Q and A on Prosecutorial Discretion

Endorsement and Q & A on Prosecutorial Discretion between attorney Stefan Scholl and Stuart Fenton

Intro: I am very pleased to endorse the candidacy of Stuart Fenton for Emmet County Prosecutor.  As an attorney, I am keenly aware of the crucial role prosecutors play in the administration of justice in America.  As the lawyer for the state, a prosecutor not only represents the interests of the public in court but also has the awesome responsibility of determining the extent to which society will seek punishment against an individual in any given situation.  Elections are critically important, for they give prosecutors the political authority to exercise “prosecutorial discretion”, which is the ability to decide whether or not to bring criminal charges, and what charges to bring, in any given case.  This nearly absolute and unreviewable prosecutorial power serves as the basis underlying the practice of plea bargaining and provides an opportunity to show leniency and mercy in a system where criminal laws are often overbroad and harsh, and mandatory sentencing guidelines unyielding.  Prosecutors are without a doubt one of the most powerful of elected public officials as a result of their ability to wield this awesome power.

For this very reason, it is critically important that society elects prosecutors who have both the experience and sound judgment to properly wield such power.  I believe that Stuart Fenton is uniquely qualified in this regard.  Stuart is a father and a husband, a man of faith and good works whose moral compass is true.  He is a tireless worker, but also isn’t afraid to relax and have fun once in a while. Stu has decades of experience, good common sense and excellent judgment. Perhaps most importantly, Stu is both fearless and unyielding in his thirst for justice for those who have been victimized, especially the most vulnerable among us. 

In anticipation of the crucially important primary election on August 4, 2020, which will determine the Republican candidate for Emmet County Prosecutor, and very likely our next Emmet County Prosecuting Attorney, Stuart Fenton was kind enough to answer a few questions for me on the subject of prosecutorial discretion.

Question: Could you describe in your own words the awesome power wielded by prosecutors in our criminal justice system known as prosecutorial discretion?

Answer: Especially in Michigan, where we really have no Grand Jury system, and prosecutors solely make critical charging decisions, it is so very important to have a Prosecutor with the experience, good common sense, and judgment to properly exercise proper prosecutorial discretion. The general public may not understand the extent to which prosecutors exercise discretion in the decisions they make daily, but this discretion is utilized in virtually everything we do–from deciding whether to charge a case, to what charges to file, to how many counts to charge, to plea bargaining and all the various considerations that go into those decisions, including whether to dismiss a case that is already charged.  These are extremely weighty responsibilities, knowing that you have the very power to deprive someone of their freedom by a stroke of your pen, sometimes for the rest of their lives.  It should never be taken lightly.  Prosecutors must always remember this. 

Question: For those who will vote in the primary election on August 4th, could you explain why you feel you are most qualified to exercise this awesome power?

Answer: I have been in the arena, charging and trying cases before juries, plea bargaining where appropriate, and exercising my discretion and sound judgment for well over 30 years.  I have tried over 30 homicide cases, led a Cold Case Homicide Team, been the Chief Assistant Prosecutor for Emmet County, taught and trained law enforcement and prosecutors throughout the state of Michigan, served as the Emmet Charlevoix Bar Association President, and earned the respect of my fellow attorneys, judges, and law- enforcement officers across the state.  I have handled just about every type of criminal case from start to finish – this includes minor traffic offenses all the way up to the most serious offenses imaginable – gruesome homicides, arson, and the most deviant child sexual assault cases.   As your Chief Assistant Prosecutor in Emmet, and as a Senior Assistant Prosecutor in Kalamazoo, I have been in a leadership position for well over 20 years, making the tough calls, and mentoring less experienced attorneys on making the right decisions.  That’s why law enforcement across the state of Michigan endorses me.  Please see my website – stuforprosecutor.com for more information. 

Question: What are your views with respect to the practice of plea bargaining, and how would your exercise of prosecutorial discretion underpin your ability to engage in this practice?

Answer: Plea bargaining is one of the most common forms of prosecutorial discretion, and is often misunderstood by the public.  When done properly, plea bargaining is an efficient method of resolving appropriate cases.  When done improperly, it is an abuse of prosecutorial discretion. Some cases are so heinous they ought rarely be plea bargained, such as child sexual molestation, child abuse, serious violent crimes, and certain hard-core drug cases such as delivery of methamphetamine or heroin.  My policy would be to very infrequently plea bargain these types of cases, and only where absolutely necessary. This category of criminal should generally be incarcerated for as long as possible as appropriate punishment and for the protection of our community.

However, sometimes there are valid reasons to strike plea agreements.  Some of these include complications with a case, such as weak evidence, a victim or witness’s unwillingness or inability to testify,  or where the offender is deserving of some leniency because the crime is non-violent, a lack of prior record, remorse and rehabilitation have already been demonstrated,  and/ or at the request of the victim. Where accountability can still be achieved, the crime is not heinous, the victim is satisfied, and justice is still done, this is an efficient and proper way to resolve cases, saving the taxpayers, the court system and the public the extraordinary expense and uncertain outcome of a jury trial.  There are far more cases in the criminal justice system than courtrooms, judges and attorneys, and it is impossible to try every case. Victims should always be consulted and kept in the loop when these decisions are made, and their input taken into consideration.  Throughout my career, victims have been extremely appreciative of the outcomes I have achieved on their cases. 

Improper use of plea bargaining is where a prosecutor is simply “gun shy”, afraid of losing,   and pleads cases down simply to avoid a trial.  That is totally inappropriate. I have a strong reputation among defense attorneys and law enforcement.  Everyone knows I am not afraid to try the tough cases and do not engage in this type of plea bargaining.  Prosecutors must always remember that cases involve human beings, on both sides, and and hat we’re dealing with human lives and liberty.  The paramount concern in any plea offer is that it be a fair deal under all the circumstances, that justice is done, that there be accountability to all concerned,  and that the victim receives justice.

That is why it is essential that your prosecutor have extensive courtroom experience and good common sense to exercise sound judgment in the many crucial decisions involving people’s lives that a prosecutor must make every day.  I’m very proud of my track record both in terms of trials, and appropriate plea bargaining.   You can ask any police officer I’ve ever worked closely with what they think of my professional judgment.  I’m very proud that so many in law enforcement have endorsed me, as you can read on my website under “Testimonials”.

Question: Are there some examples you can give, from your long prosecutorial career, where you decided to show leniency and mercy and did not press charges, or pursued lesser charges, or agreed to a plea bargain, in the interests of justice?

Answer: I can give you many.  I will try and keep them short.  Here are some common scenarios:

1) 1st time drug possession cases with no priors and no evidence of dealing – I will always recommend “7411” treatment, which allows Defendants to have the charges dismissed if they plead guilty and successfully complete probation.

2) Theft of cigarettes from a store.  The Defendant is caught immediately, is remorseful, has no record of any prior offenses, and the property is returned undamaged. I would offer a “delayed sentencing” arrangement, whereby successful completion of short probation will result in the charges being dismissed.

3) Statutory rape – a 17 year old has factually consensual sex with a 15 year old  partner who misrepresented their age as 16 years old. The circumstances  show there was no coercion in any way.  I would let the Defendant plead guilty to a less serious offense of CSC (Criminal Sexual Conduct) and agree that under the Romeo and Juliet provisions of the sex offender registration act, the Defendant would likely not have to register as a sex offender, but would still be on probation, possibly serve some jail time, and have a criminal record.

4) An 18 year old buys a stolen bike from his cousin for $50.  He has no prior criminal or juvenile record and is very remorseful for his actions.  It is even debatable whether he knew it was actually stolen. If I was convinced that he truly didn’t know the bike was stolen, I would simply not charge or dismiss charges.  Otherwise, I would allow him to plead under the Holmes Youthful Trainee Act, which would guarantee that charges would be dismissed so long as he successfully completed probation.

5) 1st time “drunk driving” case where there was no bad driving, no accident, no injuries, no priors, and BAC (blood alcohol content) was low (barely over the legal limit – say a .09) I would reduce the charge to impaired driving, which is less points, less suspension and less fine. 

Question: Are there some examples you can give from your career where you decided that no leniency and/or mercy was warranted, and where you would not agree to plea bargain, and instead decided to take cases to trial to seek the maximum allowable punishment in the interests of justice?

Answer: Many. I am known for being very tough on violent crimes, sex crimes, and hard core drug crimes.  Here are a couple examples:

1) Pedophiles – I had numerous cases here in Emmet County where older men had committed unspeakable sex acts on young children.  They were charged with Criminal Sexual Conduct (CSC) 1st degree – the most serious of all the sex offenses.  Defense counsel repeatedly pleaded with me to give them a lesser charge and let them plead to 2nd or 3rd degree – lesser offenses.  I held strong and was able to obtain pleas straight up to the most serious charge, even knowing they would receive a minimum mandatory sentence of 25 years.  This scenario happened repeatedly.

2) I had a particularly brutal homicide case in Kalamazoo where the night shift manager at a local laundromat was viciously stabbed to death during a robbery in the middle of the night.  It was a purely circumstantial case, but because of the brutality involved, I made no offers.  The case went to trial, we obtained a 1st degree murder conviction, and the Defendant will deservedly spend the rest of his life in prison. The victim’s brother was so grateful that he gifted me an aerial photograph of Jackson prison where he worked as a prison guard which I still proudly display to this day. 

3) My first homicide trial in Kalamazoo around 1994 involved 2 men entering the elderly victims’ home in the middle of the night to steal money from their safe, and during the burglary, stabbed both homeowners to death multiple times. There were no offers; I tried both defendants, separately, and both were convicted, deservingly of 1st degree murder.

3) My oldest Cold Case Homicide occurred in 1975 and we charged it in the year 2000, 25 years later.  Defendant was a 7 time convicted felon serial rapist who was out on parole at the time we arrested him.  He was the most dangerous person I’ve ever prosecuted.  It was also an extremely difficult case given the age, and circumstantial nature of it.  I made no offers because of  the extreme violence used in the murder (victim was strangled and stabbed to death) and the Defendant’s extensive prior felony record.  We went to trial and obtained a 1st degree murder conviction.  This monster will never victimize anyone ever again. As with the others, he will deservedly serve the rest of his life in prison.  These are the type of cases that deserve no leniency; no mercy. 

Question: What role, if any, will politics play in your exercise of the power of prosecutorial discretion?

Answer: None  Politics has no place in the exercise of prosecutorial discretion.  No one is above the law, and the only thing that guides the weighty decision as to whether or not to charge someone with a crime are the facts and the law.  Period.  Now, if there is a conflict of interest, or an ethical issue about charging someone (i.e., close friend, relative, etc.), then there is an easy solution–we notify the Attorney General that there is a conflict, and they appoint a Special Prosecutor to handle the case–taking our office out of it.  The appearance of impropriety is an important factor in making the decision to disqualify ourselves, because we never want to even have the remote possibility of being perceived as making a “political” or biased decision.  An unbiased view of the facts, the law, and whether we believe we have a “reasonable probability of conviction” are the only factors that should govern these critical decisions.  Politics has nothing to do with it, whatsoever. 

Question: We are certainly living in interesting times. As an attorney, I have received numerous calls from clients complaining that the terms of the Governor’s Executive Orders mandating that individuals stay at home except under limited circumstances, along with the guidance interpreting said orders, are confusing, arbitrary, overbroad and an impermissible infringement upon rights guaranteed to them by the Constitution of the United States.  What factors would you take into consideration in making decisions as to whether alleged violators of said Orders should be prosecuted?

Answer:  This is an excellent question.  And thank you for asking. First, my wife is a nurse at McClaren Northern Michigan, so we are acutely aware of the danger this virus poses.  I also know victims who have succumbed to Covid-19 and grieve for them and their families.  As for the powers of the government to impose emergency restrictions on our liberty, the Supreme Court has long held that the government, properly exercising its police power, may temporarily restrict liberties in emergency circumstances in order to protect the health and welfare of its citizens, so long as those restrictions are reasonably related to the actual emergency (they are not arbitrary) and the least restrictive means are used.  There is a delicate balance to be struck between the government’s power to manage crises, and the people’s essential constitutional rights – rights to peaceably assemble, worship, and lawfully engage in work activities to provide for their families. 

In addition, there is a legal conflict between the 2 statutes the Governor has relied on to enact her Executive orders.  One gives her unfettered discretion to unilaterally issue orders for the health and welfare of the citizenry during a crisis, and the other has very specific timetables and requires legislative approval after 28 days, which has not been obtained.  The Courts would have to ultimately decide the interplay between these statutes and whether any executive actions are constitutional.  As of this writing, several lawsuits have been filed recently been filed.  It is my guess that most of the very restrictive measures will be lifted prior to any Supreme Court decision on the issue.  Of course, this puts law enforcement in a very difficult situation.   So, what does this all mean practically in terms of prosecutorial discretion?

The first problem is the use of the term “essential”, in deciding who gets to work and who doesn’t. Good arguments can be made that most all forms of livelihood are “essential”.  When the government tries to draw lines, or pick  “winners and losers” if you will, where does the line get drawn?  Which restrictions are  reasonable and which are arbitrary?  Certainly it would seem more “essential” to be able to buy seeds to plant gardens and feed our families for instance, than to be able to buy liquor, lottery tickets, and marijuana.  I think in the interest of trying to protect us from the pandemic, some vital activities may have been overlooked, and some non-vital activities have been allowed to continue.  I certainly wouldn’t have written the Executive Orders the same way, and it is a fair question as to whether the Governor overstepped her authority in virtually shutting down the entire economy.  The Supreme Court would have to be the decider of that important question.  But, it would fall to prosecutors ultimately in determining how and whether to enforce them. 

So, how does prosecutorial discretion enter in?   As in any case, I would look at all the circumstances of any alleged violation, with wisdom, experience, and common sense in deciding whether a person ought to be charged.  Such factors would include the nature of the conduct, the willfulness of the violation, whether it was ongoing or a one time offense, the actual conduct involved, weather previous warnings had been given, whether it was jeopardizing their or others health and safety, or whether it was employment activity simply meant to earn a living. 

The Governor’s Executive Orders are meant to be preventative, rather than punitive in nature, in order to protect public health.  Therefore, it would not be my intent to try and make criminals out of otherwise law-abiding citizens.  Absent the most egregious violations, endangering the health and welfare of others, it would not be my policy to criminalize violations.   At the same time, governmental officials charged with ensuring public safety must be very cautious in not sending out the wrong message to the community either, thereby encouraging mass disobedience of directives while even if less than perfect, are aimed at protecting the health and welfare of the public.

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