As reported in the New York Times in an article by Benjamin Weiser titled Should Prosecutors Chastise Those They Don’t Charge?, a recent announcement by New York prosecutors that they would not be indicting Mayor Bill DeBlasio leads to an interesting debate.
Prosecutors have become more willing to speak publicly about their decision not to file charges in high-profile cases. Not surprisingly, some object.
Effective January 1, 2017, New Jersey began implementing its newly revised bail system (P.L. 2014, Ch. 31 known as the “Bail Reform Law”). As judges do under the Federal Bail Reform Act, New Jersey judges will now focus on whether an accused presents a significant flight risk, is threat to public safety, or both when deciding whether to detain the accused while awaiting trial.
A study by the Drug Policy Alliance in New Jersey, released in 2013, found that 39 percent of inmates were eligible to be released on bail, but that many could not meet amounts as low as $2,500.
The new system, of course, is not without controversy. While striving to achieve fairness and alleviate the overloaded system, many (particularly those in the bail bond business) rally against it stating that dangerous offenders are released out on the streets. But “judicial officials reject the idea that dangerous criminals are flooding communities.”
- Lisa W. Foderaro, New Jersey Alters Its Bail System and Upends Legal Landscape, New York Times (Feb. 6, 2017).
- Stuart Rabner, Chief Justice: Bail Reform Puts N.J. at the Forefront of Fairness, New Jersey Opinion (Jan. 9, 2017).
- Attorney General Issues Directive to Guide Prosecutors and Police in Implementing Historic Bail Reform that Will Keep Dangerous Criminals in Jail and Eliminate Unfair Monetary-Based Bail System, Office of the Attorney General (Oct. 13, 2016).
- Attorney General Law Enforcement Directive No. 2016-6 (Oct. 11, 2016).
- Criminal Justice Policy Program at Harvard Law School, Moving Beyond Money: A Primer on Bail Reform (Oct. 2016).
POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.
The lead editorial in the New York Times of June 6, 2016 addresses an important issue: the all-too-frequent failure or resistance of prosecutors to comply with their constitutional obligation to produce to the defense evidence in their possession that is potentially exculpatory or mitigating for a defendant. To address this issue, the editorial suggests that the United States Department of Justice should monitor the practices of district attorneys’ offices in which such problems have arisen in the past.
This proposal may have merit, but it contains at least one troubling issue indicated in the editorial’s title: “To Stop Bad Prosecutors, Call the Feds.” This title and the editorial’s text suggest that the problem at issue is entirely or primarily the fault of local district attorneys’ offices and that such problems are absent or de minimis in the offices of federal prosecutors.
The editorial’s concern for fairness to individuals facing state criminal charges is to be applauded, but its proposal raises questions regarding federal prosecutors, who themselves are members of the Department of Justice, the department that would conduct the oversight. Will federal overseers, eager to advance their careers, monitor prosecutors in their own department as carefully as they review prosecutors in state offices? Will the Department’s oversight mandate be limited to local district attorneys’ offices? If so, will this foster an idea that federal prosecutors are exempt from scrutiny regarding their compliance with Brady v. Maryland?
In considering the editorial’s proposal, it is perhaps worth remembering an old question asked by the Roman poet Juvenal: Quis custodiet ipsos custodes? Who will guard the guardians?
We all think and say it: images are worth a thousand words. The same is true when prosecuting a case. Prof. Bennett L. Gershman of Pace Law School, in his latest HuffPost piece titled Prosecutorial Misconduct Using Courtroom Technology, challenges the way some prosecutors put on their cases when using technology. He suggests that many increasingly cross the line when they use technology to suggest that “‘beyond reasonable doubt’ is really not that demanding” of a standard, when they use “visual trickery” to awaken an angry and emotional reaction out of jury, or when they sway juries by showing “misleading and prejudicial images” during their closing arguments.
Prof. Gershman states that
[a]lthough there’s nothing inherently wrong with using technology in the courtroom, more and more prosecutors cross the line by exploiting the power of technology to skew the way juries analyze the evidence, and thereby prejudice a defendant’s right to a fair trial.
Check it out and share your thoughts.
In his newest op-ed New Commission to Regulate Prosecutorial Misconduct, Prof. Bennett Gershman of Pace Law School introduces the nation’s first public commission, proposed in New York State, that is designed to investigate complaints of misconduct by prosecutors and impose discipline upon prosecutors who violate the rules.
Prof. Gershman recaps some of the most egregious recent instances of prosecutorial misconduct and points out that prosecutors are rarely disciplined for their misconduct. He points out that misconduct by prosecutors is costly because it leads to wasting money on re-litigating the same case over and over, it diminishes public confidence in the criminal justice system when prosecutors are not held accountable for their misconduct, and it imposes unimaginable pain and suffering on the innocent and their families. Prof. Gershman then concludes that
a commission that is independent from the legal profession, and independent from the prosecutor’s office, will be able to conduct investigations in a nonpartisian, non-political, and objective manner.
Read the full Bennett L. Gershman, New Commission to Regulate Prosecutorial Misconduct, HuffPost Crime (May 20, 2014).