Sunday, February 23, 2014

The Politics of Prosecution

Comparativists are often quick to attack the fact that American prosecutors, at least on the state and county levels, are often elected. By requiring prosecutors to maintain the public's approval, as the criticism goes, we create an institution beholden to the wims of the electorate, rather than to the standards of the law. Indeed, we have seen how the hand of politics often skews prosecutorial decisions-making.  One case in point is the infamous Duke Lacrosse case where, a prosecutor facing reelection, withheld exculpatory evidence and made inflammatory statements concerning the guilt of three suspects who were charged with first degree sexual offenses.  Although the charges were eventually dismissed and the prosecutor disbarred, the reputational damage to the three suspects was enormous.

Yet prosecutors in civil law countries are not immune from political influence. In Germany, prosecutors are subservient to the Ministry of Justice at the federal and Land levels. One requirement of this hierarchical structure is that prosecutors are required to bring potentially newsworthy case investigations to the attention of their superiors.  Although one can see the need to keep a superior in the loop of an investigation, there is a downside to this lack of secrecy. As the information is passed up the chain of command, the possibility arises that information of the investigation will leak or the investigating prosecutor may face informal pressure to dispose of the case.

One recent case in Germany is an example of this dilemma. While Chancellor Merkel was engaged in conversations with the Social Democratic Party (SPD) concerning forming a coalition government, a Christian Social Union (CSU) Minister apparently leaked details of an ongoing investigation involving a rising star in the to SPD parliamentarian Sebastian Edathy on charges involving the possession of child pornography. The CSU Minister, Hans-Peter Friedrich, has now resigned as the Berlin Public Prosecutor's Office is investigating the release of the confidential information. It is not yet clear, who leaked the information to Friedrich. However, by the time the police searched Sebastian Edathy's house, they found the remains of what appeared to be a destroyed hard drive. The police have yet to determined who tipped off Edathy.

One conclusion is clear, it may be impossible to completely banish the hand of politics from prosecutorial decision-making.

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