Questioning Prosecutorial Discretion
Prosecutors have taken a few lumps lately. Based on my own experience, most prosecutors are dedicated, hard-working, public servants who are committed to “doing the right thing.” I admired and respected many if not all of my colleagues at the US Attorney’s Offices and the Department of Justice throughout my career.
Prosecutors have a lot of power. They can ruin an individual’s life very easily. They have to exercise their authority carefully and with full recognition of the impact of their decisions.
An important aspect of this responsibility is to know when to bring a criminal case and when to decline bringing a criminal case. Prosecutors have to exercise “judgment” when bringing a case. In my experience, prosecutors know when they have a case, and they know when they do not.
In two recent cases, prosecutors suffered significant rebukes. Both are interesting cases, but they are far from equal in challenging prosecutorial discretion. Moreover, they originate from the Ninth Circuit, which is not a judicial district with a great track record of success – the Supreme Court reverses a significant percentage of Ninth Circuit decisions, more so than any other individual circuit in the United States.
First, in US v. Sidirenko, a San Francisco federal judge dismissed a criminal case brought by the US Attorney’s Office in the Northern District of California against three non-US citizens charging them with bribery involving an official at the United Nations agency responsible for standardizing machine-readable passports. The government claimed that two individuals from an Ukrainian company paid bribes the UN agency in exchange for introductions to potential clients and an endorsement to bolster the company’s reputation.
Contrary to other comments written by journalists and bloggers, the case did not involve FCPA charges; rather the case boiled down to extraterritorial jurisdiction for honest services and wire fraud; conspiracy to bribe involving a federal program; and soliciting and giving bribes involving a federal program.
At the heart of the matter was the fact that the US paid 25 percent of the UN agency’s budget, so the claimed US interest related to the funding provided by the US government.
The federal judge harshly rebuked the prosecutors based on this tenuous connection to US soil. Most of the events occurred outside the US, and involved non-US citizens. In the end, the judge, who was former prosecutor, dismissed the case, invited an appeal to the ninth Circuit and concluded by confirming he would be bound by the appellate decision (not much of a confirmation given his obvious oath to follow the law).
In another criminal case, the Ninth Circuit reversed the conviction of baseball star Barry Bonds for obstruction of justice. At trial Bonds was acquitted of six of seven counts for lying to the grand jury but was convicted of one count of obstruction of justice. The Ninth Circuit zeroed in on the specific question and answer and ruled that Bonds’ statements did not constitute obstruction of justice because they were not “material” to the overall grand jury investigation.
The Ninth Circuit Court expressed quite a cynical view as to prosecutors’ discretion and ability to exercise proper decision-making:
Making everyone who participates in our justice system a potential criminal defendant for conduct that is nothing more than the ordinary tug and pull of litigation risks chilling zealous advocacy. It also gives prosecutors the immense and unreviewable power to reward friends and punish enemies by prosecuting the latter and giving the former a pass. The perception that prosecutors have such a potent weapon in their arsenal, even if never used, may well dampen the fervor with which lawyers, particularly those representing criminal defendants, will discharge their duties. The amorphous nature of the statute is also at odds with the constitutional requirement that individuals have fair notice as to what conduct may be criminal.
Prosecutors win most of their cases – especially in the federal system. There is no doubt that prosecutors are not perfect but there is also no doubt that most of the time they get it right.