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‘The Power of the Prosecutor’

2:26 PM, Jul 17, 2013 • By ADAM J. WHITE
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As Jonathan V. Last observed earlier today, the George Zimmerman trial illustrates the immense power and discretion afforded to state and federal prosecutors.

Eric Holder official portrait

Society entrusts prosecutors with weapons sufficient to defend civic society from the threat of crime and mayhem, yet those same tools are capable to great destruction themselves. Whether one agrees with the Zimmerman verdict or not, these are fundamental questions of the rule of law, and of republican virtue.

While many have thought about these questions, none rival the thoughtfulness of Supreme Court Justice Robert Jackson. Before Jackson became one of the 20th century's best-respected justices, he was the attorney general. And in 1940, he addressed the Second Annual Conference of U.S. Attorneys, a gathering of the nation's federal prosecutors. 

His speech stands today unrivaled as the most eloquent consideration of prosecutorial power and responsibility:

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

... There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. 

... If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. 

... The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

Whether or not the Justice Department ultimately decides to prosecute Zimmerman amid the current political storm, we can only hope that Attorney General Holder and his peerless prosecutors pause to re-read Justice Jackson's speech, as they should before every prosecution.

It won't be hard for them to find. The Justice Department keeps a copy of the original typescript on its web site.

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