H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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The Absolute Power of Prosecutorial Discretion – Trayvon Martin and The Politics of Charging A Criminal Case

The Duty to Due Justice
What every criminal lawyer knows – defense or prosecutor – is simple. Within the criminal justice system, the prosecutor (DA), not the judge – not the jury – and certainly not the criminal defense lawyer – has the most power.

In other forms of our government – there is a balance of power – checks and balances are written into both the State of Colorado and United States Constitutions by our forefathers. Not so in the criminal justice system. That system was taken almost wholesale from British Empire.

That system: the investigation, the decision to arrest (in this case), the charging decision, the plea bargaining decision, (and with mandatory sentencing laws which remove a judge’s discretion at sentencing), the sentencing decision .. ALL rest with the discretion of the DA.

So when the special prosecutor in Florida’s Martin case decided to charge George Zimmerman with second-degree murder this week in Sanford this week, politically – she may have won the praise from Martin’s supporters across the nation in the short term .. know better. Those of us that spend our lives in the “system” – know that – at least on the evidence we have been given to date – are very skeptical.

The legal standard to make an arrest – probable cause – is just above the lowest standard of evidence in the criminal justice system. Just above “reasonable suspicion,” that quantum of evidence necessary to make an automobile stop – is well below the standard of “proof beyond a reasonable doubt,”

Beyond a reasonable down is the quantum of evidence necessary to obtain a conviction at trial. In my opinion probable cause should NEVER be the basis for making an arrest unless additional evidence is known to the prosecutor sufficient for a prosecutor to believe, in good fatih, that s/he could obtain a conviction at trial.

Once an person has been arrested and then charged, the defendant will find it necessary to retain expensive legal representation or, if s/he can’t afford it (and there aren’t many people who can pay for representation on a murder charge), request a public defender.

It also means iat least temporary incarceration, and can also mean thousands of “wasted” and precious dollars used to post bond to obtain freedom from incarceration during the pending prosecution.

After a charge is made – a preliminary hearing follows on the heals of the arrest – in Colorado – within 30 days. While a judge may dismiss the case at the preliminary hearing – this almost never happens. That is because, believe it or not, the quantum of proof at a PH is – again probable cause – or what is also known as a preponderance of the evidence. Furthermore – and just as unbelievably, the evidence must be interpreted in the light most favorable to the prosecution.

What that means is this… the judge – if there is a direct 50:50 conflict in the evidence MUST find for the prosecutor’s theory of the evidence presented. .. That is one hell of an advantage to the Government.

While the American Bar Association’s Standards for Criminal Justice advises that a prosecutor shouldn’t prosecute a case in which he doubts the defendant’s guilt, .. if he believes there’s enough evidence to establish probable cause, the ABA guidelines state that it’s ethical to pursue a conviction.

H. Michael’s Take

Before a prosecutor should request the arrest of an individual – under any and all circumstances – the prosecutor should believe in his or her case – must be convinced that a jury will find the suspect guilty beyond a reasonable doubt. If a prosecutor has a reasonable doubt concerning the guilt or innocence of a person charged, particularly in a serious felony matter, that case should never be charged. Finally, if all the prosecutor has as evidence in a case he or she is being pressured to charge a suspect – is the minimum quantum of evidence to make an arrest, probable cause, unless new evidence is located – or uncovered – that suspect should remain free.