Prosecutors face choices when not pursuing a case

Government has wide discretion in deciding whether to file charges

By Dan Shaw
The Daily Record Newswire

MILWAUKEE — Ozaukee County District Attorney Adam Gerol’s job often makes him unpopular.

“Over 26 years,” he said, “I’ve been screamed at more times than I can count.”

As the man who has to tell alleged victims he will be dropping charges against the person they’ve accused of a crime, he understands where the anger comes from.

“You are dealing with somebody who has been violated, and I know they have been violated,” he said. “And they want you to hold someone accountable in court.

“[But] sometimes the answer is ‘no.’”

Gerol said his primary interest is in seeing justice served, but sometimes the evidence is too thin to justify proceeding. That is especially true, he said, in cases of sexual assault, when a prosecutor often has nothing more than an alleged victim’s version of events to pit against a suspect’s version.

In one recent case, about which Gerol declined to provide details, a college student responded to his decision with resignation.

Gerol said he believed the young woman’s story of sexual assault but decided her behavior, drinking to excess and making certain remarks at a local bar before the alleged crime, would place too much doubt in jurors’ minds.

“When you are laying it out there, it’s hard for people to get angry if you are being honest,” Gerol said. “That type of reasoning resonates with people.”

Informing an alleged victim of dropped charges is one of the hardest parts of the job, he said.

“We do hear from people a lot of times when we choose to not issue charges,” Gerol said. “Sometimes they understand. Sometimes they don’t.

“But it’s our obligation to tell them what we are thinking and why we came to that conclusion.”

Prosecutorial politics

Wisconsin’s prosecutors have faced outcry when dropping cases, but they also have been accused of pursuing cases for the wrong reasons.

For example, a story published by The Wall Street Journal on Nov. 16 suggested that political motives are driving an ongoing investigation into whether conservative groups operated illegally during the 2011 and 2012 campaigns to recall Gov. Scott Walker and other elected state officials.

The investigation is being conducted in accordance with Wisconsin’s John Doe law, which is meant to keep the names of those who have come under suspicion out of the headlines while law enforcement officials try to amass evidence needed to make arrests and press charges. In keeping with those rules, the prosecutors in the John Doe case have declined repeatedly to respond to inquiries about their motives.

But Ed Fallone, a Marquette University law professor, said those who think politics can make lawyers overzealous actually have it backward. In general, he said, prosecutors become more cautious when they are aware that every decision they make will be seen in a political light.

“They know these are sensitive matters,” Fallone said. “That’s why they tend to have a very high standard. Unless there is some very clear evidence, they are less likely to bring these cases forward.”

Sheboygan County District Attorney Joe DeCecco and Bob Donohoo, a former Milwaukee County assistant district attorney, said they have no firsthand knowledge of a prosecutor either pursuing or dropping a case for political reasons.

The law gives investigation targets at least one protection against abuses of prosecutorial discretion, Donohoo said. People can allege “selective prosecution” if they can show that prosecutors are pursuing charges against only particular defendants while ignoring others who might reasonably be suspected of committing the same crime.

The difficulty then becomes producing evidence of malicious intent, he said. A defendant not only has to show unfair discrimination has occurred, but also prove the discrimination was intentional, Donohoo said.

“Absent that, there is no other real way, once a case has been started, to make the state drop it,” he said, “as long as there is probable cause.”

Wisconsin, like many states, gives prosecutors wide discretion to decide which types of cases are worth pursuing and which should be dropped. For alleged victims who are unhappy with the decisions, there is little recourse.

Gerol, who is president of the Wisconsin District Attorney’s Association, said state law allows alleged victims to petition judges for a review of a prosecutor’s decision to drop charges. If the judge believes the case should have been pursued, another prosecutor can be called on.

But then that lawyer has to agree to take the case, Gerol said. Most of the time, a second review of the evidence merely confirms the soundness of the first prosecutor’s decision.

“We have done it for other counties maybe three or four times,” he said. “We say we are willing to look at something, and we have a good look. But we’ve never charged.”

The rules governing prosecutorial discretion in Wisconsin were set, in part, by a 1984 case in which two Green Bay Packers players were accused of assaulting a dancer in the dressing room of a Milwaukee nightclub. When the Milwaukee County district attorney declined to press charges, the alleged victim sought to have a judge intervene.

The case went to the Wisconsin Supreme Court. The justices, reasoning that district attorneys are part of the executive branch of government, ruled that a violation of the separation-of-powers doctrine would occur if judges were allowed to file a criminal complaint that had been rejected by a prosecutor.

The resulting power can be more of a curse than a blessing, prosecutors said. Sheboygan County District Attorney Joe DeCecco said prosecutors in many ways are the gatekeepers to the entire justice system.

“Nothing gets into court until we charge it, period,” he said. “The police can do all the investigation they want. Legislators can pass all the laws they want.”

DeCecco said he and his staff members self-police their reasons for dropping charges to avoid missteps that would mar the office’s reputation. If a scandal arose concerning prosecutorial discretion, he said, it probably would come from a prosecutor’s citing a lack of time as the reason for dropping a case.

“We have sometimes asked, ‘Why am I not charging this particular crime?’” DeCecco said. “‘Is it because I can’t give this case the attention I need?’ That hasn’t been the basis of the decision yet. But we are desperate for help here.”

A study this year by the Wisconsin State Prosecutors Office found that 215 more prosecutors are needed to handle the number of cases county district attorneys’ offices across the state are asked to take on. The shortage is spread unevenly among offices: Milwaukee County has 96 percent of the prosecutors it needs, while Sheboygan County has 49 percent, according to the report.

When prosecutors decline to pursue a case, Gerol said, they most often do so because they are not confident they can prove beyond a reasonable doubt that a suspect committed a crime.

Prosecutors are allowed to pursue charges against someone whom they merely have probable cause to believe is guilty. But they would be foolish, Gerol said, to continue in a case that is destined to fall short of convincing a jury beyond a reasonable doubt.

Prosecuting with insufficient evidence wastes the public’s money and staff members’ time, he said.

The alternatives are unsatisfactory, as well, however, said Bob Donohoo, a former Milwaukee County assistant district attorney. Prosecutors who lack time sometimes arrange plea bargains sooner than they would have otherwise, especially in cases involving minor crimes, he said.

“You enter into a negotiation,” Donohoo said, “you wouldn’t have before.”

When state lawmakers in 2010 considered further reducing staffing levels at DeCecco’s office, he threatened to drop all misdemeanor cases save those involving domestic violence. Fortunately, he said, lawmakers backed away from the plan, which was meant to conserve money, and DeCecco never made good on his threat.

But the need for more employees means a certain amount of prioritization has to take place, he said. That’s especially true in allegations of white-collar crimes, which often involve “a paper chase,” DeCecco said. District attorneys, he said, have to think twice before pursuing a case that could tie their staff members up for months.

Marquette University law professor Ed Fallone said white-collar crime is underprosecuted as a result.

“Especially if you look at the economic impact of white-collar crime,” he said. “Both in the devastating effect it can have on people’s life savings if it’s embezzlement, or in undermining their faith in government, they can cause a great deal of harm.”

When tough choices have to be made though, Gerol said, most prosecutors set a priority on prosecuting crimes that are considered particularly heinous: homicides, rapes and child abuse. Such cases also are among the hardest to explain if they are dropped.

But when the facts of the case are not strong enough, there is little to be done.

“We are looking at and assessing the hundreds or thousands of cases we have seen play out in court,” Gerol said. “So you have a sense of what will work and won’t work.

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