To Seek Justice: Defining the Power of the Prosecutor
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To Seek Justice: Defining the Power of the Prosecutor


The prosecutor’s job is not, uh, to convict
people, or to put them in jail. It’s to do justice. There’s an old adage that, uh, the last place
that you should seek justice is in the halls of justice. The, the federal criminal justice system,
carefully, uh, has evolved, uh, with, with checks and balances, and it works. Prosecutors exercise a tremendous amount of,
uh, of power. And they’re given a tremendous amount of authority. And with that, uh, they oughta exercise it
responsibly. And there needs to be some oversight for,
for that. This is not a new debate. This is a debate that we’ve been having for
as long as the criminal justice has existed. So, a prosecutor is a public official who
is assigned the responsibility to prosecute individuals who have been accused of committing
criminal offenses. They have the responsibility to ensure that
the laws passed by Congress, and signed by the president are executed. I, I see the, the prosecutor as wielding the
most enormous power of any, anybody, any government official. Any government official when you think about
it. And I’m talking about exercising legitimate
power. Legitimate power that can deprive a person
of his liberty. Destroy a person’s reputation. And actually, take away a person’s life. Those jurisdictions that have capital punishment. Unlike a, uh, civil lawyer, who, you know,
is, is hired by a client who is, uh, uh, staying within the bounds of, uh, uh, ethical rules
to try to win their case. Uh. A prosecutor’s role is not to win at all costs. Uh. It is to, you know, seek an indictment and
charges against the guilty. Uh. And also to investigate and try to exonerate
those who are not guilty. My view is that prosecutors are performing
a public service. Um. And we have a system in which, um, there is
adversarial litigation in criminal litigation. So, um, you have prosecutors on the one side. You have defense counsel on the other side. Um. And we practice every day against some very,
very talented and dedicated defense counsel. And, prosecutors are necessary for that system
to work. I don’t know that it’s an inherent flaw to
have an adversarial system of justice in which prosecutors advocate for one side. I think what’s extremely unwise and misguided
is, to suppose they can in fact wear these two hats. And advocate for the government on the one
hand, and an independent officer of the court, charged with doing justice on the other. Defense lawyer is supposed to zealously defend
their client. I’m supposed to sacrifice myself over the
client. That is not the mantra, the ideology, the
ethos of a prosecutor. Prosecutor’s got one duty, and one duty only. Seek justice. Unfortunately, that isn’t what happens in,
in America. To do justice, to balance your, your, your
obligation to convict guilty people, but also serve the cause of justice, you need, a, a
huge amount of discretion in there to be able to make these very, very difficult choices. Choices that depend on the ev, evidence. Choices that depend on the charges. Choices that depend on the nature of the offender. Prosecutorial discretion is one of the most
critical functions a prosecutor has. It’s a gatekeeping process by which we look
at cases that come in. We can’t, either in the federal system or
in a state system, you can’t prosecute every crime that’s committed. Uh. Nor should you. Justice Jackson, when he was the Attorney
General of the United States, gave a speech on April 1st of 1940, called the Federal Prosecutor. In that speech, he addressed prosecutorial
discretion. And he explained that the prosecutor should
seek to bring charges in those cases where the defendant’s conduct is most egregious. Where the public harm is the greatest. And where the proof is the strongest. And that’s essentially what prosecutors do. I do think that prosecutors need to have a
certain amount of discretion in how they go about their job, and the decisions that they
make. But I think we’ve allowed the process to become
so lopsided, uh, where it really is basically run by prosecutors. Prosecutors are certainly powerful and important
players in the criminal justice system. But not in a way that is improper. The idea that they’re running the show, neglects
a lot of other players in the criminal justice system. Prosecutors generally, in our system of government,
have a fair amount of discretion to decide what charges are appropriate, decide who’s
appropriate to charge, decide how to resolve a case. Whether through a plea bargain or going to
trial. After the civil war, there was a significant
rise in crime, and with that, a need to resolve cases in a expeditious efficient way, to prevent
the system from being clogged. And that’s how plea bargaining came into being. The essential concept of a plea bargain, um,
is that the, the, the person who pleads guilty, admits guilt, um, to some offenses, and then
gets some sort of benefit, um, for having done that. There are something like 11 million arrests
last year. Um. That’s a lot of people to process through
the system. Uh. And there’s fairly wide agreement among experts
that, if every criminal defendant exercised their constitutional right to a jury trial,
the whole system would just grind to a halt, because we just don’t have the resources or
more accurately, we are not prepared to commit the resources to ensure that every criminal
defendant gets the jury trial that they are constitutionally entitled to. When they don’t contest their guilt, it would
be a huge waste of our resources to bring citizens in from the community to sit through
a trial where there’s no, no contest. Where everybody agrees that the person’s guilty,
it’s more important that we focus those limited resources on the individuals who contest their
guilt, and give them full due process. Uh. I think there are more cases than ever that
are now, uh, ending in a plea bargain. I think it’s now about 97% of cases end in
plea bargain. You have to do nothing more than take a look
at the number of people that go to trial in the federal system. There are federal judges who’ve never tried
a federal case. There are federal judges who’ve retired from
the bench, who’ve never heard, or had to, their clerk read the words, “Not Guilty” in
their courtroom during their entire federal career. Which is to, should give you great pause if
you’re a citizen in the United States of America. From about 1960 to 1991, violent crime spiraled
upward. It more than tripled during the mid to late
’80s. Congress responded and they implemented mandatory
minimums. And federal prosecutors working with state
and local partners, began to go into the communities, and take out the worst, most violent, significant
drug traffickers, and vi, and other violent felons. And they took those folks, and they put ’em
in federal prison. And it worked well, because beginning in about
1991 and continuing to about 2014, the violent crime rate was more than cut in half. If someone is convicted of a mandatory minimum
penalty, the judge is supposed to sentence somebody to that minimum period of time. Possibly a lot more. And that has changed the leverage that prosecutors,
uh, have when it comes to charging decisions and plea negotiations. The reality of our system is, that is a defendant
goes to trial, the defendant and his lawyer know, that if he gets convicted, he’s gonna
get sentenced far more harshly than if he agrees to, uh, uh, settle the case by pleading
guilty. And there will be some people who will say,
“Well gosh. I’m innocent. But I am aware that there is some evidence
that makes me look pretty bad.” Uh. “And that a prosecutor might well get a conviction. If I accept this plea bargain, I get a three
or four-month sentence. If I am convicted of this mandatory minimum
offense, I will get a five or 10 year sentence.” And so, some people will say, “Even though
I am innocent, I realize things look bad for me, therefore, I will take that plea.” The idea that you’re somehow coercing an innocent
defendant to plea guilty to a crime they did not commit, because they fear the mandatory
minimum, ignores the reality that, most of these criminal cases in federal court, are
incredibly strong. And it also, you have to accept that the grand
jury indicted a case that was not supported by the evidence. That a criminal defense attorney who have
reviewed the discovery, believes that their client should plead to a crime that they did
not commit. And it also, overlooks that, in the federal
criminal justice system, no defendant can plead guilty to a crime unless a US district
court judges makes a finding that that plea is supported by a factual basis. The judge must be convinced based upon the
colloquy, and the evidence in the record at the plea hearing, that the defendant committed
the crime that he’s pleading guilty to committing. Prosecutors, as they say, by controlling the
charges, they control the sentencing. Because if you, if you bring a charge that
carries with it, a mandatory minimum, the judge can’t undermine that. You’re, you’re effectively making the punishment
by bringing the particular charge. We’re looking at the law. We’re looking at the facts. Does it fit, um, this offense? Whether or not that offense carries a mandatory
minimum. And, if it does, we think it’s in the best
interest to charge it, we’ll charge it that way. And it’s, um, one, one tool, uh, if you will,
in the prosecutor’s toolbox. The job of a prosecutor is to enforce the
law as written by Congress and signed by the president. The federal law at this point, has mandatory
minimums. The prosecutor’s job is to follow the law,
and enforce the law. If people are upset about the existence of
mandatory minimum, the proper forum is, Congress, not the US Attorney’s office, to raise that
complaint. We have a very important doctrine called prosecutorial
immunity. Prosecutorial immunity means, that a prosecutor
is immune from being sued civilly for his ac, conduct as a prosecutor. All the conduct that a prosecutor does in
terms of charging, plea bargaining, trials, hiding evidence, uh, even bribing a, even
bribing a witness. A prosecutor enjoys absolute immunity from
being sued civilly. The overwhelming number of cases prosecutors
are immunized. Now, I don’t, I’ve never understood this,
I’ve always been on the defense side for 35 years. I screw up, I get sued. I gotta defend myself. If I can’t defend myself, I gotta pay up. Ask yourself, recognizing the fact that, like
the rest of us, they are human. If you can win a case through misconduct,
by basically cheating in effect, with the knowledge, or at least a fairly high degree
of certainty that there will be no repercussions for you personally, if you, if you do that,
essentially, that you will get away with it. Which way does that, what kind of incentives
does that create? The idea behind absolute prosecutorial immunity
is that, if the prosecutor had to fear that every one of those defendants would bring
a civil lawsuit against the prosecutor, for wrongful prosecution, that the prosecutor
would, first of all, be deterred from making the tough decisions. And second of all, that the prosecutor would
essentially have to create an entire wing of the prosecutor’s office devoted to nothing
but defending all of the civil lawsuits. Because, it is pretty much a given that a
large percentage of the defendants that are prosecuted, or prosecutes, would want to sue
the prosecutor. So, it’s prosecutorial decisions have to be
made independently, without that, that sort of fear. Prisoners, criminal defendant in particular,
are especially litigious. Now, uh, recognize that that’s a concern. But it is a concern that could absolutely
be addressed and dealt with, far short of completely eliminating civil liability for
prosecutors. Which is the only real, uh, means of truly
effective accountability available to us. The Supreme Court I think, has said, that,
um, “The idea of prosecutorial immunity is really a balancing of evils.” It’s not like it’s perfect in every instance. But, um, overall, it’s better for the system. Prosecutors are hands down, the least accountable
people in America. Um. As a, they cannot be sued. Um. The are virtually never prosecuted for their
own misconduct. Internal disciplinary measures, um, exist
on paper, but they’re a joke in practice. There’s an extensive body of literature that
shows that prosecutors routinely get away with jaw-droppingly, uh, unethical and improper
behavior. This notion that there is widespread, uh,
prosecutorial misconduct is simply a myth. Uh. On any given year, there are about 2.2 million
felony prosecutions. And in the same year, there are usually about
60 findings of prosecutorial misconduct. That’s infinitesimal. And to, uh, to suggest that with the robust
checks and balances we have in place now, there need to be more to, to focus on a problem
that is, that, that is really nonexistent, uh, I think is, is misplaced. I like to think that those instances are few
and far between. But they certainly happen. Uh. And one should examine them very carefully
to find out what went wrong. And what can be done to make sure something
like that doesn’t happen again, or a least dramatically minimizes the likelihood that
it’ll happen again. What’s interesting is, the courts, who could
presumably oversee the prosecutors discretion, exercise virtually no supervisory authority. We have judges who have the authority to dismiss
cases if the case is brought to trial and the government doesn’t have sufficient evidence. They also have the authority to, uh, if a
prosecutor has engaged in some other type of misconduct, the judge can take action against
the prosecutor. The judge who’s part of the judicial branch
will make ruling, uh, based on the arguments of the parties. Um. And so, that keeps the prosecutor in check,
if you will. The criminal justice system, uh, is and ought
to be, ultimately the responsibility of judges as neutral arbiters. It should be there job to ensure that everybody
within the system is playing by the rules. That doesn’t happen very often in our case,
in our system, because, prosecutors are really running the show from start to finish. Not much of the total amount of criminal litigation
that goes on in America today happens in court. Most of it, uh, happens at the level of the
prosecutor, um, interacting with defendants and their attorneys. Most of what, uh, a prosecutor does is in
the public eye. It’s on public pleadings. It’s in briefs. And it’s in open court. So, the levels of review begin with the public. They, the media, the judiciary. Beyond that of course, we have the Office
of Professional Responsibility. And beyond that, uh, every prosecutor is subject
to disciplinary action, uh, by the, uh, Board of Professional Responsibility in their state. So, t, all of those layers are there. There are prosecutors who do violate the rules. Sometimes often. And these prosecutors should be weeded out. They should be weeded out either by their
own offices, or by the, the system of, of Professional Discipline. Um. And they do give prosecutors a bad name. Just as bad police officers give, give the
police officers a bad name. The stakes are high when it comes to, to criminal
law. A, again, respect for the rule of law in our
society largely comes down to, how does our criminal justice system, uh, operate. Do people get a fair shake? Both victims, uh, and people who are under
investigation? People always tell me, “It may not be a perfect
system, but it’s the best system that we’ve devised.” And I always tell them, “You know. Conceptually, I agree with that, but if this
is the best, then, the, then that’s frightening.” Uh. Because, uh, all you have to do is hang out
in any courthouse, uh, for any period of time in virtually any jurisdiction and, you would
be appalled by what you see on a daily basis. We’ve created a situation where it’s extremely
difficult for, for criminal defendants, um, to have a zealous representation, and we’ve
equipped prosecutors with an astonishing array of coercive tools that they can and do bring
to bear on people to extract, uh, confessions. Uh. And that’s why most criminal convictions today,
more than 95%, are obtained through plea bargain. It’s not because people are no longer interested
in exercising one of the most hallowed and hard-won rights in the Constitution. Which is the right to a jury trial. It’s because they’re being pressured and coerced
into pleading guilty, whether they’re guilty or not. And that has got to stop. The, the fact that we have so many people
in prison is not as a result of, uh, ov, overly zealous prosecutors or enforcement, it’s a
result of the fact that we have too much crime. And, uh, you can look to whatever causes you
want for that crime. Whether it’s, uh, people don’t have job opportunities,
whether it’s the educational system, whether it’s a breakdown in the family structure. Whatever, whatever it is, it is. And our job as prosecutors is, at the end
of the line is, to deal with that. And, the way we, we have to deal with it is,
to incarcerate people who victimize, uh, the good and honest citizens who are out there
in the community. I do think that the vast majority of prosecutors
take their duty to do justice, and not just to seek convictions, very, very seriously. Um. And so, they’re out there every day, um, investigating
to see, has a crime even been committed? If a crime has been committed, what kind was
it? Um. And who’s responsible? And trying to make the best decision possible,
um, about what charges to bring, and who to charge. I mean, I think a prosecutor’s job is one
of the great jobs anybody could hold. As I said, I couldn’t wait to get to work. I, I felt I was privileged, honored to be
a prosecutor. To be able to serve the public this way. To be able to serve justice. It’s a wonderful, wonderful profession. But it needs those people who, who are inspired
to do the right thing. To make sure that, uh, that they’re gonna
follow the rules. You know, to ensure that, uh, at least the
best, the best of your ability. That society is being protected, but that
individuals, uh, are not being, uh, unf, un, unfairly and probably, wrongfully, uh, accused,
and punished. The idea that we’re ever going to find a perfect
answer to this, neglects that fact that, what we’re talking about is a system created by
human beings, dealing with other human beings. And as we approach the debate, what’s important
I think, to remember is that, both sides are approaching it in good faith with ideas about
the way in which they think improvements should be made, or improvements are unnecessary. But, at the end of the day, people who are
on both sides of the debate, are well-meaning. And we have to be careful that we don’t somehow
paint the people who don’t want the reforms as a particular type of person, and those
who are seeking the reforms as a particular type of person. Instead, we should relish the debate. It’s an important debate. It’s one that we should be having.

14 Comments

  • nateo200

    A very important topic! Robert H. Jackson's thought's always immediately come to mind when I think of the power of a prosecutor.

  • Hank Simon

    Disappointed that there was no mention of the case regarding Rod Class and his challenge in the US Supreme Court regarding plea agreements where he won. This could be seen as sophistry being used. I have a hard time thinking that someone intelligent enough to produce this video would neglect and leave out vital information like that especially a ruling from the Supreme Court.

  • Hank Simon

    So essentially a prosecutor can use logical fallacies and methods of warfare that the military uses and be immune from civil action? And on top of it getting public funding from the public who is essentially their employer? Wow!

  • Whale Biologist

    Excellent video showing the multiple dimensions behind prosecution, as well as opinions from both sides. I didn’t feel like the video pushed either agenda, and at the end of it the only conclusion I came to was that the system is messy and imperfect, like all human systems. Thank you for creating high quality non-partisan content.

  • Eric LeFevre

    I didn't even know you guys had a channel until October when you tube's algorithm put the Morrison V Olson video in my queue. I have now watched like 10 of your videos and they are all great. To whoever at the Fedsoc that puts these together: you deserve a big fat raise.

  • Jan Hamilton

    Public Defender Prosecutors have committed more crimes of false arrest, false reporting and false incarceration than the country can continue to sustain. Our jails are bursting at the seams with innocent indigent people. Corruption of salaries paid in relationship to the jail population should be investigated with strict scrutiny. Rape and sexual harassment in jails with the absence of due process, no law books, solitary confinement is criminal, with the DA's offie at fault. 11 million arrests in America last year is unpardonable! God help us! My habeas corpus cases of false and illegal church arrest because I am a lesbian are still sitting on the desk of biased, prejudiced and homophobic Sr. Judge James B. Boyd in Aspen, Co. since 2014. They were docketed at the US Supreme Court but were changed from alleged misdemeanor to civil cases. This is unconstitutional. I am not a criminal, I love a person of the same gender. That is not a crime as Church Elders alleged in Aspen, Co.

  • hecke1959

    Let me tell you the story of Indian Joe ,who was my dad's friend who was accused of killing his girlfriend. Indian Joe retained a lawyer and fought the conviction. When Joe's money ran out so did his lawyer. Not being able to retain another lawyer Joe was convicted of murder and was giving the death penalty. My dad always talked about Indian Joe who when the money ran out was really never served justice because back then your voice was never heard. To this day I want a new trial for Indian Joe, so justice will be served. Now it possible Joe could have been guilty or maybe not.The world will never know as Joe stood in the court room all alone against a system that was not set up yet to help the little guy. As today we are better equipped to help the little guy.

  • Edward Johnson

    Wow I’m surprised this a fairly recent video. This was freaking awesome, I loved the description and interviews that were given of such an important and critical human system especially in the United States.

  • herosfootsteps123

    This is a well done video that exposes how the court system really runs without pushing a biased agenda. There is a huge need for reform. This video articulated how the prison system was able to evolve into the modern day slave trade!

  • Trooth Teller

    Of course, the courts are designed to adjudicate … but they are also rigged to incarcerate. The most honest statement is at 16:01, followed by 16:32. A majority of the others seem to be living a bubble, either out of touch with reality or simply not being honest. This video really shows how propaganda and feel-good lies permeate our justice system. The one essential fact you need to embrace is that judges and prosecutors are elected based on their success rate "locking up" criminals and allegedly making communities safer. Period. There is no incentive to be "fair", or to err on the side of defendants. Just look at attack ads prior to local elections and see how routinely prosecutors and judges are criticized for being "soft on crime". This is a factor of our punitive justice system, a revenge and humiliation-based model that doesn't work, that doesn't stop crime or recidivism, but actually perpetuates the status differences that foster crime. Have you ever heard a judge touting their record about how they dismissed cases because of improperly-obtained evidence, or prosecutorial misconduct?

  • Kaskadia Jackass Watch

    If 95-98% of judicial misconduct complaints (against judges) are dismissed, the only ones not dismissed are filed by other judges & lawyers, what are the true rates of prosecutorial misconduct complaints by citizens that aren't dismissed?

  • ROLEX SUBWAY

    LOL. Jessie K. Liu telling us about prosecutorial misconduct? Liu's picture is next to that term in the dictionary. I cannot believe Lie hasn't been disbarred yet. He has applied the law unequally depending on political party or whoever has connections. It is revolting. If not for being immune to being sued Liu would be under the jail. Everything Liu has done in the legal field are examples of why he gets moved around so much. This is the type of federal employee that gets shuffled around until they retire or hopefully they leave. Jessie, have you ever just considered shaving and becoming a male prostitute? Wherever that is legal of course.

  • mtlart

    "One of the biggest challenges in malicious prosecution cases based on the filing of criminal charges is prosecutor immunity……

    There are, however, limits to this immunity. If the person bringing a malicious prosecution suit can show that the prosecutor acted outside his authority in the process of instigating or pursuing a criminal case, the immunity will not extend to those actions in most jurisdictions. If the businessman can prove, for example, that the prosecutor paid a witness to testify to certain things or created false documents, the prosecutor probably would not have immunity, because those actions would be outside the scope of the prosecutor’s job.

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