[Feedback] Prosecutor discretion

[Attempted Socialism]

The Court has discussed codifying prosecutor discretion n the Court Procedures. This is not something that should be done lightly, as one can easily see from adverse results in real life, and as such the Court invites public feedback on the topic.

Our system of open submission of indictments, accepted by the Court, and prosecuted by an appointed prosecutor, leaves open a real possibility of a prosecutor being asked to prosecute a case in which the evidence does not lend itself to the charge proposed when the indictment was submitted. It could be that the prosecutor finds that the evidence cannot show that a crime was committed beyond a reasonable doubt, or that a different crime may have occurred. In such cases, the prosecutor should be able to either drop a case for lack of evidence or change the charge to one that the prosecutor believes can be proven.
Prosecutorial discretion should serve the purpose of giving the region the best avenue for justice – in those cases where one alleged crime cannot be proven but another can – or to save the region and accused from a lengthy trial where the outcome is given by the lack of evidence.
It would also give an accused a better avenue for justice. In the current system Justices have to approve an indictment forces Justices to evaluate the submitted evidence prior to the trial, which can stick in the Justice’s mind during the trial. To avoid pre-judging the accused, the Court has sought to merely assess whether the indictment makes a prima facie case for the crimes alleged. Leaving that to the prosecutor would make the Justices better neutral arbiters. The Court would serve solely as gatekeepers against spurious accusations, and let the appointed prosecutor assess whether any alleged crime can be proven.

In real life prosecutorial discretion is misused in primarily two instances. First, where a prosecutor declines to prosecute a crime despite ample evidence, and second, charging several serious crimes in an effort to make the accused plead guilty to some of the crimes and dropping the others in return.
The first issue is valid, but a first hurdle would presumably be the Delegate’s appointment process; the Delegate could ask a prosecutor whether they intend to prosecute the case diligently. As prosecutors can’t be removed, however, other hurdles must be institutional after the first prosecutor has decided not to prosecute. One model would see the case return to the Delegate for a new appointment of a prosecutor. If the second prosecutor also signals their intention to drop the charges, the Court must sign off before it is finalised. Further, as prosecutors have to be members of the Bar, a prosecutor who attempts an unethical manoeuvre like this would risk disbarment.
The second issue also has to be resolved institutionally. The Court would have to guard vigilantly against using additional charges against the accused for intimidation. A downgraded charge, or dropping one charge among many, would be within the intended scope, whereas adding new charges should be scrutinised. Here we have an element of luck as prosecutors don’t design the indictments themselves, and therefore inherit a limiting set of charges from the indictment. Courts can then gatekeep against adding charges on top of the initial charges, and abuse would again be under threat of disbarment.

We seek public feedback to this proposal, and we will do so for future proposals to come in this term, regardless of whether those proposals can be implemented by the Court alone or requires new legislation. This is done to arrive at the best decision, and also to maintain the Court's impartiality and legitimacy. If we propose something that could jeopardise either, we wish to know sooner rather than later.

 

[Pallaith]

I assume the Court is aware that our existing law already accounts for prosecutors choosing to cease prosecuting a case?

22. If the original prosecutor is unable to see a case to completion, another prosecutor will be selected by the same procedure as the original prosecutor.
23. If the prosecutor discontinues management of the prosecution of a criminal case, then the complainant may, at their discretion, request another prosecutor be selected or withdraw the complaint.

This obviously doesn’t address the matter of changing what crimes are charged, which is not contemplated by the legal code but also isn’t necessarily out of the question. By the same logic plea deals can be contemplated. Clearer guidelines in criminal trial procedures would help here. I also like the evidence consideration - it always struck me as kind of silly that indictments presented evidence which would then have to be submitted again, and created a situation where some evidence would be held back for the actual evidence submission.

 

[Attempted Socialism]

I assume the Court is aware that our existing law already accounts for prosecutors choosing to cease prosecuting a case?

Yes. The difference being that in those mentioned instances, the prosecution hasn't made an assessment of the evidence and decided the prosecution's case is too weak to continue. I imagine a process alike 22, where a prosecutor believes that the evidence is too weak and files to drop the case. The Delegate can then either appoint another prosecutor or accept the first prosecutor's opinion. I want to avoid a case where a biased prosecutor hides their bias until they get the case only to then drop it without any recourse for the region as such, but also to make sure that a case with no or very weak evidence isn't pursued by a string of prosecutors who all find that the case is flimsy.

 

[AraFuttio]

Full support. It will be interesting to see how the Court can determine the reasonability of said ‘added charges’, as some may have a reasonable cause, but I think that should obviously be done on a case by case basis.

 

[Gymna]

Would there be any benefit to creating a Grand Jury type system for filing indictments where a Hearing Officer could review the evidence to determine if there's sufficient evidence to proceed to an actual trial and then if there is enough it moves forward? Maybe the prosecutor could be assigned to review the indictment to see if there were any added charges they wanted to put in before it was reviewed in the Grand Jury proceeding? I don't entirely know how many Hearing Officers there are but since you are compiling the list you might just have a rotating system where they are assigned to review the evidence and sign off on a finalized indictment before moving forward to full prosecution and trial. That way you don't have to worry about any prosecutorial bias or insufficient evidence issues once it got to the trial point and the justices themselves aren't pre-judging the evidence. Obviously that would likely require a big change to the legal code but just tossing some thoughts out there.

 

[Sil Dorsett]

... I don't entirely know how many Hearing Officers there are but since you are compiling the list you might just have a rotating system where they are assigned to review the evidence and sign off on a finalized indictment before moving forward to full prosecution and trial. ...

Hearing Officers are temporary. The ideal number is 0.

Temporary Hearing Officers are only appointed when the Court has an absence, vacancy, or if one or more justices are recused from a case (both criminal and request for review) to ensure that the bench has three people on it. Their terms end once the absence ends, vacancy filled, or case in which they subbed in for a recused justice ends.

A Standby Hearing Officer is only used for a criminal trial and is effectively the same as Temporary Hearing Officer, only that they're appointed ahead of time, instead of as-needed, just in case the Moderating Justice of the criminal trial needs to recuse themselves. Their terms end once the case they're assigned to ends.

There is currently one Temporary Hearing Officer (Lord Dominator, subbing in for Pallaith who is absent) and one Standby Hearing Officer (Simone, assigned to The North Pacific v. KEKISTON, GrandEngland)

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Giving potential THOs indictment review duties is not feasible, as it is not an actual position. The list you're referring to is just so that the court has a handy list of people to ask should the need arise, and so the public knows who might potentially be asked to serve. Anyone could easily add themselves to the list. In fact, there's an existing thread where people did just that. But, while just on that list, they're not actually in any position and have taken no oath of office, and thus should have no responsibilities.

 

[Gymna]

Hearing Officers are temporary. The ideal number is 0.

Temporary Hearing Officers are only appointed when the Court has an absence, vacancy, or if one or more justices are recused from a case (both criminal and request for review) to ensure that the bench has three people on it. Their terms end once the absence ends, vacancy filled, or case in which they subbed in for a recused justice ends.

A Standby Hearing Officer is only used for a criminal trial and is effectively the same as Temporary Hearing Officer, only that they're appointed ahead of time, instead of as-needed, just in case the Moderating Justice of the criminal trial needs to recuse themselves. Their terms end once the case they're assigned to ends.

There is currently one Temporary Hearing Officer (Lord Dominator, subbing in for Pallaith who is absent) and one Standby Hearing Officer (Simone, assigned to The North Pacific v. KEKISTON, GrandEngland)

---

Giving potential THOs indictment review duties is not feasible, as it is not an actual position. The list you're referring to is just so that the court has a handy list of people to ask should the need arise, and so the public knows who might potentially be asked to serve. Anyone could easily add themselves to the list. In fact, there's an existing thread where people did just that. But, while just on that list, they're not actually in any position and have taken no oath of office, and thus should have no responsibilities.

Thanks for the clarification. I'm new to TNP so I appreciate it.

 

[Simone]

I would hesitate over a grand jury system as overly complex given the size of TNP.

 

[Comfed]

The first issue is valid, but a first hurdle would presumably be the Delegate’s appointment process; the Delegate could ask a prosecutor whether they intend to prosecute the case diligently. As prosecutors can’t be removed, however, other hurdles must be institutional after the first prosecutor has decided not to prosecute. One model would see the case return to the Delegate for a new appointment of a prosecutor. If the second prosecutor also signals their intention to drop the charges, the Court must sign off before it is finalised. Further, as prosecutors have to be members of the Bar, a prosecutor who attempts an unethical manoeuvre like this would risk disbarment.

With regards to your last sentence, I would point out that Regional Bar members cannot legally be disbarred unless they are convicted of a crime, in which case they are required to be. Otherwise, your proposed solution seems fine.

The second issue also has to be resolved institutionally. The Court would have to guard vigilantly against using additional charges against the accused for intimidation. A downgraded charge, or dropping one charge among many, would be within the intended scope, whereas adding new charges should be scrutinised. Here we have an element of luck as prosecutors don’t design the indictments themselves, and therefore inherit a limiting set of charges from the indictment. Courts can then gatekeep against adding charges on top of the initial charges, and abuse would again be under threat of disbarment.

You have already given some reasons as to why this is unlikely happen in our system elsewhere. All the offences defined by the Criminal Code are relatively distinct. In the United States, a tactic which exists is for prosecutors to initially charge murder defendants with capital crimes in order to negotiate them down to accepting a plea bargain for non-capital murder and a life sentence. We don't have the death penalty here, so that can't really happen, and the closest equivalent, a permanent ban, only exists for the crimes of treason, proxying, and the COPS crimes. All of those are really in categories of their own. The penalties for the rest are all relatively light--in fact, none of them carry the possibility of being banned from the region--so in general extortionate use of criminal charges by prosecutors is not really possible. The length of sentences is also entirely at the Court's discretion so they can act as another safeguard against this form of intimidation.

 

[Attempted Socialism]

@Comfed posting from my phone, so I will just highlight the followings part of the rules governing the bar commission and the bar as a whole:

Section Three: Loss of Membership for Breach of Duty
1. If the Bar Commissioners consider that there has been a breach of any duty of a member of the Bar and that because of that breach of duty the member is no longer be an acceptable member of the Bar, they may revoke the membership of the member.

If we see abuse of prosecutorial discretion to drop all charges and clear an otherwise clearly guilty person from the appointed prosecutor, that is breach of duty. A prosecutor could, hypothetically speaking, do so once, and sacrifice their bar membership. In such a case I would want there to be one more appointment of a prosecutor to take the case.

 

[Attempted Socialism]

A slightly longer post now that I'm on my laptop.
Ideally we can strike a perfect balance that gives the region an avenue for justice without the risk of a single rogue actor denying justice to the region, while also protecting the accused and guaranteeing them a fair trial. That's what I am aiming for here, and I think it's possible. As I see it, the region is well-served by having two bites at the apple, so to speak, so if the first prosecutor (for whatever reason) finds the case to be too flimsy to prosecute at all, another one can be appointed and give it a try. For the accused that's reasonable too, as I see it. If two prosecutors outright decline to prosecute, that's a clear sign that the allegations simply didn't suffice for a trial, and would be understood the same way as a verdict of not guilty. A single prosecutor dropping a case could be a mistake, laziness, or illicit reasons, but two is beyond questioning. More than two prosecutors would -- as I see it -- be an injustice towards the accused, who remains on trial for the duration.

Your point about US prosecutors tracks close to my thoughts on the matter. I can't rule out that prosecutors in TNP can use additional charges to bully the accused into accepting an otherwise unfair and unjust plea deal, but the risks seem to be minuscule compared to why it happens in real life. I want to leave the door open for a prosecutor who finds that they can prove an additional crime to have that option, but I imagine that it's very much a hypothetical scenario.

 

[Attempted Socialism]

The process of drafting the language has sadly taken a bit longer than expected, so we are too close to the election for this Court to both give the public a fair chance to offer feedback on the proposed language and decide whether to finally implement the changes discussed. As such, the language will be posted for public comment, but it will be left to the Justices elected in the upcoming elections to decide whether the language should be adopted.
Here is the draft language for allowing prosecutor discretion:

Prosecutor Discretion:
Chapter 1, section 1:
Add point 9-11:
“The Prosecutor appointed to a case may, at their own discretion, choose to remove or substitute lesser charges in the filed indictment, if the evidence cannot support all the initial charges, or fits a different charge better. The Prosecutor may only add additional charges with the acceptance of the Moderating Justice.
The Prosecutor appointed to a case may, if the evidence cannot support any charge, ask for the charges to be dropped and remove themself from the case. This is equivalent to being unable to see the prosecution to completion. The original appointer may then either appoint a second Prosecutor or drop the charges. If the second Prosecutor also asks for the charges to be dropped and removes themself from the case, the charges are dropped.
If a case is dropped by the Prosecutor citing lack of evidence, the Court shall treat the indictment as rejected.”