On September 28, Judge Todd Edelman dismissed with prejudice the District of Columbia prosecution against David Hearn for felony destruction of property to the Lincoln Memorial Reflecting Pool. The prosecution became farcical, making the issue solely whether to dismiss with prejudice or without, and my first instinct is to find his choice of with prejudice delightfully lawless.
The opinion begins with this:
Dismissals of criminal cases occur practically every day in Superior Court. … In virtually all these cases, the court enters the dismissal without prejudice, permitting the government to revive the prosecution at a later date should, for example, it locate additional evidence … . Such dismissals recognize the inherent role of the prosecutorial authority in deciding which cases to pursue and afford greater weight to the public interest in allowing the government to investigate and pursue criminal cases than to the interest of criminal defendants in having absolute certainty as to whether a prosecution may resume.
Quite so, and there is much to like about Edelman’s thoughtful approach. The problem, however, as I see it, is that this is not merely some weighing of that alleged public interest. It is a matter of separation of powers. The State wished dismissal without prejudice, meaning it would be free to file again on new evidence in the future, so long as the statute of limitation on the charge had not run. And the decision whether to prosecute is a core executive function. So, unless that charging decision is made in violation of the federal Constitution, it is an arrogation of authority for the judicial branch to usurp it.
Say, for example, a prosecutor brings murder charges on Day1, based largely upon the testimony of Witness1. When it is discovered that Witness1 is almost surely lying, however, the prosecutor moves to dismiss the prosecution. This does not mean she might not wish to bring the same charges again on a later Day2, and whether that is plausible is precisely the charging decision residing within the executive branch. It is most certainly not constitutionally delegated to the judicial branch. And, try as he might, Edelman seems to be making just that sort of a decision. He may be quite certain that “no crime had occurred,” but the constitutional separation of powers says we care not about his thoughts on that matter in the charging instance, but rather about the prosecution’s. Indeed, it strikes me as odd to read the judge’s extended analysis of contestable factual assertions in this regard.
This is not to say, of course, that the executive prosecutorial discretion—albeit enormous—is entirely unrestrained. There are federal constitutional doctrines of equal protection and due process that limit that decision. A prosecutor cannot engage in selective prosecution, deciding whom or how to prosecute based upon a constitutionally protected characteristic or right. A prosecutor cannot engage in vindictive prosecution, deciding whom or how to prosecute based upon exercise of a defense right (but see the entire law of plea bargaining that, alas, operates to the contrary through an effective trial penalty). And a prosecutor probably cannot engage in malicious prosecution, deciding whom or how to prosecute based upon personal dislike, sometimes framed as a ‘class of one’ equal protection claim. As important as these doctrines are, they are terribly underdeveloped. Thus, were one of these doctrines to justify dismissal with prejudice (a remedy question about which the United States Supreme Court has never ruled), it would be doubly excellent for the court to invoke and explain it—excellent because it could be the just result on the facts, and excellent because it could lead to further development of an underdeveloped jurisprudence.
But where there is no such constitutional justification, the charging decision resides within the executive branch. And I know of no Supreme Court holding providing any loosey-goosey exception where a judge feels the chief executive is a tad loony and might therefore bring questionably constitutional charges in the future. That sounds like a question for the future. To Judge Edelman, “Mr. Hearn faces the unique possibility that the government will revive this case – one that it has already announced to be meritless – based on political pressure brought by the President of the United States upon his subordinate officers.” Again, if, say, new charges are brought and the claim is malicious or vindictive prosecution—or if one wants to argue these charges were malicious or vindictive—that would be a constitutional matter. But to claim that the elected chief executive might later bring such charges seems like poor grounds on which to rule now. Subordinates are, after all, subordinate, and it has never struck me as odd (albeit it apparently has to some others) that the elected chief executive would exercise core executive functions like charging discretion. It seems Edelman thinks any future prosecution would inevitably, necessarily be malicious, a rather extreme claim, and one surely not proven—imagine, for example, subordinates of our next, different President file these charges on rather different evidence that has then come to light.
So, Judge Edelman’s decision may have been lawless, and judicial arrogation of power is a real problem—because every arrogation of power is a real problem. As the Fifth Circuit’s Judge Ho has noted, “there’s a reason why there are jokes about God wishing that he was a federal district judge,” and it’s no good answer that, ‘well, I stole the power because that guy is exercising it really poorly!’
All this said, my instinct is to find the decision delightfully lawless because, well, this prosecution really was such a fiasco, so the outcome for Mr. Hearn seems so obviously correct. Can we have a jurisprudence of such delight?
Is it merely because, perhaps, there were constitutional grounds for such dismissal… in which case, yes, we wish they were better articulated and developed, but at least we reached the right result without real harm? Am I underplaying the clear meaning of the Congressional rules of procedure in this instance, meaning there was a better ground for dismissal with prejudice than I have claimed? (I don’t think so—I find nothing of real help in the language of Superior Court Rule of Criminal Procedure 48(a)(2)—but if we had a genuine legislative input, it would put the executive power at its minimum even within its sphere. And I do agree the Supreme Court’s opinion in Rinaldi v. United States, 434 U.S. 22 (1977), leaves much to be desired.)
Is it delightful because we rather desperately need better control over prosecution, and if we can’t effectively find it in ‘the people’—who play no role in the mine run of criminal prosecutions—we’d like it to somehow find its place in our judges?
Or is it delightful merely because the only thing that makes a human ‘rule of law’ palatable is, all irony accepted, a now-and-again failure to comply?
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