Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
We've got a prosecutor in Macomb County, Michigan who is finding himself in some serious controversies. Eric Smith has already attracted national attention by charging an HIV-positive man under a state bio-terrorism law for biting a neighbor after the neighbor allegedly attacked him and started beating him up. We've been all over that case at the Michigan Messenger.
Now he's in some potential hot water for allegedly retaliating against a defendant by turning two misdemeanor charges into four felony charges after the defendant posted a Youtube video accusing the police and the prosecutor of misconduct. And a judge has now ruled that there is sufficient evidence against Smith to proceed in that case, which is highly unusual.
Judge Donald Miller of Macomb County Circuit Court agreed Prosecutor Eric Smith's office may have retaliated and been vindictive against Shawn Johnson, 43, of Mount Clemens, who is charged with four counts of felony resisting and obstructing a police officer. Miller scheduled an evidentiary hearing for Dec. 15 in which four assistant prosecuting attorneys are expected to testify.Miller says in his ruling that although there is no evidence of "actual vindictiveness," he found "there is a 'reasonable likelihood of vindictiveness,'" quoting a U.S. Supreme Court case.
Johnson originally was charged with two misdemeanors, disorderly person and attempted resisting and obstructing police, related to his arrest on Feb. 7, 2008, in Mount Clemens after a police officer said he saw him urinating in a parking lot. The charges were dismissed, refiled, and then dismissed again. They were increased to the four felony counts after Johnson's attorneys released an approximately five-minute video on Youtube and made comments to The Macomb Daily and at least one other publication...
"Defendant's statements were extremely critical of the police and the prosecution," Miller says in his opinion to conduct the hearing. "There is no indication that additional evidence was discovered prior to the authorization of additional charges. Moreover, the prosecution has failed to assert any reason for bringing the heightened charges in the responses to this motion, and instead relies solely on prosecutorial discretion as the justification for the decision."
But here's the problem: Even if Smith is found guilty of retaliation, he likely faces little real legal risk. If Judge Miller ultimately rules that Smith did retaliate against this defendant, it will help the defendant's case and he may well get those heightened charges dismissed. But it is virtually impossible for Smith to face any legal consequences for that retaliation even if the court rules that he did so.
Prosecutors currently have total immunity from civil suits based on actions they take in office. The U.S. Supreme Court is currently considering a case challenging absolute prosecutorial immunity, but even if the court rules in that case that immunity is not absolute it is unlikely that it would affect Smith's immunity in this case because of the very narrow basis of that legal challenge.
It seems to me that prosecutors, because they have such power to destroy lives and because they represent the government, should be held to a higher standard than those they prosecute.
Politics
Comments
Quis custodiet ipsos custodes?
Posted by: abb3w | December 15, 2009 9:25 AM
is there really no mechanism in the US to get rid of creeps like these. I can understand the need for immunity from civil suits- but surely they can be held accountable on a professional basis? A prosecutor in the UK would be sacked immediately for behaving like this.
Posted by: symball | December 15, 2009 9:55 AM
symball-
Though they currently have absolute immunity from civil suits, prosecutors can technically be held accountable through criminal law. But who has to charge them? Another prosecutor, of course. Prosecutors being brought up on charges for their actions while in office are about as rare as dodo birds these days.
They could also be held accountable by bar associations, but I can't think of a single example of it ever happening.
Posted by: Ed Brayton | December 15, 2009 10:09 AM
If I am not mistaken, a court can on its own authority deny any lawyer, including a prosecutor, the right to practice before it. Furthermore, I would think that this would be an ethics violation sufficiently severe for the prosecutor to be suspended or disbarred. What's the situation in Michigan?
Posted by: Bill Poser | December 15, 2009 1:30 PM
Bill, that would again be very rare. Unfortunately, prosecutors are held in such high regard that they are generally considered to be beyond reproach, much like most judges. I've spoken with former prosecutors (who mainly teach these days) and one of the reasons they left the profession was because of the massively inflated egos they were around all the time.
Posted by: Ryan Egesdahl | December 15, 2009 6:13 PM
Ed:
Do private prosecutions not exist in the US?
Posted by: James K | December 15, 2009 11:22 PM
That HIV case is interesting. There has been a ruling that someone with HIV who is on anti-retroviral meds and has an undetectable virus load is not considered “infectious”. Presumably if a person presents themselves as HIV positive to law enforcement, and wants their “bioterrorist weapon” to be neutralized by that law enforcement agency, that law enforcement agency is obligated to provide them with anti-retroviral treatment and testing to bring their virus load to undetectable levels.
I would think that an unrelated third party could file suit against law enforcement for a court to direct them to “neutralize” the “bioterrorist weapons” walking around as HIV infected persons. Since treating HIV outpatient is a lot cheaper than incarceration, it is a no-brainer that law enforcement would have to treat everyone with HIV.
In this prosecutorial misconduct case, if he loses it, then every defendant he or his office ever tries to prosecute in the future will trot this out to impeach the integrity of the prosecutorial process. This will add cost and delay and will result in fewer convictions. The county may find that its criminal justice system works better with a different prosecutor in charge of things.
By allowing it to go to trial, people can be deposed and testimony collected under oath. If the prosecutor lied in submitting documents to the court, those acts are not protected under prosecutorial discretion.
Posted by: daedalus2u | December 16, 2009 1:05 PM