Supreme Court Justice and legendary Nuremberg prosecutor Robert Jackson once said, “The prosecutor has more control over life, liberty and reputation than any other person in America … 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.”
As someone who has spent nearly 26 years as a prosecutor and having been the elected district attorney for Erie County since 2009, I have learned there are limits to the awesome power possessed by prosecutors.
Sadly and to my deep personal frustration, there are tragic episodes, often of profoundly devastating dimension, that my office, despite its power, remains unable to rectify. That is because prosecutors are empowered to contend with only a narrow scope of society’s ills, wrongs and tragedies. We come to realize that we may not use the power to prosecute for everything that offends, angers or saddens. Instead, we may use the power to prosecute only when we can prove someone committed a crime.
A “crime” is shorthand for a statutorily defined criminal offense. Criminal statutes are divided into elements of proof. Under New York law, a case can be prosecuted only when it is both legally sufficient (all of the statute’s required elements are satisfied) and factually sufficient (with credible evidence that’s admissible in court).
For example, when a statute, like driving while intoxicated, requires proof the defendant was driving and proof the defendant was intoxicated, the prosecution must prove both elements. Circumstantial evidence proving the suspect was driving accompanied by only suspicion that the suspect might have been intoxicated makes the case legally and factually insufficient and bars a prosecution.
Despicable behavior that offends us may be the basis for a legal action in a civil courtroom. One cannot, however, be criminally prosecuted in a criminal courtroom unless the district attorney can prove a crime was committed and can also prove the accused committed it.
On top of this, the prosecutor must act according to prescribed rules ensuring that the cherished rights of all citizens, including those suspected of committing crimes, are scrupulously honored. These rights include one’s right to remain silent, one’s right to an attorney, the presumption of innocence and the requirement that guilt must be proven beyond a reasonable doubt. These rights are for our protection and are afforded to all, including the wicked and the cowardly.
A suspect’s refusal to be interrogated or wish to “lawyer up” might aggravate investigators and prosecutors, but that does not trump the need for solid proof and cannot form the basis of a just prosecution.
Deep suspicion or a strong opinion, especially when based upon speculation or fueled by contempt for the suspect, must not be confused with proof and cannot form the basis of a just prosecution.
Gut feeling, no matter how genuinely or passionately held, can never substitute for proof and cannot form the basis of a just prosecution.
Perhaps most importantly, a desire to extract a pound of flesh cannot serve as the basis for a just prosecution in a civilized society and an indictment cannot be premised upon a yearning to make someone run a gauntlet of public humiliation.
When I sign an indictment – and I sign lots of them – it is a solemn representation to the court and to the public that I can prove each and every element of each and every crime alleged in the indictment. My office rarely offers a plea bargain after a defendant is indicted. Indeed, the vast majority of our indicted cases result in a trial (and usually a conviction) or a plea of guilty to the highest count of the indictment, and not a plea to a lesser charge.
A prosecution based upon one’s outrage over a horrible tragedy or disdain for a suspect can lead even the most well-intentioned police officer, prosecutor or juror down a very dangerous path, including the prosecution of an innocent person. Our Founding Fathers, having learned the lessons of the Salem witch trials, preferred a system that occasionally let the guilty go free lest the innocent be wrongfully convicted, and not the other way around.
I am not advocating for a system that routinely permits the guilty to escape justice. Our Constitution and laws, however, require sufficient proof a crime was committed and sufficient proof the suspect committed it before she can be prosecuted. Adherence to a proof-based prosecution standard might sometimes make us feel frustration and anger, but it remains the best way to consistently achieve just convictions, prevent the injustice of wrongful convictions and safeguard the integrity of the criminal justice system.
Frank A. Sedita III is Erie County district attorney.