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Posted on: September 11, 2018

Top Prosecutors from Across Nation Join in Support of Rebuttal on Recent USA Today Opinion Article

PHOENIX— Joining in support for a response to a recent opinion column posted in the USA Today by contributor Glenn Harlan Reynolds ( almost a dozen County and District Attorney’s took issue with the pieces depiction of criminal justice.

After explaining to editors of the paper that the column was as a gross misunderstanding of how criminal procedure actually works and only furthered misinformation about the role of prosecutors in seeking justice, the paper only agreed to print a short letter to the editor instead of the full response featured below. To ensure our communities are informed we wanted to provide an opportunity for the public to read the response in full along with the list of supporters.


With all due respect to Mr. Reynolds’s role in academia, the implicit bias against prosecutors rampant in most academic treatments of criminal procedure shades the description of the plea bargaining process in this country and fails to properly distinguish between federal, state, and local prosecutors. The point about implicit bias is most easily proven by the ridiculous assertion that “the prosecutor’s decision to charge you with a crime (and what to charge you with), which is key to the plea bargain deal, is subject to virtually no constitutional protections at all.” Nonsense. There are a myriad of constitutional protections embodied in our federal and respective state constitutions at “critical stages” in the criminal justice process as discussed in the case of Montejo v. Louisiana, 556 U.S. 778, 786 (2009).

For starters, the 4th Amendment and the Due Process protections of the 5th and 14th Amendments in our federal constitution require evidence relied upon for making a charging decision to be constitutionally obtained. Before formal prosecution can commence, a grand jury or judicial officer must find probable cause that a crime was committed and the defendant committed it. This directly affects what charge(s), if any, to file. The 5th Amendment also protects against being convicted twice of the same offense. These provisions directly impact the decision to charge a crime, any crime, and the resultant likelihood that a conviction can be obtained, which has a direct bearing on the course of plea negotiations. The 6th Amendment protections for a speedy and public trial, to be informed of the charges against a defendant, to be confronted by the witnesses against them and be able to compel witnesses to testify in their favor and to have a defense attorney are all additional rights that have great constitutional weight and impact the charging and subsequent plea process.

Significantly, the United States Supreme Court also does not agree with Mr. Reynolds and recently stated in Missouri v. Frye, 566 U.S. 134, 144 (2012): “To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations.“

Next, the statement that, “When the police search and arrest you, you have a lot of constitutional due process rights, but they’re mostly enforceable only if you go to trial,” Mr. Reynolds may have never heard of pretrial motions or motions to remand a case to a grand jury for a redetermination of probable cause, but these tools for testing the State’s case occur without having to go to trial and are often incorporated into the plea negotiation process. And the 6th Amendment right to counsel “applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel's advice.” Lafler v. Cooper, 566 U.S. 156, 165 (2012).

All of this reflects a gross misunderstanding of how criminal procedure actually works and furthers misinformation about the role of prosecutors in seeking justice. If law school professors get this wrong, it is no wonder the broader public often does not understand it.

Nonetheless, we would agree with him on one point, “[w]e don’t really have a criminal justice system.” The truth of the matter is that we have multiple criminal justice systems. One at the federal level where the various stakeholders are unified at one level of government. Specifically, the investigative, prosecution, defense, and incarceration functions are under the Department of Justice and the trial and appellate courts are in the judicial branch.

However, once you hit the state level, there are 50 different constructs with responsibility divided among various levels of government. The investigative function is predominantly performed at the municipal level by police departments. The prosecution and public defense function is predominantly performed at the county level while the incarceration function is handled by the state. As for the court system, it is generally a state function, too. Now, these generalities are just that. Each state and jurisdiction may have a differing arrangement based on their respective constitution, traditions, and system needs. But the generalities offered by Mr. Reynolds are reckless coming from a law professor. The undersigned would be happy to give him a tour and speak to him sincerely at length about how our charging process actually works.

Bill Montgomery, County Attorney for Maricopa County, Arizona

Jonathan Blodgett, District Attorney, Essex County, MA and President, NDAA

Timothy Cruz, District Attorney, Plymouth County, MA

David A. Escamilla, County Attorney, Travis County, TX 

William Fitzpatrick, District Attorney, Onondaga County, NY

Michael O. Freeman, County Attorney, Hennepin County, MN 

Joshua Marquis, District Attorney, Clatsop County, OR

Nancy G. Parr, Commonwealth’s Attorney, City of Chesapeake, VA

Duffie Stone, Solicitor, 14th Judicial Circuit, SC

Gregory Totten, District Attorney, Ventura County, CA 

Amy Weirich, District Attorney General, 30th Judicial District, TN

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