The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, at whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. (1)
I. THE PROBLEM
The capacity to do great good is accompanied by a corresponding capacity to do great evil. Each virtue may be said to have a dark side--love and hate, trust and deceit, freedom and slavery, self-rule and tyranny. The latter of each of these pairs is like an evil twin, closely related, but ultimately the opposite or the perversion of the good. Robert Jackson's description of the good and evil uses of the power lodged in a prosecutor is as contemporary as the morning headlines. This Article will focus on the dark side of criminal prosecution and what, if anything, can be done about it.
Before turning to the dark side, however, the first part of Jackson's proposition must be acknowledged and embraced. The prosecutor at his or her best is indeed one of the most beneficent forces in our society. Whether it is the prosecution of small-time crooks or large-scale swindlers, (2) the conviction of murderers, (3) serial killers (4) or terrorists, (5) or the rooting out of corruption, both small and large, (6) the prosecutor's diligence helps to ensure that no one is above the law. No diagnosis of the problem, nor prescription for cure, can ignore the indispensible role played by the prosecutor. It would be foolish to view the problem of the rogue prosecutor in isolation. Any diagnosis and prescription must take care not to jeopardize the independence and courage of the prosecutor who does the right thing. The problem of the rogue prosecutor, however, is not so uncommon as to be insignificant. Power brings the possibility of its abuse. This can be illustrated by looking at two cases, the first of which is the Duke Lacrosse case. (7)
A. THE DUKE LACROSSE CASE
This was a case that, from the outset, had plenty of blame to go around. Members of the lacrosse team planned a party that turned into a "perfect storm." An exotic dancer told authorities that she had been raped at the house where the party was held and this set things in motion. Although it later became clear that no rape had taken place, the story took on a momentum of its own through the assistance of a nurse trainee with an agenda, a policeman who intensely disliked Duke students, a rogue prosecutor who seized on the case in order to bolster his chances for election, an academic community (with certain notable exceptions) that rushed to judgment to satisfy their own political views, and an eager media with preconceived scenarios that assumed guilt from the outset.
The storm that eventually led to a catastrophic breakdown of the criminal justice system began with a familiar occurrence--a gathering of college students for a house party near campus. This party was organized by a few members of the nationally ranked Duke lacrosse team, which was back on campus during spring break in order to practice for several important upcoming games. …