In The Justice System, Prosecutors have an enormous amount of discretion in a criminal case. As a former prosecutor in the State of New York, and the Federal System in Detroit, I had the ability to decide who should be charged with a crime, what felony and misdemeanor charges should be filed, and when charges would be filed. Like all prosecutors, I also had the ability to negotiate plea bargains, dismiss charges, and recommend downward departures at sentencing. However, prosecutors cannot engage in conduct that amounts to selective or vindictive prosecution. For ethical prosecutors, this is not a problem. Unfortunately, some prosecutors cross the line. A recent google search for "prosecutorial misconduct cases" yielded over 150,000 results in .28 seconds.
Selective prosecution occurs when the prosecution is based on a defendant's race or religion, or some other arbitrary reason. Selective prosecution claims are based on equal protection requirements; therefore, to successfully argue selective prosecution the defendant must show that the prosecution had a discriminatory intent and a discriminatory effect (i.e. "a credible showing of different treatment of similarly situated persons"). This is a heavy burden for a defendant to meet. Courts will presume that the prosecution did not violate the defendant's equal protection rights.
Vindictive prosecution occurs when the prosecution uses criminal charges to punish a defendant for exercising legally protected constitutional or statutory rights in violation of the Due Process Clause. When there is "a reasonable likelihood of vindictiveness," the courts presume that the prosecution violated the defendant's due process rights. To overcome the presumption, the prosecutor must present objective evidence to show that the prosecution was proper.
A fundamental cornerstone of The Justice System is that prosecutors seek justice and obey the law themselves. When they do not, the tenuous balance between the government's power and individual liberty is threatened to the core. Fortunately, our system also provides for competent and dedicated defense counsel to ensure a criminal defendant's rights are protected and exercised.
Therefore, if you or a loved one is involved in the criminal justice system, or you believe the prosecutor engaged in vindictive or selective prosecution, it is important that you contact an experienced Michigan criminal defense attorney today, regardless of whether you are in Detroit, Troy, Sterling Heights, Rochester Hills, Pontiac, Southfield, Royal Oak, Flint, Kalamazoo, Lansing, Grand Rapids, Monroe, Ann Arbor, or any other Michigan community.