prudent prosecutor, The

To the public prosecutor, I say first: Relish your crowded docket; be grateful for the multiple and diverse demands upon your attention. Do not curse your stretched budget, your short-handed staff, or the tide of new cases perpetually lapping at your beach. These constraints help teach you and your staff the fine faculty of judgment. In the conscientious prosecutor's office, the urgency and the variety of ordinary business present competing opportunities, and often on various coordinates of importance. Both selecting a target for pursuit and simply sorting out for prosecution, the harvest of the daily tide afford the prosecutor the obligation of choice. The discharge of that responsibility instructs the public officer that, while all cases standing alone are of prime importance, taken together some must yield to others. Prosecutors frequently use the phrase "the interests of justice;" it is not a purely rhetorical expression. Its discernment is part of the daily job of the prosecutor - and it must be learned the hard way. The art of triage is essential in the development of the sense of justice, it turns out, and no decent prosecutor can survive without it.

As a prosecutor, I counted caseload as a burden. I longed for the freedom to prosecute each case as though it were my only obligation. The burden turns out to be a blessing. A full file cabinet does not dull sensibility and corrupt judgment by the urgency of making dispositions, as I previously believed. It provides the occasion for learning the difficult business of making comparative evaluations. And this, I have come to think, is an important ingredient in the sensible exercise of discretion.97

"The other main remedy for prosecutorial misconduct is public oversight."98 Elected prosecutors may be constrained by public opinion and may be removed from office if too many voters disapprove of their practices.

If election fails, then disciplinary agencies may do the job:

If the ballot, even in the best of democracies, is too remote to be an effective constraint on prosecutorial discretion, administrative remedies are still available. Every self-respecting government office - and prosecutors are nothing if not self-respecting - has some mechanism for integrity review, Admittedly, reliance on such internal controls is a little like relying on the bar to "police itself;" it risks the designation "naive." But for one skeptical observer, at least, this is the place to put some attention and energy to work. Let's make administrative control a serious undertaking.100

3. PROFESSIONAL DISCIPLINE

a. Findings of Misconduct

The debate is ongoing whether the discipline of prosecutors is "lax."101 Review of prosecutors by disciplinary agencies is important because their professional conduct is unlikely to receive full review in courts of law. Prosecutors possess absolute immunity for activities "intimately associated with the judicial phase of the criminal process" and qualified immunity for investigative functions (including advising the police).102 Absolute immunity applies to prosecutorial advocacy while qualified immunity applies to investigative or administrative acts.103 Some courts have ruled that decisions whether to prosecute or to initiate a prosecution without probable cause are protected by absolute immunity."104