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Judge can’t deny motion to dismiss


“The district judge simply disagrees with the Justice Department’s exercise of prosecutorial discretion. The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.”

Hon. Richard A. Posner Seventh Circuit Court of Appeals

A federal judge may not refuse to dismiss a charge and order a special prosecutor to prosecute it, the Seventh Circuit held on Sept. 16.

Kenneth Bitsky, a police officer, was charged in the Western District of Wisconsin with one count of deprivation of civil rights under color of law, and two counts of obstruction of justice.

According to the indictment, Bitsky assaulted an arrested person, tried to induce another officer to write a false arrest report justifying Bitsky’s use of force, and threatened another officer in an effort to prevent her from informing on him.

The government and Bitsky made a plea agreement under which he would plead guilty to one of the obstruction of justice counts and the government would dismiss the other two counts.

District Judge John C. Shabaz rejected the agreement pursuant to U.S.S.G. 6B1.2(a) on the ground that the one count of which Bitsky would be convicted if the agreement were accepted did not reflect the gravity of his actual offense.

Bitsky decided to plead guilty to the one count, even though he no longer had the protection of a plea agreement. Shabaz accepted his plea and, after denying him an acceptance-of-responsibility deduction pursuant to U.S.S.G. 3E1.1 (which the plea agreement had included), sentenced him to 16 months in prison, the top of the guideline range without such a deduction. (With a deduction, the sentencing range would have been 6 to 12 months. If convicted of the civil rights count, the sentencing range would have been 24 to 30 months.)

The government then moved to dismiss the other two counts. Shabaz dismissed the other obstruction of justice count, but refused to dismiss the civil rights count; instead, he appointed a private lawyer to prosecute the charge.

The government asked the Seventh Circuit to issue a writ of mandamus commanding the district judge to dismiss that count as well and to rescind the appointment of the prosecutor. The Seventh Circuit granted the request in a decision by Judge Richard A. Posner.

Separation of Powers

The court acknowledged that no statute authorizes the government to appeal from a denial of the dismissal of a count or case. Nevertheless, the court stated, “we do not think that there can be much doubt that such relief is available by way of mandamus,” citing cases from the Second and Third Circuits that, respectively, allowed such relief, or suggested in dicta it would be allowed.

The court also quoted United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992), for the rule that, “A judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them.”

The court recognized an exception for criminal contempt of court, but found it irrelevant to the case. The court reasoned, “The theory behind the exception is that the judiciary should not be dependent on the executive to assure compliance with its orders; but no judicial order was flouted in this case. In refusing to dismiss the civil rights count against Bitsky, the district judge was telling the government which crimes to prosecute, and, as these were not crimes against the judiciary, in doing so he stepped outside the boundaries of his authorized powers.”

What the court held

Case: In re: United States of America, Petitioner, No. 03-3037.

Issue: Can a judge refuse to dismiss a count of an indictment based on public policy considerations?

Holding: No. The executive branch has sole power to decide which charges to prosecute and which to dismiss.

The court
also acknowledged that Rule 48(a) of the Federal Rules of Criminal Procedure requires leave of court for the government to dismiss an indictment or a single count.

The purpose of the Rule, however, is to protect a defendant from the government’s harassing him by repeatedly filing charges and then dismissing them before they are adjudicated.

The court found no such purpose implicated in this case, however, where both the defendant and government wanted the civil rights count dismissed with prejudice.

The court concluded, “The district judge simply disagrees with the Justice Department’s exercise of prosecutorial discretion. As he explained in his response to the petition for mandamus, he thinks the government has exaggerated the risk of losing at trial: ‘the evidence was strong and conviction extremely likely.’ The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.”

The court further acknowledged “speculations” in some opinions that a judge could deny a motion to dismiss a criminal charge even though the defendant had agreed to it. Those cases state that a motion should be denied if it is in bad faith or contrary to the public interest, such as where “the prosecutor appears motivated by bribery, animus towards the victim, or a desire to attend a social event rather than trial.”

Such suggestions notwithstanding, the court found no actual case upholding a denial of a motion to dismiss on such a basis.

The court concluded, “That is not surprising. The Constitution’s ‘Take Care’ clause (art. II, § 3) places the power to prosecute in the executive branch, just as Article I places the power to legislate in Congress. A judge could not properly refuse to enforce a statute because he thought the legislators were acting in bad faith or that the statute disserved the public interest; it is hard to see, therefore, how he could properly refuse to dismiss a prosecution merely because he was convinced that the prosecutor was acting in bad faith or contrary to the public interest.”

The court noted there are some limits on the powers of the executive branch in prosecution, such as not basing prosecutorial decisions on racially discriminatory grounds. The court found, however, that such limits derive from the Constitution, and do not include “bad faith” and “against the public interest.”


Seventh Circuit Court of Appeals

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Case Analysis

The court added, “Paradoxically, the plenary prosecutorial power of the executive branch safeguards liberty, for, in conjunction with the plenary legislative power of Congress, it assures that no one can be convicted of a crime without the concurrence of all three branches (again, criminal contempt of judicial orders constitutes a limited exception). When a judge assumes the power to prosecute, the number shrinks to two.”

Accordingly, the court concluded that the judge had no authority to refuse to dismiss the charges.

Special Prosecutor

The court also concluded that, even if a judge could deny a motion to dismiss for bad faith or for public policy reasons, it could not appoint a special prosecutor.

The court reasoned, “Presumably an assistant U.S. attorney who accepts a bribe, wants to go on vacation rather than conduct a trial, etc., is acting alone rather than at the direction or with the approval of the Justice Department, and a different assistant U.S. attorney would continue with the prosecution.”

Finally, the court added that, even if a judge could appoint a special prosecutor, “a judge could not possibly win a confrontation with the executive branch over its refusal to prosecute, since the President has plenary power to pardon a federal offender.”

Accordingly, the court granted the government’s petition and ordered Shabaz to grant the motion to dismiss and vaca
te the appointment of the special prosecutor.

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David Ziemer can be reached by email.

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