RI-23

April 18, 1989

SYLLABUS

When an assistant prosecutor concludes, following a routine review of a criminal complaint, that although there was probable cause to charge the accused it is unlikely that the defendant can be proved guilty beyond a reasonable doubt at trial, a decision not to prosecute is not prejudicial to the administration of justice.

Acceptance of a $25.00 contribution from an accused's close relative during an election campaign for county prosecutor ordinarily is insufficient reason for a county prosecutor later to abdicate official duties of office absent other circumstances indicating the donation was intended to influence favorable treatment in a particular matter.

Reference: MRPC 3.8(a).

TEXT

A county prosecuting attorney has requested an informal ethics opinion involving the dismissal of an arson case. The decision to institute criminal proceedings charging the respondent with arson of a dwelling house was made by the former prosecuting attorney. During the campaign, leading to the election of the inquirer, the alleged arsonist's father-in-law made a $25.00 contribution to his campaign fund.

The assistant prosecuting attorney for the county was assigned the case for trial. Following a routine review of the arson charge the assistant prosecutor concluded that, although there was probable cause to charge the respondent with the crime of arson, there is "clearly a reasonable" doubt that the accused is guilty and may be innocent. Based on a review of the file and 20 years prosecutorial experience, the assistant prosecuting attorney has recommended dismissal of the case.

The county prosecutor suggests dismissal of the charges against the accused may precipitate an appearance of favored treatment rising to the level of a conflict of interest resulting from the earlier acceptance of the campaign contribution from the accused's father-in-law. The inquirer wishes to know if he should disqualify himself from further involvement in the case and turn complete control over disposition to the assistant prosecuting attorney, or seek to have a Special Prosecutor appointed to take over the case.

Whether or not a special prosecutor needs to be appointed in the circumstances presented is a question of law. The Committee is not authorized to respond to questions of law.

Public prosecutors are bound by all of the legal rules governing lawyers, including the Michigan Rules of Professional Conduct, which impose special responsibilities on prosecuting attorneys. MRPC 3.8(a) and relevant comment state:

"The prosecutor in a criminal case shall:

"(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;"

"Comment:

"A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence . . . ."

The public responsibility of a prosecutor is first and foremost to assure that justice is done and in appropriate cases to vigorously seek a conviction. The public prosecutor has very broad discretion over which charges to initiate and when and how to pursue them. The American system of criminal justice affords the accused the benefit of all reasonable doubts. The Rule clearly states that it is unprofessional for a public prosecutor to institute or continue criminal charges when it is known the charges are not supported by probable cause. In cases where the prosecutor has reasonable doubt concerning the accused's guilt, a decision not to prosecute may be appropriate, notwithstanding there might be sufficient evidence to support a conviction. There is no duty to prosecute all charges the evidence may support. See American Bar Association Standards Relating to the Administration of Criminal Justice.

The office of prosecutor is charged with the responsibility for prosecuting cases within its jurisdiction. This obligation should not be abdicated lightly. The Committee does not believe that the acceptance of a $25.00 campaign contribution received during a general election from a relative of an accused creates a per se conflict of interest requiring recusal of the prosecuting attorney from the decision-making process, absent other circumstances suggesting an attempt to subvert the candidate's loyalty of office if elected. One example might be an unusually large contribution from a close relative of the accused while charges are pending against the contributor's close relative.

In situations where the objectivity of the prosecutor may be questioned, it may be desirable to seek an independent evaluation of the matter from another county prosecutor.