Legal Brief: The Power of the Prosecutor

by JOAN KORB, [email protected]

Along with calls for police reform have come calls for curtailing the power of prosecutors, often acknowledged as the most powerful party in the criminal justice system. 

District attorneys, who are constitutional officers elected to serve four-year terms, have mostly unfettered discretion in deciding whom to charge, what to charge and when to plea-bargain or dismiss charges.

I’ve spent more than 37 years as a prosecutor. During that time, I have encountered the best our profession has to offer and, unfortunately, the worst. Those latter include at least one person who was convicted of federal crimes for behavior taken while in office. Another was forced from office for sexting a domestic-abuse victim; another was a chronic sexual harasser of staff; and a handful of others have engaged in unethical and sometimes illegal conduct. 

All are no longer prosecutors, but that is not to say that all bad prosecutors are weeded out quickly. Sometimes it takes years to purge an office of a wrongdoer.

In Wisconsin, the district attorney of each county is elected in a generally partisan race. The only requirements are that the person who is elected, upon taking office, is a resident and an attorney licensed in Wisconsin. There is no requirement for the person to have any prosecutorial experience or to have practiced criminal law prior to becoming the district attorney. 

Although the Wisconsin Supreme Court rules and the American Bar Association standards give guidance to prosecutors regarding their ethical duties, not all prosecutors are familiar with those rules and standards, which require that prosecutors file criminal charges only when there is probable cause to believe a crime has been committed, when the admissible evidence will be sufficient to support a conviction beyond a reasonable doubt and when prosecution is in the interest of justice. This means that a prosecutor may not file or maintain charges if they believe the defendant is innocent or they cannot prove the charge, no matter what the evidence appears to show. 

Prosecutors should not consider partisan or other improper political or personal considerations. This is an area that has brought down many a prosecutor. American Bar Association Standard 3-1.7, Conflicts of Interest, urges prosecutors to know and abide by the ethical rules regarding conflicts of interests and to recuse themselves when a conflict exists. Prosecutors should also be aware of an appearance of a conflict, which could result in the public losing confidence in the fairness of a given prosecution.

Prosecutors are warned that they should not allow their professional judgment or decisions to be influenced by interests or relationships, whether personal or political. This includes not allowing interests in personal advancement or aggrandizement to affect judgments regarding the best interests of justice in any case.

This can be a difficult line to straddle, especially in sensational cases with heavy media coverage. Many prosecutors have seen these cases as a springboard to higher office and have allowed their judgment to be distorted, looking to enhance their political or economic interest over the interest of justice. 

Because district attorneys are elected on a mostly partisan basis, it is important that the voters of each county know what kind of prosecutor they have. It is becoming more difficult to hold prosecutors accountable as local media outlets, increasingly, no longer have reporters on staff to cover courts and law enforcement. We don’t hear about unethical conduct until it becomes egregious, salacious or sensational – and then the governor has the authority to remove a district attorney from office for cause. 

To guard against unethical or inappropriate decisions, every prosecutor’s office should have written policies and procedures so that all attorneys in that office know what is expected of them, including proper charging procedures, proper plea negotiations and how to conduct themselves in the performance of their duties.

Prosecutors have a unique and powerful role to fulfill in the criminal justice system, and they cannot be effective without trained and ethical law enforcement and a fair and independent judiciary. If the prosecutor is the most powerful partner in the criminal justice system, s/he must also be the most ethical and responsible, or justice cannot prevail. Integrity requires that in the exercise of discretion, the prosecutor asks, “Are you more concerned with fairness, a conviction or politics?” There is only one correct answer.

Like many positions of public trust, prosecutors wield great power, and that power can be very destructive if improperly used. An informed electorate is the shield against abuse in public office, and local media are a powerful tool in informing the public about their elected officials. 

Joan Korb of Egg Harbor is a former Door County district attorney and assistant district attorney.