Prosecutors have a great deal of discretion. The decisions we make can change a person’s life, sometimes for the better, sometimes for the worse. People are not perfect and they make mistakes. The duty of the prosecutor is to do justice. But what does that mean? Well certainly it can mean different things to different people but I believe keeping in mind these two important facts provide the best chance of fulfilling this sacred duty of a prosecutor. It might surprise some to know that prosecutors are responsible for protecting the rights of the accused as well as the victims. The office of the District Attorney does not investigate crimes. Law enforcement agencies investigate crimes and sometimes make arrests with charges in the form of a criminal complaint. It is at this point that the District Attorney’s office gets involved. It is imperative that each case brought to the District Attorney is evaluated on its own merit.
It is the sole discretion of the District Attorney whether to move forward with prosecution. This discretion must be exercised carefully and wisely. During my 20 plus years as a prosecutor, I have evaluated literally thousands of cases. I rejected a large percentage of those cases for prosecution. Many factors are considered when deciding whether or not to prosecute a case. Of course, the conduct must be criminal as violating one of our statutes. Other factors are the age of the accused, the severity of the crime, the criminal history or lack thereof, the wishes of the family and victims, the impact on the community, underlying issues such as addiction, lack of job skills, and ability and willingness to be rehabilitated. This is a non exhaustive list of some of the things a prosecutor should consider when evaluating a case. These decisions are not always easy—nor should they be. But only with years of experience does a prosecutor develop the ability to make the tough calls of when and if and how to prosecute any given case.
Factors which should NEVER play a part in the evaluation are race, ethnicity, gender, or sexual orientation of the accused or the victim. Likewise, if the rights of the accused have been violated during the course of the apprehension or investigation by law enforcement—whether intentionally or not—the District Attorney should consider very carefully whether or not to prosecute. More importantly, if such instances occur, there must be an open and frank discussion with the leadership of the law enforcement agency to ensure all parties understand what went wrong and to take corrective steps to prevent such incidents in the future. This requires an established relationship of mutual respect and cooperation with the District Attorney and law enforcement. The District Attorney does not control or supervise the police. Nonetheless, we do share a common goal of serving and protecting our community. In that regard, I will continue to work closely with the leadership in each of the law enforcement agencies throughout the district to establish and maintain a philosophy and practice that will absolutely not tolerate instances of abuse and misconduct such as what the world witnessed in Minneapolis with the killing of Mr. Floyd. All of us—starting with me, as your District Attorney, the Chiefs of Police, and the Sheriffs must stand together in unity to condemn any acts of abuse or misconduct by police or prosecutors. With one voice we will declare “Not on my watch!”