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In the world of Angela J. Davis, prosecutors are not automatically the good guys, not automatically the white hats. In fact, she distrusts many of them. Lots of public defenders and defense lawyers regularly suspect the actions and motives of prosecutors, so Davis, formerly director of D.C.’s Public Defender Service, is no lone renegade. But many of those defense bar critics keep their suspicions to themselves. Davis, on the other hand, decided to go public, in book form. At times in Arbitrary Justice: The Power of the American Prosecutor, Davis, who teaches criminal law and criminal procedure at American University’s Washington College of Law, approaches shrillness on the topic of the misbehavior of local and federal prosecutors. But the evidence she presents — primarily through cases she worked, anecdotes from fellow lawyers, and appellate court rulings — makes it clear why Davis feels anger, and thus cannot always contain herself. Certainly, her overall theme — that the power of prosecutors is considerable and untrammeled — is impossible to dispute. Although she couldn’t have predicted it, Davis’ timing is impeccable. The misbehavior of Durham County (N.C.) District Attorney Michael Nifong in the Duke University lacrosse case, combined with the realization that U.S. attorneys across the nation must operate in a politicized environment, demonstrate the fallacious public perception of prosecutors as public servants who care only about protecting the community from the criminal element. Davis (who is not the 1960s civil-rights activist) emphasizes what even most journalists and lawyers writing for lay audiences about the criminal-justice system fail to understand or choose to ignore: that prosecutors have the power to do whatever they please without fear of punishment. If prosecutors fail to charge an alleged perpetrator with a crime, neither the alleged victim nor anybody else in the community can find a productive avenue for complaint. At the other end of the spectrum, prosecutors escape punishment for overcharging defendants. In the most damaging scenario of all, prosecutors filing a criminal charge against somebody who, it turns out, is innocent, escape civil and criminal liability for their decision — even when investigation suggests they violated procedure by withholding exculpatory evidence. The prosecutors in the Duke University lacrosse case, for example, knew that the alleged victim of rape could not identify her supposed attackers and had changed her account over and over. Yet they purported to believe her week after week, casting shadows over several dozen student-athletes, until finally the flimsy “case” fell apart. During her tenure at the Public Defender Service, Davis says, “I noticed that prosecutors held almost all of the cards, and that they seemed to deal them as they saw fit. Although some saw themselves as ministers of justice and measured their decisions carefully, very few were humbled by the power they held. Most wanted to win every case, and winning meant getting a conviction.” The documented number of wrongful convictions in local and federal jurisdictions across the United States shows the extreme consequences of placing winning above justice. Even when the criminal justice system works to convict the guilty, Davis warns that the combination of unchecked prosecutorial discretion combined with closed-door dealings makes it impossible for the citizenry to accurately evaluate local district attorneys. That lack of evaluation leads to uninformed voters — an unhappy state of affairs on Election Day, which for most local prosecutors occurs once in four years. Take plea bargaining, which allows prosecutors to act simultaneously as judge and jury away from public view. Davis explains how prosecutors sometimes offer attractive or unattractive plea bargains based on factors that should be irrelevant, including “a particularly good or bad relationship with the defense attorney”; intense media attention to a high-profile case; or the race or class of the victim and the defendant. Because of their power, prosecutors should be more accountable than any other category of public official, Davis says. Instead, “the judiciary, the legislature and the general public have given prosecutors a pass. Prosecutors’ power and discretion have not been reduced, even when their decisions have produced grave injustices in the criminal-justice system.” Frustrated by the lack of change, Davis considers prospects for reform. Some combination of a specific ethics code for prosecutors enforced by state bar associations, regular effective scrutiny by journalists, realistic characterizations on television dramas such as “Law & Order,” and voters who take their citizenship responsibilities seriously could make a difference. But, given the long history of untrammeled prosecutorial discretion, Davis is pessimistic that positive change is within reach.
Journalist Steve Weinberg directed a national study of prosecutorial misconduct under contract to the Center for Public Integrity in Washington, D.C. The study, published in 2003, is mentioned briefly in the book.

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