Power Outrage

By Reynolds Holding

As a public defender in Washington 20 years ago, Angela Davis defended a Jamaican immigrant against rape charges. The man had no criminal record and insisted on his innocence but was forced to stay in jail because he could not afford bail.

When Davis went to interview the man's accuser, she learned that the woman was deaf and unable to communicate with anyone except her mother. The prosecutor couldn't make a case without an unbiased third-party interpreter, so Davis asked him to release her client. He refused, declaring that he had nine months to get an indictment. When that time was up, the prosecutor let the man go. "I know he's guilty," he told her. "At least he did nine months in jail."

The power, if not the arrogance, of prosecutors would grate on Davis throughout her 12 years at the D.C. Public Defender Service, three as its director. Now a law professor at American University, she has made a mission of exposing that power--on radio and TV and in a new book, Arbitrary Justice--with hopes of reining it in. Her task, lonely at first, has gained support since North Carolina prosecutor Mike Nifong lost his job and his law license for hiding evidence in the now defunct rape case against Duke lacrosse players. (On July 26 he is scheduled to face charges of lying in court.) In October, Davis will lead a national conference on prosecutorial power, sponsored by the esteemed (at least by liberal bigwigs) American Constitution Society.

Her beef is not so much with prosecutors breaking the rules, although plenty do. In 2003 the nonpartisan Center for Public Integrity found that prosecutorial misconduct led to charges being dismissed, convictions reversed or sentences reduced in more than 2,000 cases since 1970. Davis' greater worry is all the behavior considered within bounds but outside any reasonable notion of fair play. She points to a case's early stages to show the power prosecutors have for abuse--and how she would fix the system:

Probable Cause.

When prosecutors pick which criminal charges to file, they need have only probable cause, or reasonable belief that the suspect committed the crimes charged. This low standard creates room to pile on the most severe charges possible to bully a defendant into a plea bargain. If a case ends up going before a jury, the prosecutor would have to prove his case beyond a reasonable doubt. So why give him the chance, Davis argues, to "intimidate, harass or coerce a guilty plea" with charges he knows he cannot prove at trial? Davis would bump the probable-cause standard to something requiring more certainty.

The Grand Jury.

The Constitution requires a grand jury to indict a suspect before he can be tried for a federal felony, and about half the states have a similar setup. This panel of ordinary people is supposed to check the prosecutor's power by making him present a preliminary case in a kind of minitrial, though one without a defense attorney. But because the prosecutor gets to decide which witnesses to call and which questions to ask, Davis wants to make the process less one-sided by requiring prosecutors to tell jurors about evidence that helps the suspect.

Plea Bargaining.

The vast majority of defendants cut deals because fighting charges at trial can result in much longer sentences. Prosecutors and public defenders like to settle cases too, given their massive caseloads. But prosecutors generally hold all the cards: in a case's early stages, a defendant rarely knows how strong the evidence is against him. And the mandatory minimum sentences for many crimes give prosecutors a clearly defined punishment to hold over a defendant's head. That is the reason Davis wants to make prosecutors open their files before offering a deal. "Their job, after all, is not to win but to see that justice is done," she says.

As Davis advocates putting these new rules in legal-ethics codes enforced by state bars, prosecutors argue that such changes would tie their hands unnecessarily. But some prosecutors are at least willing to open themselves to scrutiny. In places like Milwaukee, San Diego and Charlotte, N.C., they are letting the nonprofit Vera Institute of Justice examine their charging decisions and plea-bargain offers for discrepancies in how black and white suspects are treated. The three-year study will go through 2008, and these offices have promised to use the results to make their practices fairer. It's a significant start and one Davis hopes will prod other prosecutors to move in the same direction. But if it doesn't, there's still the power of fear. After all, she says, "nobody wants to be the next Mike Nifong."