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Volokh Conspiracy

Should Elected Prosecutor Be Disqualified for Highlighting Pending Criminal Case in Election Fundraising?

That's what a motion in the St. Louis Mark & Patricia McCloskey case argues.


You can see the motion to disqualify Kim Gardner here. I'm not an expert on the legal ethics question here, but here are some quick observations:

  1. Elected prosecutors are, after all, elected officials who must run for office and raise money.
  2. The premise of having elected prosecutors is that prosecutors should be accountable to the people, and the people should consider the prosecutors' accomplishments and stands on prosecutorial decisions.
  3. Prosecutors aren't judges: They are supposed to represent one side in a case.
  4. At the same time, a prosecutor is supposed to be "the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." They must be prepared, for instance, to drop a case when they find evidence that would justify that—something that would be especially hard for a prosecutor to do once she makes a pending case the subject of a fundraising appeal such as this.
  5. This might explain why one of the cases the motion cites, State v. Hohman (Vt. 1980) (overruled by a later case but only as to unrelated matters), calls for disqualification in such situations, reasoning that "The awesome power to prosecute ought never to be manipulated for personal or political profit.

I'd love to hear more, though, from people who have studied the ethical rules governing prosecutors more closely than I have.