*This post is part of ACSBlog's Symposium Recognizing Black History Month.
Prosecutors hold the key to equitable charges against criminal defendants. They decide when to bring a case and when to drop charges, how and whether to prosecute, and what level of charges and sentences to pursue. And, in our current system of criminal injustice, they should be scrutinized for their choices.
As Suffolk County Assistant District Attorney Adam Foss described in a recent TED Talk, we rarely talk about the prosecutor when we talk about criminal justice reform. Rather, we complain about police, sentencing laws, and prison. But, as Foss further explains, prosecutorial power is “virtually boundless.” And for years this discretion of prosecutorial power has resulted in a disgusting amount of poor black and brown men, and increasingly women, going to prison with unconscionable prison sentences.
For example, in 1998, I was 17 years old when I–along with two other black teenagers from Chicago, Dimitri Henley and Rovaughn Hill–was falsely accused of sexually assaulting a white woman after attending a college party. Unfortunately, this case was no different than the cases that often arise on college campuses. The only difference, which was the biggest difference, was the race of the accused and the accuser. A month after this party, the prosecutor decided to bring sexual assault charges based solely off an inconsistent and unbelievable accusation. This allegation was not only false, it was supported by nothing and completely undermined by statements from alibi witnesses that both the police and the prosecutor were aware of from the very beginning.
Henley and I were unable to afford an attorney, so the court appointed us one while Hill’s family put up their house to secure a paid attorney. The case was ultimately severed, and Henley and I were convicted at trial after two ill-prepared court appointed attorneys failed to investigate the case or call any witnesses. Meanwhile, Hill’s attorney hired an investigator and prepared for trial by locating a crucial alibi witness whom the police had initially interviewed but failed to turn over his full statement.
After the discovery of this witness’s statement, the prosecutor correctly used his discretion and filed a motion dismissing all charges against Hill. At the time the charges were dismissed against Hill, Henley and I had been incarcerated for close to a year and fully expected for the prosecutor to file a motion to dismiss our case or at the least join in a motion for a new trial to present the evidence that supported our innocence. After all, this was the same case, same false accusation, and ultimately the same alibi witness that would free both Henley and I almost a decade later.