Focusing Power in the Local DA

Terry H. Schwadron

July 12, 2021

We’re seeing more and more power being centralized in the push and tug that is modern justice in that initial decision by local prosecutors.

Prosecutors are the ones making those essential decisions of whether to file a criminal charge at all, of setting legal strategies that define what crimes have occurred, even in seeking bails that may be set high to keep those charged in jail to wait an increasingly long time for trial.

In a compelling Washington Post op-ed, University of Virginia Law Prof. Ann Coughlin used the Bill Cosby case to argues “we don’t have a rule of law. We have rule by prosecutor.”

As we know, the Cosby conviction for sexual assault was thrown out last week by the Pennsylvania Supreme Court, and barred from mistrial, because, the court ruled, that an earlier decision and promise by a local prosecutor not to charge Cosby made his eventual re-thought conviction unlawful.

Details of the Cosby case aside, we find ourselves fixated after each police-involved racial death now waiting for a ruling from the local — and federal — prosecutors not over the presumed guilt or innocence of those involved, but over whether there will even be a grand jury called to look at the situation.

As Donald Trump is telling us daily, it has solely been the decision of local prosecutors in New York State to decide that tax manipulation by The Trump Organization constitute crimes by Trump’s business and associates, and maybe eventually against him personally. Naturally, Trump automatically sees these determinations as politically biased because they are aimed at him not at the actions under review.

It is a cynical view of the process, but what prosecutors decide is crime ends up being defined as the targeted crime, regardless of the circumstances and community circumstances. The question is why these decisions often feel so arbitrary to the rest of us.

While communities of color held their breath over crimes arising from the death of an unarmed George Floyd at the hands of Minneapolis police, the Minneapolis attorney general, Keith Ellison, took the case out of the hands of the county district attorney to handle it himself. And even then, there were questions about the type of charges that might emerge — long before there was a verdict in the eventual case.

The answer, of course, is that prosecutors are not pursuing justice as we understand it, but whether they can win their cases.

A Bad Promise

As it turned out, the 2005 promise by former prosecutor Bruce Castor, a local District Attorney in Pennsylvania, not to charge Cosby for raping Ann Constand, a former lover whom Cosby had doped, proved critical to his later actual criminal charges.

Castor made the judgment that “Cosby was not getting prosecuted at all ever.” As Professor Coughlin outlines, prosecutor Coughlin never met with or consulted with the accuser before deciding that her rapist “would not be prosecuted no matter what.” When Castor issued a news release stating that he would not take Cosby to trial, he did so with the intent to act “as the sovereign Commonwealth of Pennsylvania” and with the belief that he had the power “to remove ‘for all time’ the possibility of prosecution.”

Castor has explained that he made the promise to help Constand win her civil suit against Cosby.Prosecutor Castor said that he was troubled that, after the alleged assault, she remained in contact with Cosby and that he figured that a jury might think that the victim was just trying to get Cosby to pay her. “In short, Castor invoked a whole array of false and sexist stereotypes to conclude that a jury would not believe Constand’s word about the crime,” said this analysis.

If Cosby faced no criminal liability for the rape, the prosecutor claims he reasoned, Cosby could not invoke his Fifth Amendment privilege to avoid being deposed in the civil case. In the court’s view, Cosby relied on that promise when he testified at his civil deposition in 2005 and 2006. This made it unfair — indeed, a denial of Cosby’s right to due process of law — for subsequent prosecutors to use his deposition when their office ultimately decided to try him for sexual assault after all.

Nevertheless, it was difficult to hear that after all the fuss kicked up over finally bringing Cosby to face accusers in court that the judgment was out as the result of a “fairness” call, not over whether he actually committed what even the court regarded as a crime.

The decision did not eliminate the crime, but somehow left people of all political stripes wondering where’s the justice here.

Not a Technicality

It’s not a “technicality,” but it surely should make prosecutors think twice about whether they are damning future criminal trials with an early ruling against bringing charges.

“As tempting as it is to single out Castor, he is not solely responsible for a system that unabashedly gives men like him unfettered discretion to choose who should go to prison and who should not. There is a fundamental irony here: The court reversed a conviction on prosecutorial-misconduct grounds, but it did so in a way that reinforces — rather than checks — prosecutorial control over criminal cases,” argued Professor Coughlin.

By allowing prosecutors the widest discretion in whether to bring charges at all or on what charges, we are encouraging a system based on negotiated plea bargains. Study after study suggest that corelates with poorer outcomes for people of color and those who cannot afford the best legal defense lawyers to negotiate for them. We all know public defenders are overwhelmed and pushed to settle cases.

Usually, of course, prosecutors are quick to speak up about victims rights in their cases rather than the need to protect the alleged perpetrators. But in this Cosby case, that hasn’t been the case and in the vast majority of police abuse cases, that hasn’t been the case.

In an oft-quoted 1940 speech, then Atty. Gen. Robert Jackson asserted that our criminal justice system can be fair, even though it gives prosecutors “more control over life, liberty, and reputation than any other person in America.”

Jackson spoke bluntly about the dangers posed by the “immense power” our prosecutors wield.
“The Cosby debacle reveals some of the dire and all-too-real shortcomings in that vision, by exposing one form of damage inflicted by a system that vests unfettered discretion in one man when that man turns out to be both hubristic and sexist,” an outlook supported by the Supreme Court decision in Cosby.

It all makes one wonder where the justice went. There has got to be a better way, including to be willing to lose some cases.

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