Wednesday, August 24, 2011
The New York County District Attorney’s Office, in moving to dismiss the case against Dominique Strauss-Kahn, attempted to seize the high ground. Rather than merely stating that it could not prove the defendant guilty beyond a reasonable doubt, as it invariably does in motions to dismiss and as its motion persuasively demonstrates, the prosecution justified its position on the grounds that it was ethically bound to dismiss the case because it was not convinced of the defendant’s guilt. "If, after a careful assessment of the facts, the prosecutor is not convinced the defendant is guilty beyond a reasonable doubt, he or she must decline to prosecute," said District Attorney Cyrus Vance Jr. That position, however laudable, is not the standard set forth by either the American Bar Association Standards on the Prosecution Function or the New York State Rules of Professional Conduct.
In its written motion, the prosecution contended (without citation to policy statements, ethics rule, case or statute), that its position reflected the policy of "felony prosecutors" in New York County "for generations." Defense practitioners, however, would dispute that, frequently having been told by prosecutors in New York County (and elsewhere) that it does not matter what the prosecutor personally believes, but rather "that’s what juries are for."
As I wrote in an earlier blog piece, here, the American Bar Association Standards for Discretion in the Charging Decision (Standard 3-3.9) do not preclude a district attorney from prosecuting a case in which he is not convinced of the defendant’s guilt, as long as the charges are supported by probable cause and admissible evidence. Similarly, the New York Rules of Professional Conduct only preclude a prosecutor from going forward if "the charge is not supported by probable cause." N.Y. Rules Prof’l Conduct R. 3(8)(a).
The District Attorney’s pronouncement, whether a new policy fashioned for the Strauss-Kahn case or a reiteration of past practice, is a commendable one. The ABA should reconsider its position allowing a prosecutor to go forward even if he or she does not believe the defendant is guilty.