Discretion's Disgusting Results

Prosecutors hold the key to equitable charges against criminal defendants. They decide when to bring a case and when to drop charges, how and whether to prosecute, and what level of charges and sentences to pursue. And, in our current system of criminal injustice, they should be scrutinized for their choices.

As Suffolk County Assistant District Attorney Adam Foss described in a recent TED Talk, we rarely talk about the prosecutor when we talk about criminal justice reform. Rather, we complain about police, sentencing laws, and prison. But, as Foss further explains, prosecutorial power is “virtually boundless.” And for years this discretion of prosecutorial power has resulted in a disgusting amount of poor black and brown men, and increasingly women, going to prison with unconscionable prison sentences.

For example, in 1998, I was 17 years old when I–along with two other black teenagers from Chicago, Dimitri Henley and Rovaughn Hill–was falsely accused of sexually assaulting a white woman after attending a college party. Unfortunately, this case was no different than the cases that often arise on college campuses. The only difference, which was the biggest difference, was the race of the accused and the accuser. A month after this party, the prosecutor decided to bring sexual assault charges based solely off an inconsistent and unbelievable accusation. This allegation was not only false, it was supported by nothing and completely undermined by statements from alibi witnesses that both the police and the prosecutor were aware of from the very beginning.

Henley and I were unable to afford an attorney, so the court appointed us one while Hill’s family put up their house to secure a paid attorney. The case was ultimately severed, and Henley and I were convicted at trial after two ill-prepared court appointed attorneys failed to investigate the case or call any witnesses. Meanwhile, Hill’s attorney hired an investigator and prepared for trial by locating a crucial alibi witness whom the police had initially interviewed but failed to turn over his full statement.

After the discovery of this witness’s statement, the prosecutor correctly used his discretion and filed a motion dismissing all charges against Hill. At the time the charges were dismissed against Hill, Henley and I had been incarcerated for close to a year and fully expected for the prosecutor to file a motion to dismiss our case or at the least join in a motion for a new trial to present the evidence that supported our innocence. After all, this was the same case, same false accusation, and ultimately the same alibi witness that would free both Henley and I almost a decade later.

The prosecutor never used his all-important power of discretion to throw out our convictions. Instead, the prosecutor took the ridiculous stance that it wasn’t his fault that the alibi witnesses weren’t presented at our trial. Ultimately, the Wisconsin Innocence Project took on my case and the prosecutor used his power of discretion almost 10 years later todismiss all charges against me.

Due to a procedural issue, Henley was barred from bringing his claim within the statute of limitations. This meant that the only way for Henley to have his case overturned with all charges being dismissed was for the same prosecutor who dismissed the charges against Hill, and then me close to 10 years later, to use his discretion to do the right thing.

Inexplicably, the prosecutor declined to do so. The prosecutor is now a judge sitting in the same seat as the judge who presided over my wrongful conviction, Hill went on to have a career in the armed forces, I went on to graduate from law school, and Henley has a felony record and is required to register as a sex offender. Henley, the father of two daughters under the age of three, can’t even take his kids trick or treating or pick them up from daycare without the sex offender registry rearing its ugly head. That’s not discretion―that is downright disgusting.

Now for those who read this and think “here we go with the race card again,” let me counter that by reminding you of the Duke lacrosse case. That case had strikingly similar circumstances with strikingly different results because of one important difference―the accuser was black and the accused were three wealthy white kids.

Would it help if prosecutors better represented the people they served? It’s worth examining. Last year, a Women Donors Network’s Reflective Democracy Campaign analysis showed that a startling 95 percent of elected prosecutors in the U.S. are white and 79 percent are white men. Keep in mind that the criminal justice system disproportionately incarcerates people of color at a disgusting rate. People of color compose roughly 30 percent of the U.S. populationbut represent 60 percent of the prison population.

In my case, other than the judge’s robe and the lawyer’s suit, the defendants were the only things of color that were visible at my trial. Change in the criminal justice system starts with equality from within. Until then, discretion will continue to have a disgusting result.