Prosecutors need to be held accountable for overzealous charging policies

We don't need to look back to Duke lacrosse to make the point suggested by the headline of this post. Several dramatic recent posts on this site, see, e.g., here and here, have underscored the crucial importance that prosecutors' charging policies play in the false rape milieu. In both of those cases, and in many others, a decision not to charge easily could have been justified.

A prosecutor is the gatekeeper of justice who should only bring charges, as Prof. Bennett L. Gershman has described it, when he or she is convinced to a moral certainty of both the defendant's factual and legal guilt. To bring charges when there is any less certainty does not fulfill the prosecutor's duty to do justice, but invites miscarriages and the possible conviction of an innocent defendant.

We recently saw a thoughtful application of a rational charging policy when Georgia district attorney Fredric D. Bright announced that Pittsburgh Steelers quarterback Ben Roethlisberger would not face charges for sexual assault. He explained that the duty of a District Attorney is to seek justice, and not merely to convict. He said that the sexual allegation "cannot be proven beyond a reasonable doubt."

Abbe Smith, the former deputy director of the Criminal Justice Institute at Harvard Law School who now teaches legal ethics at Georgetown University said this: "The charging decision is a critical decision. You should not prosecute every case."

Nancy J. Diehl, head of the felony trial division at the Wayne County Michigan Prosecutor's Office, suggested a helpful guide: "In cases where there is a motive, we take an even harder look," Diehl said.

"He said/she said" cases, without any other evidence, and where both sides are plausible, should not be prosecuted. Prosecutors should not look to "get lucky" in doubtful cases, hoping to get the "right" jury that might send a male away for decades for a crime the prosecutor isn't confident to a moral certainty he committed.

Most prosecutors, of course, are not overzealous in bringing rape charges. Those who are, however, have destroyed lives and have cost many men their life savings. We need to call them out when we see overzealous charging.

Dwayne Dail Case

Let's recall one case where charges were brought when they didn't have to be. Remember the Dwayne Dail case? Mr. Dail, then 19-years-old, was wrongfully convicted of rape based on the say so of a twelve year old girl. Mr. Dail served 18 years in prison where he was subjected to prison atrocities and repeatedly victimized by the crime that he did not commit but was convicted for.

Don Strickland, the attorney who prosecuted the Dail rape case, justified bringing the case as follows: "I didn't have the strongest case in the world, but nor did I have the weakest."

Let us stop. If we are going to destroy a man's life, don't you think we should insist that the prosecutor have a strong case?

Strickland explained that his prosecution of Dail hinged on two things -- the victim's identification and the "microscopically consistent" hair found on the rug in her room (which just meant that the hair had the same characteristics as Mr. Dail's hair). Strickland said: "The strongest thing I remember about it was the way she identified him. She was walking in an apartment area and she just froze and said 'Mom, that's him.' She was an excellent witness. She was almost a prosecutor's dream. She positively (identified) him." (A "prosecutor's dream" -- because she seemed so believable. Never mind whether she really was telling the truth.)

As for the hair: "The science of that hair match was not the greatest in the world, but in those days we didn't have DNA. It was the best we had. I thought it was better than nothing, but it turned out it wasn't."

And a pubic hair found at the scene did not match Mr. Dail.

They had other "evidence," too -- useless evidence -- a vaginal swab, but they weren't able to make an accurate determination whether the semen had come from Mr. Dail or not.

What about the police investigation? "It wasn't the greatest police work in the case. That detective was no Sherlock Holmes."

Accordingly, the Dail case combined junk science with the "consistent" hair that the prosecutor now admits was the same as nothing, evidence that was inconsistent with Mr. Dail's involvement, evidence that everyone accepted showed nothing (the vaginal swab), and a mediocre police investigation.

So what was left? A twelve-year-old girl who was very believable. It was that a twelve-year-old girl who sent a 19-year-old man to prison for 18 years -- because a district attorney and the jury believed her over him.

As the prosecutor said: "The girl said that he was the guy who did it. I couldn't dismiss that," Strickland said.

Read that last sentence again and again and again. Let it sink in. A man's liberty, his life, was completely in the hands of a twelve-year-old girl. Thanks to a prosecutor willing to roll the dice with a man's life. His life was destroyed because of a twelve-year-old girl.

And that, ladies and gentlemen, tells us that there is something very, very wrong with any system that allows that.