Reply To: A case of unchecked prosecutorial abuse


I hope no one is surprised by the DA’s tactics. The problem is that the courts virtually never exercise their supervisory authority over the federal and state executive branches. This is primarily due to the system of plea bargaining. In the federal system, for instance, criminal pleas resolve 97.1% of cases. This figure is a few years old, and is certainly higher today.

This means that the courts will almost never see how “the sausage is made.” With this de facto prosecutorial immunity, it is no surprise that they regularly operate in the ethical grey area, and frequently in the black. A federal prosecutor must hit 97.1% just to be average. They have tremendous pressure to keep their productivity figures high. Their careers depend on it.

In the rare cases in which a defendant is willing to risk trial, and the inevitable draconian punishment, the courts usually defer to the “separation of powers” doctrine rather than to the “balance of powers.” A black robe does not necessarily confer judicial courage. A magistrate aspires to a judgeship. Lower court judges aspire to appellate courts. Many appellate judges believe they are the best qualified for the high courts. The unfortunate judge who decided the Colorado “Millard” case may as well resign himself to staying where he is. Of course that assumes he has a lifetime appointment and is not elected.

I was arrested and pleaded guilty in federal court for a consensual relationship with someone who had reached the age of consent. While in prison, I forced the government to admit I had not violated the law, and that conviction was vacated due to “actual innocence.” The government argued, and the Court agreed, that the law was “ambiguous,” which rendered my plea “knowing and voluntary.” Rather than having the courage to decide the issue, the 10th Circuit demurred by mooting my appeal on that issue because of the vacated conviction.

Things like this happen all the time, and allow prosecutors to operate with no feedback except their efficiency reports. As one of my friends opined regarding the criminal justice system, “[I]t ain’t broken, it’s fixed.”