Thursday, Jul. 26, 2007
Her beef is not so much with prosecutors breaking the rules, although plenty do. In 2003 the nonpartisan Center for Public Integrity found that prosecutorial misconduct led to charges being dismissed, convictions reversed or sentences reduced in more than 2,000 cases since 1970. Davis' greater worry is all the behavior considered within bounds but outside any reasonable notion of fair play. She points to a case's early stages to show the power prosecutors have for abuse--and how she would fix the system:
When prosecutors pick which criminal charges to file, they need have only probable cause, or reasonable belief that the suspect committed the crimes charged. This low standard creates room to pile on the most severe charges possible to bully a defendant into a plea bargain. If a case ends up going before a jury, the prosecutor would have to prove his case beyond a reasonable doubt. So why give him the chance, Davis argues, to "intimidate, harass or coerce a guilty plea" with charges he knows he cannot prove at trial? Davis would bump the probable-cause standard to something requiring more certainty.
The Grand Jury.
The Constitution requires a grand jury to indict a suspect before he can be tried for a federal felony, and about half the states have a similar setup. This panel of ordinary people is supposed to check the prosecutor's power by making him present a preliminary case in a kind of minitrial, though one without a defense attorney. But because the prosecutor gets to decide which witnesses to call and which questions to ask, Davis wants to make the process less one-sided by requiring prosecutors to tell jurors about evidence that helps the suspect.
The vast majority of defendants cut deals because fighting charges at trial can result in much longer sentences. Prosecutors and public defenders like to settle cases too, given their massive caseloads. But prosecutors generally hold all the cards: in a case's early stages, a defendant rarely knows how strong the evidence is against him. And the mandatory minimum sentences for many crimes give prosecutors a clearly defined punishment to hold over a defendant's head. That is the reason Davis wants to make prosecutors open their files before offering a deal. "Their job, after all, is not to win but to see that justice is done," she says.
As Davis advocates putting these new rules in legal-ethics codes enforced by state bars, prosecutors argue that such changes would tie their hands unnecessarily. But some prosecutors are at least willing to open themselves to scrutiny. In places like Milwaukee, San Diego and Charlotte, N.C., they are letting the nonprofit Vera Institute of Justice examine their charging decisions and plea-bargain offers for discrepancies in how black and white suspects are treated. The three-year study will go through 2008, and these offices have promised to use the results to make their practices fairer. It's a significant start and one Davis hopes will prod other prosecutors to move in the same direction. But if it doesn't, there's still the power of fear. After all, she says, "nobody wants to be the next Mike Nifong."
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