Indictment Without A Crime, Prosecutors Without Shame
Sept. 1, 2015 (Mimesis Law) — It only took four days for the State of Georgia to change its mind from indicting recently retired judge Cynthia Becker to sheepishly asking for a dismissal. According to the Daily Report, the presiding judge was incredulous:
I’m not saying you’ve committed a crime,” [Judge] Green said to [prosecutor] White, according to a transcript of the conversation. But, the judge added, “It seems pretty close [to] that when you’re threatening a criminal prosecution in order to get an agreement the JQC could not get absent that criminal prosecution.”
Judge Green was right to be suspicious. Judge Becker was accused of false swearing to a panel of the Judicial Qualifying Commission (who reviews judicial misconduct). That crime requires that a witness falsely swear under oath in a non-judicial proceeding.
Immediately after the indictment, the prosecutor sought a bench warrant to put the judge in custody, rather than letting her surrender herself. Standard procedure, he said—certainly not to humiliate the judge. Then he dismissed the charges as soon as the judge agreed not to seek senior judge status in conjunction with the JQC investigation. Asides from all that, there was only one problem with the charge: Judge Becker was never placed under oath.
In fact, there was no evidence to show that Becker’s conversation with the JQC was anything but an “informal” discussion. So what did the prosecutor tell the grand jury to get that indictment? One thing’s for sure, he doesn’t hold himself to blame.
The criminal case against Becker, he contended, was “handled as any other criminal matter would be. The grand jury made the decision … which is whether or not probable cause existed to believe a crime had occurred.”
The prosecutor assured the judge: “If you believe I’ve committed a crime, your honor, I will be happy to surrender myself to the sheriff.” Yes, surrendering yourself is much more dignified than being arrested at home.
But the prosecutor had little to fear. Prosecutors don’t get their cases “handled as any other criminal matter would be.” In Georgia, when a district attorney embezzles money from the district to give to his secretary and her family; perjures himself at trial; distributes video of teenagers having oral sex until the US Attorney warns him it is child pornography; arrests and charges a defense attorney for accepting a fee from a defendant; and sexually harasses his subordinates by throwing quarters at their cleavage, the end result is resignation, an agreement not to prosecute, and a new job in another county.
This is not to say that Judge Becker is widely beloved by the legal community, or blameless in this particular case. She implicitly assented to a negotiated sentence for a witness in exchange for his truthful testimony, then changed her mind after the trial and gave him a year in jail without giving him a mandatory appeal bond when he requested it. The Court of Appeals reversed, and Becker responded, in a fit of pique, by reversing the convictions of the two co-defendants the witness had testified against, another decision that was swiftly reversed.
But we don’t typically hold judges accountable in this way for bad legal decisions. In fact, the Georgia JQC explicitly says on its web page that judicial misconduct does not include legal rulings. The freedom to make potentially bad legal rulings was the basis of the Supreme Court’s decision not to hold a judge accountable for forcibly sterilizing a disabled girl.
And if failure to give appropriate bond was really such a big deal, we wouldn’t be standing idly by as tens of thousands of indigents charged with minor non-violent offenses languished in county jails. We would be moving to remove the judges whose ruling forced them to remain there.
What should be addressed, but never will be, is that a prosecutor sat with a captive audience of grand jurors and forgot to tell them that an essential element of the crime charged was missing, that no oath had been sworn. The defense attorney was denied the opportunity to speak to them because, the prosecutor assured him, the grand jury had “denied [his] request.”
The prosecutor then used that newly-obtained indictment as leverage to force the judge not to fight a JQC investigation that sought to punish her for abrogating the State’s sacred right to bribe witnesses for their testimony. If judges can withhold plea deals after a witness has testified, then the State’s offer of lenity will be too untrustworthy for reliance.
Every time a measure is discussed to curb prosecutorial or law enforcement abuse, the same tired old phrases gets trotted out. We don’t want to “chill” prosecutors by holding them accountable for their actions. We could “open the floodgates” and put prosecutors in constant fear that they could get in trouble for abandoning their duties under the law.
But if a prosecutor feels this unafraid to bring a laughably insufficient case against a well-represented former Superior Court Judge, what hope do the rest of us have? Maybe it’s time to open the floodgates, just a hair.