of flight, it violates the Excessive Bail Clause. [k] Respondents concede that the right to bail they have discovered in the Eighth Amendment is not absolute. A court may, for example, refuse bail in capital cases. And, as the Court of Appeals noted and respondents admit, a court may refuse bail when the defendant presents a threat to the judicial process by intimidating witnesses. Respondents characterize these exceptions as consistent with what they claim to be the sole purpose of bail—to ensure the integrity of the judicial process. [l]

* * * [W]e reject the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release. * * *

* * * Nothing in the text of the Bail Clause limits permissible government consider- ations solely to questions of flight. The only arguable substantive limitation of the Bail Clause is that the government’s proposed conditions of release or detention not be “exces- sive” in light of the perceived evil. Of course, to determine whether the government’s response is excessive, we must compare that response against the interest the government seeks to protect by means of that response. Thus, when the government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more. * * * We believe that when Congress has mandated deten- tion on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on bail.

* * * JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satis- faction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at anytime in the future. [m] Such statutes, consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution. Today a majority of this Court holds otherwise. Its decision disregards basic principles of justice established centuries ago and enshrined beyond the reach of govern- mental interference in the Bill of Rights. * * *

II * * * Let us apply the majority’s reasoning to a similar, hypothetical case. After investiga- tion, Congress determines (not unrealistically) that a large proportion of violent crime is perpetrated by persons who are unemployed. It also determines, equally reasonably, that much violent crime is committed at night. From amongst the panoply of “potential solu- tions,” Congress chooses a statute which permits, after judicial proceedings, the imposition of a dusk-to-dawn curfew on anyone who is unemployed. Since this is not a measure enacted for the purpose of punishing the unemployed, and since the majority finds that

[k] Part II.B. discusses the Eighth Amendment challenge. Is the denial of bail the same as imposing excessive bail?

[m] Do you agree that the law is inconsistent with the presumption of innocence?

[l] The integrity of the judicial process is undermined when a defendant flees from the trial, but not when he commits a crime while on bail.

(continued)

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preventing danger to the community is a legitimate regulatory goal, the curfew statute would, according to the majority’s analysis, be a mere “regulatory” detention statute, entirely compatible with the substantive components of the Due Process Clause. [n]

[Justice Marshall claims that the majority simply redefined punishment as regula- tion, and so allows a clear violation of the due process rights of detainees.] * * *

III The essence of this case may be found, ironically enough, in [another] provision of the Act to which the majority does not refer, [p]rovid[ing] that “[n]othing in this section shall be construed as modifying or limiting the presumption of innocence.” But the very pith and purpose of this statute is an abhorrent limitation of the presumption of innocence. The majority’s untenable conclusion that the present Act is constitutional arises from a spe- cious denial of the role of the Bail Clause and the Due Process Clause in protecting the invaluable guarantee afforded by the presumption of innocence.

* * * [Justice Stevens dissented.]

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[n] Does Justice Marshall’s shocking hypothesis apply to the majority’s reasoning? On the one hand, the Act applies only to arrestees; on the other hand, it applies to people presumed to be innocent. Which factor best fits Marshall’s hypothetical?

PROSECUTORIAL CHARGING Prosecutors have nearly unlimited discretion in deciding whether to formally charge (accuse) a person with a crime, as long as there is probable cause to support the accusation, or to dismiss charges filed by the police. This discretion includes deciding which crimes to charge (Ball v. United States, 1985), whether to plea-bargain,19 when to bring charges (United States v. Lovasco, 1977), and whether to grant immunity to one or more defen- dants in the case.20 Courts do not normally oversee this decision, nor do they review the prosecutor’s decision to charge with a more or less serious crime based on the same facts, or in a murder case, whether to seek the death penalty in states that allow that sentence.

Formal charges drafted by the prosecutor are either by indictment or by information. In federal prosecutions and approximately one-third of the states, formal charges are drawn up by the prosecutor and approved by a citizens’ grand jury.21 A grand jury hears witnesses and reviews relevant evidence in secret. It votes on the charges and hands up (approves) an indictment by majority vote. In states that do not require a grand jury indict- ment, a prosecutor initiates the prosecution by filing an information against the defendant after a preliminary examination has been held and a prima facie case established or after the preliminary examination has been waived by the defendant. Both indictments and informa- tion are formal charging instruments (documents) that list the specific crimes that the prose- cutor must prove and that the defendant must oppose. They state a few facts sufficient to establish a basis—either probable cause or a prima facie case—for the prosecutor to go for- ward with the case.

In practice, the prosecutor has almost as much control over charges by indictment as by information, for grand juries almost always follow the prosecutor’s lead. Formal charges are important because they tell the defendant that he or she will stand trial only on the crimes charged. If new facts come to light, the prosecutor can charge a defendant with additional “counts” (specific crimes) in an amended indictment approved by the grand jury or in an amended information approved by the judge.

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Discretion and the Separation of Powers Doctrine A prime reason for prosecutorial discretion is the separation of powers doctrine. The prosecutor is an executive branch officer and is typically an elected county official. Federal prosecutors are appointed by the president. Judges, whether elected or appointed, are responsible for “the judiciary,” a separate branch of government, and do not exercise direct control over prosecutors. This is so even though prosecutors are “officers of the court,” as are all lawyers. An example of the separation of powers doctrine arose in the civil rights era case of United States v. Cox (1965). A federal judge in Mississippi believed that African American defendants lied in testifying that a local registrar refused to give them voting registration applications. He referred their case to a grand jury, which proceeded to hand up indictments for perjury. The U.S. attorney (i.e., the federal prosecutor) in that dis- trict, on orders of the attorney general of the United States, refused to sign the indictment, thus blocking the prosecution. The federal district court judge then held the U.S. attorney in contempt and threatened to hold the attorney general in contempt. The case was quickly appealed to the Court of Appeals, which reversed the trial court:

The discretionary power of the attorney for the United States in determining whether a prose- cution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause. Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive officer of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exer- cise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions. (Cox, 5th Circuit, 1965)22

The basic rule, therefore, is one of prosecutorial autonomy from judicial control in the charging function (Town of Newton v. Rumery, 1987; United States v. Armstrong, 1996).

There are many reasons for discretion in the charging process. One is that the same behavior can often be charged under different sections of the penal code, carrying higher or lower maximum penalties. The forcible taking of property can be charged as a robbery with a potential life sentence or as a theft from the person, which carries a lower maximum sentence. A single criminal incident can generate a variety of separate charges. A robber or rapist who drives a victim some distance, for example, can also be charged with kidnap- ping in jurisdictions in which a ransom demand is not part of the crime definition. A pros- ecutor can decline to charge separate crimes for reasons of efficiency. A burglar may be charged with one offense if he admits to numerous others, thus helping the police to clear a number of crimes. He can still be sentenced, under various sentencing systems, to a suf- ficiently severe penalty for the single crime to achieve public condemnation and deter- rence. Prosecutors can charge all individuals involved in a crime or can dismiss charges against a minor participant. The prosecutor can offer a grant of immunity to a lesser actor to ensure testimony against other codefendants. The charging power gives the prosecutor substantial leverage in positioning a case to the state’s advantage at trial or in plea bargain- ing. There is no rule that requires the prosecutor to charge the maximum in all of these examples. To do so may create unnecessary oppression. The “right” level of charging requires great judgment.

Morally difficult decisions arise where the prosecutor does not seek a maximum penalty for policy reasons. In the case of Gary L. Ridgway, the “Green River killer”— perhaps the worst serial killer in American history—the prosecutor agreed to not seek the death penalty so that Ridgway would identify his victims and bring closure to the victims’ families. DNA linked Ridgway to seven victims, but under his plea arrangement he admit- ted to killing at least forty-eight women. The King County (Seattle) prosecutor, Norm Maleng, said “It had been excruciating to decide whether to prosecute Mr. Ridgway for the seven murders and pursue the death penalty or spare him the death penalty in exchange for information on the killings.”23

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As an elected or appointed official, a charging prosecutor’s decisions cannot be entirely divorced from politics. Most decisions follow legal standards (e.g., evidence inad- equate to convict) and legitimate policy factors (e.g., negligible harm caused by crime; restitution), but the suspicion often lingers that political factors, such as reelection, may weigh in the charging decision. The positive side of elected prosecutors is that their poli- cies and practices are more open to public input; on occasion, a prosecutor who pursues an unpopular course may be removed by the ballot box. This was the case with a Michigan prosecutor who was seen as overly zealous in his failed attempts to convict Dr. Jack Kevorkian of assisted suicide.24 The negative side is that political considerations may warp the decision to charge, which ideally is made evenhandedly according to legal criteria. Even if political considerations are not visible, critics accuse prosecutors of using their discretion to routinely overcharge defendants so that the defendants will be forced into disadvantageous plea bargains. Prosecutors reply that they frame charges by fitting the facts to the definitions of the penal law. In rebuttal, defense-oriented critics maintain that statutory criminal penalties are unrealistically harsh.

Constitutional Limits: Selective and Vindictive Prosecution Selective prosecution occurs when a defendant is singled out for charging on imper- missible grounds, such as race, religion, or political beliefs, or for exercising constitu- tional rights. It is very difficult for a defendant to succeed in proving selective prosecution. The discrimination has to be blatant, where, for example, after a fatal rob- bery, a prosecutor charges an African American defendant with capital murder while charging white co-conspirators with second-degree murder, unless a rational factor distinguished the co-defendants. The classic case of selective prosecution, which vio- lates the equal protection of the law under the Fourteenth Amendment, was Yick Wo v. Hopkins (1886). A San Francisco ordinance required laundries to operate in brick or stone buildings unless the board of supervisors granted a waiver. The board granted per- mits to operate laundries in wooden buildings to all white applicants except one, but it denied such permits to two hundred Chinese applicants. This blatant racial discrimi- nation in the enforcement of a law, which would essentially have been fair if it had been applied uniformly, was held to violate the Equal Protection Clause.

In Oyler v. Boles (1962), the Supreme Court held that some prosecutor selectivity in deciding to prosecute offenders under a habitual offender statute does not violate the Equal Protection Clause unless the “selection was deliberately based upon an unjustifiable stan- dard such as race, religion, or other arbitrary classification.” In Wayte v. United States (1985), the Supreme Court found no selective prosecution where only sixteen men were indicted for failing to register for the draft out of about 674,000 who had failed to register. Wayte claims that he was singled out for prosecution because he wrote letters to the govern- ment stating that he would not register on grounds of conscience—that is, he claimed he was prosecuted for exercising his right to free speech under the First Amendment. The facts showed that 8.3 million out of 9 million men required to register did so. The Selective Service System (SSS) adopted a policy of “passive enforcement.” That is, it decided to not actively investigate and prosecute nonregistrants unless they advised the SSS that they were not registering. Instead, the SSS wrote to known violators, requested that they comply with their duty to register or explain why not, and warned that a violation could result in criminal prosecution. After a year of this, the SSS sent the names of 134 young men, including Wayte, to the Department of Justice (DOJ) for investigation and potential prosecution. Further names were screened out, and FBI agents were sent to interview nonregistrants to persuade them to change their minds—this was known as the “beg” policy. After six months, the DOJ instructed U.S. attorneys not to initiate prosecutions. Instead, the president announced a grace period to give nonregistrants a further opportunity to register without penalty. Wayte still did not register and was finally prosecuted. Those who were not indicted were exempt from the draft, could not be found, or were still under investigation.

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The Supreme Court held that there was no selective prosecution. Wayte was prose- cuted essentially for failing to register and not because he protested his reasons for nonreg- istration vocally. It was true that “the Government was aware that the passive enforcement policy would result in prosecution of vocal objectors.” Discriminatory purpose, however, implies more than awareness of consequences. “It implies that the decisionmaker . . . selected . . . a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” This could not be shown in the present case. The selective prosecution doctrine under the Equal Protection Clause requires a showing of both discriminatory effect and discriminatory purpose. Under the passive enforcement program, some, but not all, of those who exercised their First Amendment rights to protest draft registration were prosecuted. Some men who had not protested were indicted. Wayte “has not shown that the enforcement policy selected nonregistrants for prosecution on the basis of their speech. . . . The Government treated all reported nonregistrants similarly. It did not subject vocal nonregistrants to any special burden. Indeed, those prosecuted in effect selected themselves for prosecution by refusing to register after being reported and warned by the Government.” Therefore, the Court found no discriminatory effect.

Read Case and Comments: United States v. Armstrong.

Vindictive prosecution occurs when new and more serious charges are brought simply because a defendant has exercised his or her statutory or constitutional rights. For example, if a defendant wins a new trial after appealing a conviction for breaking and entering, it is illegally vindictive behavior for the prosecutor to recharge the defendant with the more serious crime of burglary. Increasing the charge might be interpreted as the prosecutor’s “getting even” with the defendant for exercising the legal right to appeal. North Carolina v. Pearce (1969) dealt with a situation in which a defendant suc- cessfully overturns a conviction on appeal (whether for constitutional or nonconstitu- tional errors) and is retried, reconvicted, and resentenced for the same crime. The Supreme Court ruled that vindictiveness must play no part in the resentencing. The con- cern was that a harsher sentence after a successful appeal was seen to punish defendants for exercising their constitutional rights to appeal. This would “chill” the right to appeal; that is, it would cause prisoners to not pursue their rights. In practice, this meant that the second sentencing could not be harsher than the first unless new facts came to the atten- tion of the sentencing judge.

The Pearce nonvindictiveness principle, based on concepts of due process fairness, was applied to cases in which a prosecutor has an opportunity to charge a defendant a sec- ond time. In Blackledge v. Perry (1974), Perry was found guilty of a misdemeanor and was sentenced to six months’ incarceration. Under North Carolina’s two-tiered trial system, instead of appealing, he was granted a trial de novo in the superior court, where “the slate is wiped clean, the prior conviction annulled, and the prosecution and defense begin anew.” The prosecutor then charged Perry with the felony of assault with a deadly weapon. He was convicted and sentenced to a term of five to seven years in prison. On appeal to the Supreme Court, Justice Potter Stewart held that the prosecutor’s enhancement of the charges constituted a due process violation for “vindictiveness.” It was not necessary to show that the prosecutor was motivated by ill will or bad faith, only that the harsher charge was in response to the defendant’s exercise of a legal right. The basis of the vindictiveness rule is “the fear that such vindictiveness may unconstitutionally deter a defendant’s exer- cise of the right to appeal his first conviction.” Due process requires that “a defendant be freed of the apprehension of such a retaliatory motivation” on the part of the prosecutor. In this instance, “[a] person convicted of an offense is entitled to pursue his statutory right to a trial de novo without apprehension that the State will retaliate by substituting a more seri- ous charge for the original one thus subjecting him to a significantly increased potential period of incarceration.”

In United States v. Goodwin (1982), Goodwin was stopped for speeding by a federal park police officer in Maryland; he was ordered back into his car by the officer and asked

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[a] What are the sources of the evidence put forward by the prosecution and the defense? Which seems stronger?

CASE AND COMMENTS

United States v. Armstrong 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996)

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. [Christopher Lee Armstrong and other African American men (“respondents”) were

indicted in Los Angeles federal court for possession with intent to distribute more than 50 grams of crack cocaine and for federal firearms charges. A federal–state drug task force investigation established that they were regular dealers. The respondents filed a motion to dismiss the indictment, alleging that they were selected for federal prosecution because they are black. They also requested discovery of the prosecutor’s files to ascertain whether racial bias existed. The Supreme Court denied the discovery motion. Discovery allows defendants access only to factual material in response to specific charges, not to the Government’s “work product.” The Supreme Court also noted that discovery to locate evi- dence of selective prosecution requires prosecutors to comb their files looking for docu- ments “which might corroborate or refute the defendant’s claim,” thus diverting prosecutors’ resources and possibly disclosing the Government’s prosecutorial strategy.]

In this case, we consider the showing necessary for a defendant to be entitled to dis- covery on a claim that the prosecuting attorney singled him out for prosecution on the basis of his race. We conclude that respondents failed to satisfy the threshold showing: They failed to show that the Government declined to prosecute similarly situated suspects of other races.

In support of their motion, [respondents] offered only an affidavit by a “Paralegal Specialist,” employed by the Office of the Federal Public Defender representing one of the respondents. The only allegation in the affidavit was that, in every one of the 24 [crack cocaine] cases closed by the office during 1991, the defendant was black. Accompanying the affidavit was a “study” listing the 24 defendants, their race, whether they were prose- cuted for dealing cocaine as well as crack, and the status of each case. * * *

The Government * * * submitted affidavits and other evidence to explain why it had chosen to prosecute respondents. * * * The federal and local agents * * * alleged in affi- davits that race played no role in their investigation. An Assistant United States Attorney explained in an affidavit that the decision to prosecute met the general criteria for prosecu- tion, because [of the large quantity of cocaine involved, the multiple sales, the firearms violations connected to the sales, and the criminal histories of the defendants]. The Government also submitted sections of a published 1989 Drug Enforcement Administration report which concluded that “large-scale, interstate trafficking networks controlled by Jamaicans, Haitians and Black street gangs dominate the manufacture and distribution of crack.” [a]

In response, one of respondents’ attorneys submitted an affidavit alleging that an intake coordinator at a drug treatment center had told her that there are “an equal number of caucasian users and dealers to minority users and dealers.” Respondents also submitted an affidavit from a criminal defense attorney alleging that in his experience many non- blacks are prosecuted in state court for crack offenses, and a newspaper article reporting that federal “crack criminals . . . are being punished far more severely than if they had been caught with powder cocaine, and almost every single one of them is black.” * * *

A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one. [b] These cases afford a “background presumption,” that the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims.

[b] The defendant in a selective prosecution challenge is handicapped at the outset. Is this a reasonable starting point?

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A selective-prosecution claim asks a court to exercise judicial power over a “special province” of the Executive. The Attorney General and United States Attorneys retain “‘broad discretion’” to enforce the Nation’s criminal laws. Wayte v. United States (1985). They have this latitude because they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to “take Care that the Laws be faithfully executed.” U.S. Const., Art. II, §3. As a result, “the presumption of regularity supports” their prosecutorial decisions and, “in the absence of clear evidence to the con- trary, courts presume that they have properly discharged their official duties.” [c] In the ordinary case, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”

Of course, a prosecutor’s discretion is “subject to constitutional constraints.” One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, is that the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification.” [d] A defen- dant may demonstrate that the administration of a criminal law is “directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive” that the system of prosecution amounts to “a practical denial” of equal protection of the law. Yick Wo v. Hopkins (1886).

In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “clear evidence to the contrary.” We explained in Wayte why courts are “properly hesitant to examine the decision whether to prosecute.” Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. “Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily suscepti- ble to the kind of analysis the courts are competent to undertake.” [e] It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.”

The requirements for a selective-prosecution claim draw on “ordinary equal protec- tion standards.” The claimant must demonstrate that the federal prosecutorial policy “had a discriminatory effect and that it was motivated by a discriminatory purpose.” [f] To estab- lish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. This requirement has been [long] estab- lished in our case law. * * *

The similarly situated requirement does not make a selective-prosecution claim impossible to prove. * * * [W]e invalidated an ordinance, also adopted by San Francisco, that prohibited the operation of laundries in wooden buildings. Yick Wo. The plaintiff in error successfully demonstrated that the ordinance was applied against Chinese nationals but not against other laundry-shop operators. The authorities had denied the applications of 200 Chinese subjects for permits to operate shops in wooden buildings, but granted the applications of 80 individuals who were not Chinese subjects to operate laundries in wooden buildings “under similar conditions.” Ibid. * * *

[The Supreme Court restated the rule that the respondents had to show not only that black defendants were prosecuted but that white defendants were not prosecuted for crack cocaine offenses. It is not relevant, as the Circuit Court did, to simply start] “with the pre- sumption that people of all races commit all types of crimes—not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group.” It cited

[c] An evidentiary standard is provided—a defendant must show selective prosecution by “clear evidence.”

[e] Two reasons are given: the competence of the executive in juggling a number of policy considerations, and a desire not to weaken effective prosecution.

[d] The Fifth Amendment (1791) has a Due Process Clause but no Equal Protection Clause, as does the Fourteenth Amendment (1868). In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education (1954), the Court held that the Fifth Amendment Due Process Clause includes an equal protection principle. Discrimination forbidden to the states is also forbidden to the federal government.

(continued)

[f] The rule has two prongs, making it more difficult for a defendant to prove.

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no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show: More than 90 percent of the persons sentenced in 1994 for crack cocaine trafficking were black, 93.4 percent of convicted LSD dealers were white, and 91 percent of those convicted for pornography or prostitution were white. Presumptions at war with presumably reliable statistics have no proper place in the analysis of this issue.

* * * In the present case, if the claim of selective prosecution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated differently than respondents. For instance, respondents could have investigated whether similarly situated persons of other races were prosecuted by the State of California and were known to federal law enforcement officers, but were not prosecuted in federal court. We think the required threshold—a credible showing of different treatment of similarly situated persons—adequately balances the Government’s interest in vigorous prosecution and the defendant’s interest in avoiding selective prosecution.

In the case before us, respondents’ “study” did not constitute “some evidence tend- ing to show the existence of the essential elements of” a selective-prosecution claim. The study failed to identify individuals who were not black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted. This omis- sion was not remedied by respondents’ evidence in opposition to the Government’s motion for reconsideration. The newspaper article, which discussed the discriminatory effect of federal drug sentencing laws, was not relevant to an allegation of discrimination in deci- sions to prosecute. [g] Respondents’ affidavits, which recounted one attorney’s conversa- tion with a drug treatment center employee and the experience of another attorney defending drug prosecutions in state court, recounted hearsay and reported personal con- clusions based on anecdotal evidence. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

[Justices Souter, Ginsburg, and Breyer concurred in the judgment as to selective prosecution, but expressed reservations or dissent as to its ruling on the issue of discovery.]

JUSTICE STEVENS, dissenting. Federal prosecutors are respected members of a respected profession. Despite an occa-

sional misstep, the excellence of their work abundantly justifies the presumption that “they have properly discharged their official duties.” Nevertheless, the possibility that political or racial animosity may infect a decision to institute criminal proceedings cannot be ignored. For that reason, it has long been settled that the prosecutor’s broad discretion to determine when criminal charges should be filed is not completely unbridled. As the Court notes, how- ever, the scope of judicial review of particular exercises of that discretion is not fully defined.

The United States Attorney for the Central District of California is a member and an officer of the bar of that District Court. As such, she has a duty to the judges of that Court to maintain the standards of the profession in the performance of her official functions. If a District Judge has reason to suspect that she, or a member of her staff, has singled out par- ticular defendants for prosecution on the basis of their race, it is surely appropriate for the judge to determine whether there is a factual basis for such a concern. * * *

The Court correctly concludes that in this case the facts presented to the District Court in support of respondents’ claim that they had been singled out for prosecution because of their race were not sufficient to prove that defense. [Justice Stevens, neverthe- less, argued that the discovery ordered by the district judge should have gone forward for the following three reasons.] * * * [h]

* * * First, the Anti-Drug Abuse Act of 1986 and subsequent legislation established a regime of extremely high penalties for the possession and distribution of so-called “crack” cocaine. Those provisions treat one gram of crack as the equivalent of 100 grams

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[g] Constitutional challenges claiming discrimination often have to amass considerable evidence collected by expert social scientists to prove a claim and to thwart doubts about the conclusion.

[h] Although Justice Stevens agreed that the defendants did not amass proof of selective prosecution by the federal prosecutor based on race, he supported the conduct of a hearing on the issue by the trial judge. Justice Stevens felt that the greater severity of sentencing for crack cocaine than powdered cocaine resulted in blacks being sentenced more harshly made further inquiry reasonable.

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of powder cocaine. The distribution of 50 grams of crack is thus punishable by the same mandatory minimum sentence of 10 years in prison that applies to the distribution of 5,000 grams of powder cocaine. * * *

Second, the disparity between the treatment of crack cocaine and powder cocaine is matched by the disparity between the severity of the punishment imposed by federal law and that imposed by state law for the same conduct. * * *

Finally, it is undisputed that the brunt of the elevated federal penalties falls heavily on blacks. While 65 percent of the persons who have used crack are white, in 1993 they represented only 4 percent of the federal offenders convicted of trafficking in crack. [i] Eighty-eight percent of such defendants were black. During the first 18 months of full guideline implementation, the sentencing disparity between black and white defendants grew from preguideline levels: Blacks on average received sentences over 40% longer than whites. * * * Those figures represent a major threat to the integrity of federal sentencing reform, whose main purpose was the elimination of disparity (especially racial) in sentenc- ing. The Sentencing Commission acknowledges that the heightened crack penalties are a “primary cause of the growing disparity between sentences for Black and White federal defendants.”

The extraordinary severity of the imposed penalties and the troubling racial patterns of enforcement give rise to a special concern about the fairness of charging practices for crack offenses. Evidence tending to prove that black defendants charged with distribution of crack in the Central District of California are prosecuted in federal court, whereas mem- bers of other races charged with similar offenses are prosecuted in state court, warrants close scrutiny by the federal judges in that district. * * *

* * * In sum, I agree with the Sentencing Commission that “while the exercise of discretion by prosecutors and investigators has an impact on sentences in almost all cases to some extent, because of the 100-to-1 quantity ratio and federal mandatory minimum penalties, discretionary decisions in cocaine cases often have dramatic effects.” The severity of the penalty heightens both the danger of arbitrary enforcement and the need for careful scrutiny of any colorable claim of discriminatory enforcement. * * * I therefore respectfully dissent.

[i] Does this disparity create a presumption that defendants selected for prosecution are disproportionately black? If the disparity is created by the action of law enforcement agencies, should that be a basis for a selective prosecution claim?

to raise the front seat armrest so the officer could see what was in a clear plastic bag. Instead, Goodwin drove off, knocking the officer down. The officer filed a complaint against Goodwin in the federal district court, charging him with misdemeanor assault. The case was set for trial, but Goodwin fled the jurisdiction. He was found in custody in Virginia three years later and was returned to federal custody in Maryland. His misde- meanor charges were to be tried before a federal magistrate. Goodwin then requested a jury trial. The case was transferred from the magistrate’s court, which had no authority to try felonies, to a felony-level court. The U.S. attorney obtained a felony indictment against Goodwin for forcibly assaulting a federal officer. After conviction, Goodwin claimed that the enhanced charge amounted to vindictiveness under the rule of Blackledge. The Court disagreed and found no vindictiveness:

There is good reason to be cautious before adopting an inflexible presumption of prosecutor- ial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply

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may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins—and certainly by the time a conviction has been obtained—it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that informa- tion, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision. (United States v. Goodwin, 1982)

Therefore, a defendant’s request for a jury over a bench trial, before trial, does not trigger a presumption of vindictiveness when charges are thereafter increased.

In Thigpen v. Roberts (1984), Barry Joe Roberts lost control of his car and collided with a pickup truck, killing a passenger in the truck. He was convicted of four misde- meanor driving offenses in a Mississippi justice of the peace court. The charges were brought by a county prosecutor who had responsibility only for misdemeanors. Roberts sought a trial de novo in the circuit court, and the district attorney, who could seek a felony indictment, brought felony charges against him. After conviction, Roberts appealed. The Supreme Court held that the case was governed by the rule of Blackledge v. Perry (1974) and that the felony prosecution had violated his due process rights. The fact that two different prosecutors were involved did not eliminate the possibility of institutional vindictiveness.

SCREENING: THE GRAND JURY AND THE PRELIMINARY EXAMINATION An essential function at the pretrial stage of the judicial process is screening—eliminating cases that should not go to trial. Quickly screening out innocent suspects eliminates “easy” cases from trial dockets and relieves innocent suspects from further expense, inconve- nience, and fear. As noted earlier, most cases are screened out of the judicial process by prosecutors who decline to prosecute suspects arrested by the police. Prosecutors may exercise their discretion to dismiss even when probable cause to convict exists. The discre- tionary dismissal may depend on a host of factors: the harm caused was trivial, satisfactory restitution was made, a key witness refuses to testify, an informant is being rewarded, the defendant has been granted immunity, a jury is highly unlikely to convict although proba- ble cause exists, and so forth.

Two screening institutions—the grand jury and the preliminary examination—have roots in the common law era. The formal function of each is the same: to decide whether the state can present probable cause to support a prosecution.

It is axiomatic that the prosecutor at the preliminary examination needs to present proofs for each element of the crime. An exception to this rule concerns the charge of open murder, through which the prosecutor does not specify whether the crime is first-degree murder or second-degree murder.25

If the prosecutor cannot establish probable cause, the prosecution must be dismissed. In fact, neither of these institutions screens out very many cases today, although they play other useful functions in the pretrial process. The grand jury (or the “jury of pre- sentment”) is a panel of citizens that dates back to the origin of trial by jury in the thir- teenth century. The preliminary examination, created by statute in the sixteenth century, was designed to secure information of the crime immediately after an arrest.26

The modern preliminary examination culminates with the magistrate either binding over a case for trial or dismissing, depending on whether the prosecutor established probable cause.

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The Grand Jury During the seventeenth century, grand juries in England gained the public’s respect by refus- ing to indict popular political opponents of the Crown. This resistance to British authority made the grand jury popular in the American colonies. Each new American state and the fed- eral government required that criminal prosecutions be initiated by grand jury, and federal grand juries were guaranteed in the Fifth Amendment of the Bill of Rights (1791).

By the mid-nineteenth century, however, over half the states had eliminated the grand jury indictment requirement as costly and cumbersome. With the expansion of the right to vote, it was believed that elected prosecutors would charge defendants fairly by information. A defendant in California argued that his prosecution by information violated his right to a grand jury indictment under the Fifth Amendment. The Supreme Court ruled in Hurtado v. California (1884) that the Bill of Rights did not apply to the states— that is, that it did not “incorporate” this provision. (See Chapter 1.) Further, it ruled that the requirement that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury” is not so fundamental to lib- erty and justice as to be an element of due process under the Fourteenth Amendment. States that dropped the indictment requirement still retain grand juries and allow them to be called by a prosecutor in special cases. These tend to be complex white-collar, orga- nized crime, or government corruption cases where grand jury secrecy and its subpoena powers prove useful. The grand jury therefore continues to play an important role in American criminal justice.

Depending on a state’s law, citizen grand juries number between twelve and twenty- three jurors. They determine by majority vote whether there is probable cause to hold a suspect for trial, issuing either a “true bill” or a “no bill” of indictment. The prosecutor must sign the bill of indictment for it to become the formal charge against the defendant. The grand jury may rely on hearsay evidence in coming to its decision, such as summariza- tions of testimony by government agents rather than the direct testimony of witnesses (Costello v. United States, 1956). As noted in Chapter 2, United States v. Calandra (1974) held that grand jury questions may be based on illegally seized evidence. The Calandra rule makes it considerably easier for prosecutors to gain indictments.

Grand jurors “investigate” crimes mainly by listening to witnesses. In theory, they could issue subpoenas on their own, but they rarely do. The prosecutor presents cases to the grand jury and generally guides its activities. The court is responsible for deciding eviden- tiary questions that may arise during grand jury proceedings. As a citizens’ body, the grand jury is not administratively or legally within any of the three branches of government.

The term of a federal grand jury is eighteen months, with six-month extensions. In practice, federal grand jury service lasts for a month. Then, although the grand jurors no longer meet, the grand jury retains its “legal” existence. This is important because a person who is granted immunity in order to testify before a grand jury, but refuses to do so, can be held in contempt and jailed during the entire life of the grand jury, even if the jury is not actively sitting.

Racial bias in the selection of members of a grand jury results in the automatic rever- sal of the indictment (Ex Parte Virginia, 1880; Cassell v. Texas, 1950). Legal objections to a grand jury’s racial composition ordinarily must be brought before the case goes to trial. If an objection was not possible before the trial began, however, it is still possible for the indictment to be reversed even though the defendant was found guilty by an unbiased petit jury. In Vasquez v. Hillary (1986), the appellant’s conviction occurred twenty-four years before the appeal was filed. Justice Thurgood Marshall, writing for the majority, pointed out that a conviction does not erase all the damage inflicted by a biased grand jury. Even if there was probable cause, the grand jury might have charged the defendant with a lesser crime, or with fewer counts, or on a noncapital rather than a capital charge. “Once having found discrimination in the selection of a grand jury, we simply cannot know that the need

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to indict would have been assessed in the same way by a grand jury properly constituted.” As Justice Harry Blackmun forcefully noted in Rose v. Mitchell (1979):

Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process. The exclu- sion from grand jury service of Negroes, or any group otherwise qualified to serve, impairs the confidence of the public in the administration of justice. As this Court repeatedly has emphasized, such discrimination “not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.”

Grand Jury Functions and Powers Aside from the grand jury’s function as a “shield” to screen cases brought by the prosecu- tor, the grand jury has several powers that make it an effective “sword” to investigate crime. In truth, these powers are used by the prosecutor, with the agreement of the major- ity of the grand jury. These powers include the power to subpoena witnesses and docu- ments, to provide grants of immunity, and to meet in secrecy.

Subpoena. The grand jury has, under the court’s authority, subpoena power to require individuals to testify (subpoena ad testificandum) or to bring papers and evidence (subpoena duces tecum) in an effort to further a criminal investigation. There is a general obligation to obey grand jury subpoenas. In Branzburg v. Hayes (1972), the Supreme Court held that a news reporter does not have a First Amendment privilege to withhold information or to avoid testifying before a grand jury when the reporter promised not to reveal sources who may have been involved in criminal activity. Failure to obey a subpoena can be punished with a contempt-of-court citation. Testimony before the grand jury is under oath, so false or contradictory statements can be used later to impeach the witness or can be used as a basis for a perjury prosecution. Courts may overrule a subpoena if the requested evidence is not relevant to the investigation or if the request for documents is too vague or unreasonable.27

Immunity. A related power is the grant of immunity to witnesses who refuse to tes- tify on Fifth Amendment self-incrimination grounds. (See Chapter 7.) Immunity granted by a state court at a prosecutor’s request also prohibits federal prosecution, and federal immunity prevents state prosecution (Murphy v. Waterfront Commission of New York Harbor, 1964). The scope of immunity may be either narrow or broad. Prosecutors in Counselman v. Hitchcock (1892) granted a limited form of use immunity to grand jury witnesses. This prevents the use and derivative use of testimony in future prosecutions but does not bar future prosecutions of the defendant if evidence is obtained from an indepen- dent source. The Supreme Court held in 1892 that such immunity was not sufficient to pro- tect the witness’s privilege against self-incrimination. In response to Counselman, Congress adopted a transactional immunity statute that provided that a witness required to testify was granted broad immunity “for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence.” The Court began to shift its ground in Murphy v. Waterfront Commission of New York Harbor (1964), leading Congress to again narrow its immunity statute. The Supreme Court upheld the constitutionality of the narrower use immunity in Kastigar v. United States (1972). This narrowing of the priv- ilege against self-incrimination is another indication of the Burger Court’s Crime Control Model approach to criminal justice.

Secrecy. The grand jury meets in secrecy. Lawyers of witnesses and suspects are barred, as is the general public. The Supreme Court gives five reasons for grand jury secrecy:

1. To prevent the escape of indicted suspects.

2. To ensure great freedom of deliberation for grand jurors.

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3. To prevent witness tampering.

4. To encourage the free testimony of witnesses with information about the crime.

5. To protect the identity of an innocent suspect who is exonerated (United States v. Procter & Gamble Co., 1958).

Under the Federal Rules of Criminal Procedure, grand jury information (except for the jury deliberations and vote of specific grand jurors) may be released automatically to other prosecutors or to law enforcement personnel to assist them in their official duties.28

Otherwise, grand jury information may be released only upon a court order, with or with- out a request by the defendant.

Misuse of the Grand Jury and the Calls for Reform Abuses have led to a call for the abolition or reform of the grand jury system, which indeed was abolished in England in 1933 on the grounds that it was a cumbersome institution that did little to protect defendants from improper prosecution. One peren- nial criticism is that the grand jury is not an independent citizens’ body anymore; it has become a rubber stamp for the prosecutor, who values it only for its secrecy and enor- mous powers of compelling testimony. Another criticism is that it has been used to intimidate witnesses.29

The worst abuses in recent history occurred during the Nixon administration (1969–1974), when the Justice Department’s Internal Security Division used federal grand juries to harass and intimidate antiwar activists and peaceful dissidents. Using its national jurisdiction, these prosecutors subpoenaed witnesses on short notice, flew them across the nation to a place they had never been, and grilled them for days to gain information.30

These politically motivated abuses went a long way toward limiting federal prosecutorial authority that in the early twenty-first century is deemed necessary in the campaign to deal with terrorism. The excesses of the past are a reminder that the grand jury’s powers can be used for oppressive purposes.

Abuses led some critics to propose eliminating the grand jury.31 Other critics suggest reforming it. One reform proposal is to allow witnesses’ attorneys to be in the grand jury room during testimony to advise their clients on the legality of questions, but not to allow them to offer substantive challenges. This would be fair and efficient, eliminating the need for delays as witnesses leave the grand jury room to confer with counsel. Today, about fif- teen states allow counsel in their grand jury hearings.32 Another reform proposal allows the “target” of the grand jury investigation to testify voluntarily and to present evidence before the grand jury. Although this makes a grand jury hearing resemble a trial or a preliminary hearing, about ten states now require evidence standards approaching the requirements imposed at trial.33

Some experienced lawyers concede that the federal grand jury is a tool of the pros- ecutor but still oppose these reforms. They argue that the grand jury’s power is not usu- ally abused and that it is an important cog in the government’s investigatory machinery. Without the grand jury, prosecutorial charging followed by preliminary examinations in complex white-collar crime cases could lead to hearings that require weeks of judicial time. Also, questions asked by grand jurors often help the prosecutor to sharpen the focus of the indictment or to decide to terminate further investigation.34 As the move- ment for grand jury abolition has waned, strengthening the grand jury and instituting some procedural reform seems to be the appropriate course for the federal and state governments.

The Preliminary Examination The preliminary examination is a trial-like adversary hearing. It is not guaranteed by the Constitution but is a statutory right in every jurisdiction.35 Under the Federal Rules of Criminal

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Procedure, the preliminary examination must be held within ten days after the initial appear- ance if the defendant is in custody or within twenty days if the defendant has been released.36

The screening function of the preliminary examination overlaps with that of the grand jury. In jurisdictions that initiate prosecutions by a grand jury indictment, the general rule is that once the indictment is handed up, the defendant no longer has a right to a pre- liminary examination. This rule was inserted into the Federal Rules of Criminal Procedure in 1972.37 Defense attorneys have objected to “quick indictments” by prosecutors because the defendants lose access to the other valuable functions of the preliminary examination. The effect of this rule has been to virtually eliminate the preliminary examination in some federal district courts.38 In states where formal charges are brought by information, courts have held that a defendant is entitled to a preliminary hearing even after a grand jury indictment.39 Although this may appear to be needless duplication, it provides an indepen- dent determination of probable cause and acknowledges the existence of important infor- mal functions of the preliminary examination.

A defendant may waive his or her right to a preliminary examination. This is often inadvisable, especially if a defendant waives the examination at the initial hearing before consulting with an attorney. If counsel believes a preliminary examination favors the pros- ecutor, a waiver may be a wise course. For example, defense counsel may want to avoid giving prosecution witnesses an opportunity to become practiced and at ease in the court- room. Prosecutors in many jurisdictions can insist upon a preliminary examination even if the defendant waives it.

Preliminary Examination Procedures A preliminary examination is conducted much like a trial. It is open to the public and held in a courtroom before a magistrate or judge, witnesses may be called and cross-examined, and a transcript is made of the proceedings. The defendant must be present and be repre- sented by an attorney. The preliminary examination is noticeably different than the grand jury, which operates in strict secrecy. Defendants rarely present witnesses at the prelimi- nary examination but tend to probe prosecution witnesses to develop a sense of the strength of the prosecutor’s case.

The goal of the preliminary examination—to determine whether probable cause exists—means that the testimony elicited by the prosecutor is more limited than that presented at trial, where the prosecutor seeks to prove a defendant guilty beyond a reasonable doubt. The magistrate may restrict the scope of the questioning or the cross- examination if, for example, he or she believes that the questioning goes beyond an attempt to undermine probable cause and becomes a quest for discovery.40 Also, in most states, evidence may be admitted in a preliminary examination that is not admissible at the trial.

As with a trial, a preliminary examination must be open to the public. Press Enterprise Co. v. Superior Court (1986) involved a forty-one-day preliminary examination in which the defendant was charged with murdering twelve people by administering a heart drug. The magistrate refused to release the transcript of the hearing to a news organization on the grounds that it would prejudice the defendant’s right to a fair trial. The Supreme Court reversed. The news organization’s First Amendment right guaranteed access to the preliminary examination. Further, “public access plays a significant positive role in the functioning” of the preliminary examination, which is often the only public airing of a crim- inal prosecution. In the absence of a jury, the presence of the public helps prevent corrupt or overzealous prosecution and compliant, biased, or eccentric judges. A magistrate can legally bar the public from a preliminary examination if he or she makes a specific, on-the- record finding that demonstrates that closure is essential to preserve “higher values,” such as the fairness of the trial, and is narrowly tailored to serve that interest.

The preliminary examination is a critical stage of the criminal prosecution under the Sixth Amendment, requiring that a defendant be represented by counsel unless the defendant

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waives this right. Counsel must be provided by the state for indigent defendants. In Coleman v. Alabama (1970), the Supreme Court reasoned that lack of counsel at the preliminary examination would undermine the defendant’s right to a fair trial:

First, the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, retained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for early psychiatric examination or bail. The inability of the indigent accused on his own to realize these advantages of a lawyer’s assistance compels the conclusion that the Alabama preliminary hearing is a “critical stage” of the State’s criminal process at which the accused is ‘as much entitled to such aid [of counsel] . . . as at the trial itself.’ Powell v. Alabama. (Coleman v. Alabama, 1970)

Coleman demonstrated that having counsel at the preliminary examination was as crucial to a defendant’s interests in a fair defense as it was at the actual trial.

The Functions of the Preliminary Examination Aside from its screening purpose, the preliminary examination serves other useful func- tions that are not explicitly recognized by statutes. These have lower legitimacy in the eyes of many judges. The least controversial “covert” function is to preserve testimony in the transcript of the examination. Because witnesses are under oath and subject to cross- examination, the transcripts may be used to impeach the testimony of a witness during trial. The inconsistencies of a witness who testifies differently at the preliminary examina- tion and at trial can be used to discredit him or her.

The transcript of a preliminary examination may be introduced into evidence if a witness is unavailable for trial due to death, disability, or disappearance. This is a rec- ognized hearsay rule exception. In California v. Green (1970), the defendant was charged with furnishing marijuana to Porter, a minor. On the witness stand, Porter became evasive and uncooperative and claimed a lapse of memory when asked about receiving marijuana from Green. The prosecutor then introduced the preliminary hear- ing transcript to prove that Porter had received illegal substances from Green. The Supreme Court upheld this practice. It ruled that the Sixth Amendment Confrontation Clause was not violated by the introduction of testimony made during a prior hearing because the witness had been subject to cross-examination, even if he had not actually been cross-examined. The fact that preliminary examination questioning is not usually as intense as cross-examination at trial does not alter the rule. Although the witness was physically present, he was unavailable for constitutional purposes. The state did its best to question Porter, and when he “clammed up,” nothing in the Confrontation Clause prohibited the state from also relying on his prior testimony to prove its case against Green (California v. Green, 1970).

More controversial is the defense use of the preliminary examination as a discov- ery device to gather information and to assess the strength of the prosecution’s case. This purpose is less important in jurisdictions in which prosecutors fully and promptly share factual information with the defense. On the other hand, prosecutors who keep informa- tion from the defense for tactical reasons (e.g., obtaining a favorable guilty plea despite weak evidence) encourage this covert use of the preliminary examination by opposing counsel. Most judges believe that discovery is subordinate to the primary bind-over function and may limit cross-examination by the defense if it appears to be aimed only at discovering information in the hands of the prosecutor rather than probing the existence of probable cause.

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The preliminary examination plays a role in plea bargaining by clarifying the prose- cutor’s case and by observing whether it is strong or weak. This may expedite a willingness to enter a plea agreement by the party with the weaker hand. If a case does go to trial, the prosecution may benefit by having given witnesses an “audition,” so they become more familiar with the courtroom setting and with their “lines.” They are apt to show less ner- vousness when they testify at trial and will be more believable.

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LAW IN SOCIETY

PROSECUTORIAL MISCONDUCT AND CONVICTING THE INNOCENT

The Prosecutor’s Power, Misconduct, and Ethics

The prosecutor is the most powerful actor in the criminal justice system,41 with virtually unreviewable power to charge crimes or to dismiss arrests and to investigate crimes, especially using the grand jury’s subpoena power. Prosecutors use “hardball” tactics like surprise subpoenas to get parties to testify before a grand jury and subpoe- naing family members to shake information loose about a suspect.42 The Supreme Court has deliberately limited judicial control on these executive branch functions to enable the government to vigorously investigate cases and prosecute crimes. Judicial controls would give defendants with large resources (e.g., white-collar criminals) the abil- ity to tie up prosecutors in preliminary challenges.43

Judicial control over vindictive and selective prosecution, as noted in the chapter, is quite limited. Civil remedies against prosecutorial misconduct are also extremely lim- ited because prosecutors enjoy absolute immunity against civil lawsuits that challenge such core functions as charg- ing, appearing in pretrial hearings, and trying a case, even if the prosecutor unknowingly presented false information (Imbler v. Pachtman, 1976; Burns v. Reed, 1991). Qualified immunity, opening the prosecutor to civil suit, applies only when misconduct occurs in non-core profes- sional activity—that is, appearing at a press conference or swearing to the truth of facts in an affidavit to support a charge (Kalina v. Fletcher, 1997).

The Supreme Court has drawn the line at cases in which prosecutors fabricate evidence or knowingly allow perjured evidence to be used against a defendant. In such cases, the defendant’s right to due process has been vio- lated, and the conviction must be reversed. In Mooney v. Holohan (1935), the Supreme Court noted in dictum that “a deliberate deception of court and jury by the presenta- tion of testimony known to be perjured” would violate the defendant’s due process rights. The Court denied relief on

procedural grounds. This case arose out of the conviction of a well-known labor radical, Tom Mooney, for setting off a bomb during a pro-military parade in San Francisco in 1916 that killed ten people and seriously injured forty. There was strong exonerating evidence, but it was a period of antiradical hysteria, and the prosecutor relied on “eye- witnesses” who were known liars. Mooney was pardoned soon after the Supreme Court’s ruling.44 Other post- Mooney cases have reversed convictions when prosecutors have knowingly elicited materially misleading facts from a witness (Alcorta v. Texas, 1957), knowingly letting a wit- ness lie about being paid or being given a lenient sentence in return for testimony (Napue v. Illinois, 1959), or deliber- ately mischaracterizing innocent evidence to make it appear incriminating (Miller v. Pate, 1967).

Prosecutorial misconduct takes many forms because errors and violations can be made at every stage of the pre- trial and trial process.45 Common forms include appealing to the passions and fears of jurors by inflammatory lan- guage, making innuendos of guilt unsupported by evi- dence, announcing that the defendant or witness took a polygraph test, and the like.46 Even when courts find that a prosecutor violated a rule of legal ethics or due process, a case will not be reversed on appeal if the error was harmless—that is, unless the error caused the verdict.47

This section focuses on examples of misconduct that can lead to the conviction of the innocent.

Given the lack of external controls on prosecutorial misconduct, the adherence to standards of ethics by prose- cutors is profoundly important. In his 1940 address, Robert Jackson stated that “the spirit of fair play and decency . . . should animate the federal prosecutor.” He admonished federal prosecutors “that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice be done.”48 The problem is that such moral exhortations, while followed by many prosecutors, are not binding. If only a few rogue prosecu- tors decide to not play by the rules, they can significantly increase the convictions of innocent people.

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Prosecution Error and Wrongful Conviction

Various studies of wrongful conviction list prosecution misconduct as one of the major causes of sending innocent men and women to prison, including death row.

● The Innocence Project reviewed seventy-four cases of actual innocence established by DNA. Twelve factors causing the wrongful convictions were present in one or more cases. Prosecutorial misconduct was the fourth most common error, appearing in thirty-three (45 percent) of the cases.49

● James Liebman and colleagues found that the overall error rate in capital convictions from 1973 to 1995 was 68 percent (7 percent were completely exonerated) and that of the total cases, “prosecutorial suppression of evi- dence that the defendant is innocent or does not deserve the death penalty” accounted for 16 percent of state post- conviction reversals.50

● C. Ronald Huff and colleagues estimated that of 205 wrongful convictions they identified, nineteen resulted from negligence by criminal justice officials and five from perjury by criminal justice officials.51

● Edwin Borchard, in the first systematic study of sixty- five wrongful convictions in the United States, found that in sixteen cases prosecutorial “fault, carelessness, or overzealousness” was present.52

● The Web site for the Innocence Project finds that the kinds of prosecutorial misconduct connected with cases of falsely convicted people include suppression of excul- patory evidence (37 percent); knowing use of false testi- mony (25 percent); coerced witnesses (11 percent); improper closing arguments (9 percent); false statements to the jury (9 percent); evidence fabrication (5 percent); and other misconduct (4 percent).53

It should be kept in mind that rarely is one kind of error alone the cause of a wrongful conviction. George Castelle and Elizabeth Loftus identify the “cross-contami- nation of evidence: when one piece of misinformation con- taminates other information in a case and ultimately results in the conviction of the innocent.”54 An initial misidentifi- cation by a witness may cause the police to form a rigid idea that the correct suspect has been apprehended, and the initial error may be compounded by a failure of the prosecutor to expose the error. As Professor Brian Forst suggests, however, this is a weak excuse for prosecutors.

Prosecution Policy and the Conviction of Innocents

Forst notes that prosecutors typically measure success by such criteria as conviction rates and success in being reelected. These criteria do not probe the more vital and more difficult-to-measure goals of reducing crime, pursu- ing justice, ensuring evenhandedness, and enhancing the legitimacy of government, although such goals are probably

part of prosecutors’ unarticulated motives in deciding whether to charge a defendant and at which level of severity. Prosecutors rarely consider whether their poli- cies are aimed at reducing the incidence of wrongful convictions. In fact, as Forst indicates, prosecutors are in a very good position to control “errors of justice.”55

Prosecutors can

ferret out errors made by the police by screening arrests more carefully, directing postarrest investigations to resolve conflicting sources of evidence, working more diligently with victims and witnesses to establish, pre- cisely and accurately, pertinent events that preceded and followed the episode in question, and directing the foren- sic processing of key items of physical evidence to resolve ambiguities involving both incriminating and exculpatory evidence.56

The failure of prosecutors to pursue such ends more often exposes systemic flaws in the criminal justice system.

Examples of Egregious Prosecutorial Misconduct

● Erick Jackson was convicted in 1980 for felony murder stemming from the setting of a fire in a Brooklyn, New York, supermarket in which six firefighters were killed. He supposedly confessed to having been paid to set a fire on the roof of the market. But a court, years later, found that the confession was uncorroborated and confused his statements about a different fire with the fatal blaze. After a decade in prison, Jackson won release when an appellate court ruled that the prosecutor deliberately withheld evidence that could have exonerated Jackson at trial. An investigator conducted experiments and con- cluded that the cause of the fire was not arson but faulty wiring. A civil attorney hired to represent the firefight- ers’ widows later disclosed a report of the investigator that showed that in addition to the initial accidental fire, firefighters deliberately set additional fires in the build- ing in order to aid the families of the deceased firefight- ers by increasing the amount of insurance money paid to them. Citing another judge in a recent case, the trial judge who dismissed the case and released Jackson said, “It is truly a scandal which reflects unfavorably on all participants in the criminal justice system.”57

● Under the leadership of Henry Wade from the 1950s to 1986, the Dallas district attorney’s office had a reputation for getting convictions at any cost. In two nationally known cases, it appeared that truth was of no conse- quence. Lenell Geter, an African American electronics engineer, was convicted of a 1982 armed robbery com- mitted in a Dallas suburb. The prosecution relied on “a photo identification by a victim, and ignored testimony from Geter’s co-workers at E-Systems that he had been at work the entire time the robbery was taking place” sixty miles away. Outraged coworkers convinced CBS- TV 60 Minutes to air a segment on this miscarriage of

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justice. That segment “established the guilt of another man and the likelihood that prosecutors knew Geter was innocent.”58

● Another notorious Dallas case was that of Randall Dale Adams, who was sentenced to death in 1977 for the murder of a police officer. His case came to national attention with the release of the 1988 film The Thin Blue Line. The film not only exposed the real killer (in prison for another crime), demonstrated Adams’s complete innocence, and revealed what should have been fatal weaknesses in the evidence against him, but also “sug- gests that the prosecutors knew” Adams did not kill the officer. Even as the case against Adams unraveled in postappeal procedures, the prosecutor’s office resisted releasing him.59

● Dr. Sam Sheppard was convicted of killing his wife in 1956 in a Cleveland trial that took place in a “circus atmosphere” created by the news media, which con- victed Sheppard in the headlines well before the trial. The police conducted a sloppy investigation and broad- cast their evidence to the public. The trial judge utterly failed to control the situation. At the heart of the wrongs in the case, however, was the prosecutorial suppression of evidence contradictory to its case. A defense demand for files and records was ignored. A forensic examina- tion of the crime scene brought out evidence favorable to Sheppard but which the prosecutor ignored. In 1966, the Supreme Court reversed the case (Sheppard v. Maxwell, 1966), and in a retrial with a more vigorous and focused defense counsel, F. Lee Bailey, Sheppard was acquitted on a powerful presentation of forensic evidence.60

● Pulitzer Prize–winning author Edward Humes recounts in detail the rise of Edward Jagels, the law-and-order prosecutor in Bakersfield, California, in the 1980s, based on political “dirty tricks” involving the filching of a confidential file from a court. An exemplar of overly aggressive prosecution, the combative Jagels actually reveled in his frequent chastisement by appel- late courts for misconduct, knowing that it made him popular with the public. With his active assistance, the criminal justice system in Kern County began one of the first of the extravagant and nightmarish witch hunts of the 1980s that rounded up hundreds of innocent peo- ple accused of child molestation. In total, Kern County authorities investigated over ten child-molestation “rings,” investigating over two hundred people, charg- ing eighty-three and convicting forty. Some of the charges involved “over-the-top” allegations of satanic ritual abuse, a widely believed and never proved phe- nomenon in the 1980s. Of these forty convictions, most were overturned and only six remained in prison, three from the only “ring” “in which a majority of the accused appear to be genuinely guilty. . . . Uniquely, all but one were members of the same household, preying upon their own child relatives.” This witch hunt inflicted an enormous amount of human suffering and the disruption of lives.61

● The convictions of Rolando Cruz and Alejandro Hernandez in 1983 for the abduction, rape, and murder of ten-year-old Jeanine Nicarico were so riddled with prosecutorial error that the prosecutors themselves were later charged criminally with misfeasance, a virtually unheard of turn of events. At three trials of Cruz, the DuPage, Illinois, County prosecutors presented evi- dence that Cruz told police about the crime from a dream that he had, although the detectives had no writ- ten report of this account. The police tried to link a boot print found outside Jeanine’s home to Cruz and Hernandez. An evidence technician told the prosecutors that analysis by the Nike shoe company verified that the prints came from a woman’s shoe or from one that was too small for either Cruz or Hernandez. “The prosecutor put the technician on the witness stand and carefully avoided any mention of shoe size or likely gender. In fact, the defense was not told about the Nike analysis.” Even worse, after the first trial, which was overturned on appeal, the real killer, Brian Dugan, a pedophile, came forward and voluntarily confessed to this and other mur- ders to avoid the death penalty. Later DNA tests con- firmed that Dugan was the killer and showed no evidence that Cruz or Hernandez participated in the crime. The prosecutors nevertheless pressed on and obtained a second conviction that was again overturned. At a third trial before a judge, the various lies of police and prosecutors were exposed, and the case was thrown out after twelve years.

This was followed by an astonishing circum- stance. The state assigned a special prosecutor to investi- gate the prosecution. As a result, three prosecutors and four sheriff’s investigators were indicted for perjury and obstruction of justice. Charges against two of the prosecutors were dismissed, and the remaining defen- dants were acquitted. Barry Scheck and colleagues suggest that the reason for the acquittal was the “thin” recollection of grand jurors in the original prosecution of Cruz and Hernandez that there was some testimony about Cruz’s “dream” and the suggestion to the jury that if the investigators and prosecutors were convicted, the county would be sued for astronomical sums.62

Correcting Prosecutorial Misconduct

The prospects for radical change in the way in which pros- ecutors pursue justice are limited. The elective nature of most prosecutors’ offices and the very nature of the adversary system, which relies on the competitiveness of attorneys, will continue to breed attitudes that stress winning. Even prosecutors who understand the emptiness of conviction rates as a measure of success will do little to downplay this, for to do otherwise would leave the prose- cutor vulnerable to electoral defeat. The wider public is not likely to be impressed with internal reforms that allow closer case monitoring. Also, prosecutors who decide to look more closely into the arrests brought to them for

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charging might antagonize police forces, creating inter- agency friction and potential political antagonism.

In many of the exonerations that have become com- mon in recent years, prosecutors often refuse to admit that an error was made. After one such exoneration, a newspa- per reported: “‘I am not saying loud and clear Rudolph Holton is innocent,’ Hillsborough County State Atty. Mark Ober said at a news conference. ‘I am saying we cannot prove his guilt beyond a reasonable doubt.’”63 It is psycho- logically difficult and professionally costly for prosecutors to admit to incompetence or worse. One prosecutor who helped to exonerate defendants in their fifth trial as a wit- ness in a neighboring county was well positioned to com- ment on the prosecutorial mind-set. “‘As a prosecutor, I knew they’d invested too much in [their] theory to start over,’ he said. ‘There’s a mind-set. The theory fits as well as anything; we’re going to stick with it no matter what happens.’”64 It is easier to hide behind the “not proven”

tack than to open up the case and seek the actual culprit. As a result, a double injustice often occurs.

It is highly unlikely, and perhaps unwise, for courts to exercise oversight of the prosecutor’s discretionary pow- ers. Appellate courts have exercised a useful if limited role in reversing convictions. Courts, however, have no author- ity to explore the factual basis of convictions and can only review for legal error. There is no place in the common law system of the United States for a factual review of possibly erroneous verdicts, although commissions to review doubt- ful convictions have been established in Canada and the United Kingdom.65

Prosecutorial misconduct is a real problem that the justice system does not appear to be adequately dealing with at present. It is time for prosecutors to take to heart a judge’s charge to a jury: “The government always wins when justice is done, regardless of whether the verdict be guilty or not guilty.”66

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LAW IN SOCIETY

PROSECUTION IN A TIME OF TERROR —PROSECUTING TERRORISTS

The prosecution of terrorists is an important, proper, and civilized part of the overall strategy of containing the threat of terrorism. Arresting, prosecuting, and meting out long sentences to those who have engaged in acts of terrorism and have provided support for terrorist organizations will incapacitate dangerous enemies of the United States. This was accomplished with the conviction and life sentences of Sheik Omar Abdel Rahman and Ramzi Ahmed Yousef for their roles in the 1993 bombing of the World Trade Center in New York, which killed six and injured hundreds, and the convictions of nine others, including a 240-year sen- tence for Eyad Ismoil, who drove the rental van loaded with the homemade bomb.67 Terrorists have been con- victed for the bombings of American embassies in East Africa, a plot to blow up airlines over the Pacific Ocean, and wider plots to bomb sites in New York City.68

Prosecution may also deter impressionable youths from switching from peaceful religious ways to jihadism.

How successful has the Justice Department been in prosecuting international terrorists? The Transactional Records Access Clearinghouse (TRAC),69 a data research organization connected to Syracuse University, has studied thousands of Justice Department records and has produced a surprising picture of the prosecution of international ter- rorists. For cases involving the prosecution of individuals

that the government has classified as international terror- ists, TRAC has found the following:

● Between 1996 and 2000, the number of prosecutions for international terrorism varied from seven to twenty-nine; in those years, federal prosecutors (U.S. Attorneys or USAs) typically declined to prosecute more cases than they accepted for prosecution, with the percentage declined ranging from 40.9 percent to 80.5 percent.

● The number of prosecutions grew to 57 in 2001 (with 33 cases or 34.5 percent declined) and 355 in 2002 (with 187 or 34.5 percent declined).

● Since 2002, the number of prosecutions has declined (66 in 2003, 93 in 2004, 46 in 2005, and 19 for the first eight months of 2006).

● Since 2002, the percentage of cases that prosecutors declined to prosecute has risen sharply (76.9 percent in 2003, 64.9 percent in 2004, 82.0 percent in 2005, and 90.8 percent in 2006).70

The proportionate increase in declined cases after 2002, compared to the period from 1996 to 2000, suggests that the FBI has been bringing weak cases to the USAs for prosecution since September 11, 2001. The spike in prose- cutions in 2002 may reflect either a bonanza in the capture of al Qaeda and other international terrorists or the intense pressure to “do something” about terrorism in the fired-up political atmosphere after the 9/11 attacks. TRAC supports the latter hypothesis:

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Federal prosecutors by law and custom are authorized to decline cases that are brought to them for prosecution by the investigative agencies. And over the years the prosecu- tors have used this power to weed out matters that for one reason or another they felt should be dropped. For interna- tional terrorism the declination rate has been high, espe- cially in recent years. In fact, timely data show that in the first eight months of FY [fiscal year] 2006 the assistant U.S. Attorneys rejected slightly more than nine out of ten of the referrals. Given the assumption that the investiga- tion of international terrorism must be the single most important target area for the FBI and other agencies, the turn-down rate is hard to understand.71

This analysis of the prosecution data for “interna- tional terrorism” also applies to a larger category of cases that include international terrorism, domestic terrorism, terrorist financing, and “antiterrorism.” The latter category, created after 9/11, includes “United States Attorney Office activity intended to prevent or disrupt potential or actual terrorist threats where the offense conduct is not obviously a federal crime of terrorism.”72 For the larger category, similar patterns of prosecutorial dismissals are seen. Thus, from September 11, 2001, to September 30, 2003, federal agents referred 6,472 cases in the larger category for pros- ecution. TRAC followed the disposition of these cases through May 2006.73 Of those, 1,122 are still pending, and 59 were reclassified as not related to terrorism. Prosecution was declined in 3,140 cases, and prosecutions were filed in 2,151 cases, a decline rate of almost 60 percent of cases resolved at this stage. For the cases in which prosecutions were filed, 381 were pending as of May 2006, and prosecu- tions were completed in 1,770 cases.

Looking at the completed prosecutions, there were 1,329 convictions (75.1 percent), 26 acquittals (1.5 percent), and 415 dismissals of charges (23.4 percent). The sentencing of the 1,329 convictions presents a picture that suggests that most of those convicted were marginal actors, at best. Prison sentences were meted out to 625 of those convicted, 399 received no prison sentence, and 305 were sentenced to time served in jail pending prosecution. Very few of the 625 received “serious” prison time: 327 were sentenced to one day to one year; 231, one to five years; 53, five to twenty years; 14, twenty years to life. What is astounding is that the median sentence of the 625 sentenced to prison was twenty-eight days, and the median sentence of more recent cases was 20 days. In comparison, the median sentence was forty-one months for cases “started in the two-year period before the 9/11 attack.”74

The conclusion is unmistakable: Law enforcement agen- cies, under enormous political pressure, have been bring- ing many questionable cases forward for prosecution, and federal prosecutors, while screening out a large number, are nevertheless prosecuting cases that in less-panicked times would have been dismissed.

In an interview following the release of the TRAC Report, David Burnham, TRAC codirector, stated, “It is clear that the prosecutors are deciding that a lot of the investigations being recommended do not cut the mustard and do not meet their standards.”75 A Justice Department spokesperson disagreed, saying that the TRAC study “ignores the reality of how the war on terrorism is prose- cuted in federal courts across the country and the value of early disruption of potential terrorist acts by proactive prosecution.”76 Unfortunately, it seems that at the present time the Justice Department is waging a propaganda war to bolster its mixed record:

On June 22, [2006,] the Justice Department issued a 67 page “Counterterrorism White Paper.” The paper out- lined what it called “the impressive success of the Department of Justice in the war on terrorism.” This claim was largely supported by a selective list of 55 convicted individuals who, according to the Criminal Division, “rep- resent enforcement efforts impacting not only al-Qaeda, but 18 designated foreign terrorist organizations and other terrorist groups and entities.”

The White Paper did not include a great deal of important information that emerges from the [Executive Office for United States Attorneys] data that is required to judge the performance of the government in this very important area.77

In short, the White Paper omitted the year-by-year enforce- ment trends that show, along with the prosecution of dan- gerous terrorists and terrorist supporters, cases that are close to laughable.

For example, in June 2006, the FBI infiltrated a group of seven hapless Miami “outsiders” who, although saying they wanted to bomb the Sears Tower in Chicago, had absolutely no ties to any known terrorist organization and were not able on their own to take even the first steps toward effectuating a plot. Nevertheless, their arrest was announced in a joint news conference in Miami and Washington by Attorney General Alberto Gonzales, who compared the men with conspirators involved in the 2005 London bombings and the 2004 Madrid train attack. Most accounts saw this group as pathetic, and Marc S. Sageman, a former Central Intelligence Agency officer and a consul- tant on terrorism, said the case “is nonsense.” Nevertheless, the arrests were splashed across tabloid headlines, cheered on by the public, and touted by Vice President Dick Cheney in a political tour.78

In light of the ability of isolated groups motivated by the wrong kinds of ideologies to actually bring off acts of terrorism, law enforcement groups are absolutely correct to investigate all such leads. But when the chief prosecutor of the United States takes to the national airwaves to hail as victory an indictment against a hapless group of al Qaeda “wannabes,” there is the unnerving possibility that the seri- ous business of terrorism prosecution has been politicized.

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SUMMARY

The pretrial process contains numerous steps, involves important constitutional rights, and adds substantial com- plexity and due process to the prosecution of crimes. The trade-off for this complexity is that cases are thoroughly screened so that, ideally, only those that are based on solid evidence and are deserving of prosecution go forward to trial. Consequently, the government is able to give more formal attention to serious and important cases.

The important processes that occur before trial include initial appearance, bail hearings, prosecutorial charging, discovery, plea negotiations, grand jury and/or preliminary hearings, and pretrial motion hearings. The decisions rendered at each of these stages can influence prosecutorial discretion to bring a case forward or to forgo further criminal prosecution.

Pretrial release, or bail, is a critical pretrial process. Stack v. Boyle (1951) held that defendants are entitled to “reasonable” bail that is not out of line with current prac- tices. Disparity in who gets released has led some jurisdic- tions to develop such reform programs as release on recognizance for indigents who are good risks, and court- run deposit bond systems designed to lower the cost of bonds and eliminate the need for bail bondsmen. At the same time, the federal government passed a preventive detention statute under which suspects may be held without bail prior to trial if they are considered to be a danger to society. In United States v. Salerno (1987), the Supreme Court upheld the legality of such measures if there are hear- ings and proper procedural guidelines to maintain the due process rights of persons held without bail on the prediction that they may commit crimes while on pretrial release.

Prosecutors have great discretion in bringing crimi- nal charges. As a general rule, courts cannot dismiss

charges that they think are unwise, but they can dismiss where there is selective or vindictive prosecution. Selective prosecution occurs when a defendant is prosecuted on impermissible grounds, such as race, religion, or political beliefs or for exercising constitutional rights, where the prosecutor’s intent is discriminatory. For a dismissal on grounds of vindictive prosecution, discriminatory intent need not be proven. It occurs when more serious charges are preferred against a defendant who exercised his or her constitutional rights.

The grand jury is a citizens’ institution originated in the common law. It meets in secret to investigate charges and to decide whether to indict suspects. It may issue sub- poenas to compel witnesses to testify or to supply evi- dence, and it may request immunity for witnesses who plead the privilege against self-incrimination. Grand juries are criticized for meeting in secret and for being the prose- cutor’s rubber stamp. The federal constitutional guarantee of prosecution only on indictment by grand jury is not applicable to the states. Proposals for the reform of grand jury procedures include allowing counsel to attend and advise witnesses and allowing the target of the investiga- tion to attend and voluntarily address the grand jury.

The preliminary examination consists of the presen- tation of prosecution witnesses before a lower court judge to determine if probable cause exists to bind the defendant over for trial. Preliminary hearings are open to the public, prosecution witnesses can be cross-examined, and defen- dants have a right to counsel. The preliminary hearing pre- serves testimony for trial if a witness should become unavailable and may be a way for the defense to discover the strengths and weaknesses of the prosecutor’s case as well as obtain factual information.

LEGAL PUZZLES

HOW HAVE COURTS DECIDED THESE CASES?

Excessive Bail

10–1. Under Massachusetts law, the purpose of setting bail is to “reasonably assure the appearance of the person before the court” and to ensure that the person “will not endanger the safety of any other person or the community.” State troopers lawfully entered an apartment to arrest Querubin and another. They fled. The police found twenty- two kilograms of 79 percent pure cocaine in the apartment;

it had a street value of approximately $2.2 million. Querubin was indicted and captured by border patrol agents at Las Cruces, New Mexico, as he attempted to flee into Mexico. At a bail hearing, Querubin argued the weaknesses in the Commonwealth’s case, the lack of any connection between him and the apartment, his lack of a criminal record, and his claimed right to political asylum (his brother had been granted political asylum). The judge ordered that Querubin be detained without bail pending trial.

Was the denial of bail excessive?

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HELD. No. There is no absolute right to bail; it can be denied in capital cases. The bail statute is not vague: It codi- fies the well-known factors to be considered by a judge exercising inherent common law authority to grant or deny bail. “The essential purpose of bail is to secure the presence of a defendant at trial to ensure that, if the defendant is guilty, justice will be served.” Further, the “ability to secure a defendant’s presence at trial is of fundamental importance to the basic functioning of the judiciary, without which justice cannot be properly administered. . . . A judge in the Superior Court has the inherent authority to deny a defendant’s motion for admittance to bail where bail will not reasonably assure the defendant’s appearance before the court.” Deciding whether to withhold bail involves “determinations of fact and the exercise of sound, practical judgment and common sense.” In most cases the facts to be determined at a bail hearing are “undisputed, a matter of public record, [and] readily explained” and involve “the application of factors . . . that are familiar, straightforward, and relatively simple.” There was no abuse of discretion by the judge in this case.

Querubin v. Commonwealth, 440 Mass. 108, 795 N.E.2d 534 (2003)

Preventive Detention

10–2. Dustin Leroy Ingle entered a plea of guilty to the offense of being a felon in possession of a firearm, a fed- eral crime. Ingle had previously been convicted of an Oklahoma felony offense of unlawful possession of a con- trolled drug. After his initial appearance before a federal magistrate judge on the weapons charge, he was released on an unsecured $10,000 bond under the supervision of the U.S. Probation Office. After he pleaded guilty without a plea agreement, the district court ordered that Ingle be “detained immediately” without bail pending sentencing, finding that being a felon in possession of a firearm is a violent crime for purposes of the preventive detention law.

Is the federal crime of being a felon in possession of a weapon a violent crime for purposes of the preventive detention sections of the 1984 Bail Reform Act, requiring denial of bail after a plea?

Holding available from instructor.

Selective Prosecution

10–3. Jamie Mueller was charged with being a minor in a tavern, a misdemeanor. At her initial hearing, she was found to be indigent and was appointed a public defender. A few days later, the prosecutor offered to allow Jamie to participate in the prosecutor’s pretrial diversion program. She accepted, admitted guilt, agreed to commit no crime during the next two years, agreed to attend a behavior- modification class, and agreed to pay an $80 class fee and

a $150 user fee, for a total of $230. Although Jamie ini- tially believed that she could pay the fees, she eventually found that she was unable to pay. The prosecutor sought to withdraw the pretrial diversion agreement on the basis of her inability to pay the fees. Jamie asked the trial judge to reinstate her in the program.

The judge agreed that Jamie had believed that she could pay the fees initially. The prosecutor’s practice and policy was to deny defendants unable to pay the fees entry into the pretrial diversion program and to remove them if they later found that they could not pay. The judge found that paying the fees as a condition of participation was a rational requirement and did not violate the U.S. Constitution. Indiana law authorized prosecutors to with- hold prosecution of misdemeanor charges for those who agreed to enter pretrial diversion programs; the statute authorized but did not require participants to pay fees.

Was the removal of Jamie Mueller from the pretrial diversion program because of her inability to pay selective prosecution in violation of the Due Process Clause?

Holding available from instructor.

Prosecutorial Misconduct and Immunity

10–4. During a fight outside a bar, David Genzler stabbed Dustin Harless. When Genzler heard on the news that Harless had died, he turned himself in to the police. His second-degree murder conviction was overturned, and at a second trial, Genzler was found guilty of involuntary manslaughter and was sentenced to six years. Upon release, Genzler filed a Section 1983 suit against Deputy District Attorney Peter Longanbach and investigator Jeffrey O’Brien for suborning perjury. Genzler alleged that Longanbach and O’Brien convinced Sky Blue Flanders, Harless’s fiancée, “that in order to secure a conviction she needed to lie about what she saw on the night of the inci- dent and about Mr. Harless’ violent past.”

A meeting between Flanders, Longanbach, and O’Brien took place after a criminal complaint had been filed against Genzler but weeks before the preliminary hearing for the first trial. The notes of the interview, along with others conducted by Longanbach and O’Brien, record only a narrative of what Flanders reportedly said at the meeting about investigation and interviews made on the day of and the day after the stabbing.

Was the interview by O’Brien and Longanbach an investigative function that was entitled to qualified immu- nity or an action intimately associated with the judicial phase of the criminal process and so entitled to absolute immunity? Was District Attorney Longanbach protected by absolute immunity from lawsuits for his interview with Flanders?

Holding available from instructor.

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