Practical Moral Philosophy for Lawyers
Scene 3: Using Prosecutorial Power
Assistant Prosecuting Attorney Kim Hackett clutched the receiver in her hand, the grip growing tighter as she grew more enraged.  "What do you mean she wasn't there!?", she demanded of the disembodied voice on the other end of the line.  It was a local police officer who was to arrest a college student, Tara Ford, for running a large cocaine ring on a local campus.  Hackett was informed that she was not at her on-campus apartment or her father's home across town.  According to her father, she had gone to Europe.  He'd always planned to send her someday.  "Damnit," Hackett exclaimed, "sit on the houses, just in case she pops up."  She slammed the phone down. 

Tara Ford and her cadre of co-ed dealers had occupied a better part of the past year for Hackett.  Investigation complete, she was ready to swoop down and close the whole mess down and send Ford to prison for a long time.  She even had three of her dealers ready to testify in court against her.  Mr. Ford had thrown a large monkey wrench in the works.  Now Hackett had to remove it. 

She met with the lead police investigator on the case later that afternoon.  Mr. Ford had definitely sent Tara abroad, but he insisted it wasn't to avoid prosecution.  The trip had been in the works for weeks, he claimed, and since she hadn't been arrested yet, he thought Tara was home free.  A bit naive, thought Hackett, but it was hardly enough to justify accessory charges or anything which she might use to come down on Mr. Ford.  Hackett had another idea, however.  She again interviewed the three dealers who had turned on Tara and discovered that some, if not a great deal, of their non campus business came from clients of Mr. Ford, who ran conventions in and out of town.  If that was true, Hackett had a new weapon in her arsenal. 

Under the laws of the state, Hackett could charge Mr. Ford as a part of organized crime, as a racketeer.  Once indicted, the state would seize his assets, thus cutting off Tara's cash line in Europe.  She returned to her office and explained her plan to Dennis Xavier, her assistant fresh out of law school. 

"Do you think we can make the charges stick against Mr. Ford at trial," he asked. 

"I don't know," Hackett pondered, "and at this point I don't really care.  We need to cut Tara off from her funds, that's all that keeps her from coming home.  We can do that after an indictment.  Hopefully, we can squeeze Mr. Ford, which will lead to a capture of his daughter, at which point we can drop the charges against him.  Understand?" 

It would be Xavier's job to sift through all the collected evidence and prepare the indictment itself.  "Uh, I think I do," his voice conveying a sense of uneasiness.  "Can I ask you a question, Kim?" 

"Sure.  What's on your mind?" 

"Well, it seems to me that we are going to indict someone that we have no plan of trying.  We're only indicting him to get to his daughter.  It's like we're using the power of the state to coerce Mr. Ford.  It's almost like blackmail," he concluded sheepishly. 

"That's what this job is about," Hackett replied.  "We are the state, and have the power to force people to do things they don't want to do.  In addition, I have prosecutorial discretion that allows me to do most anything.  I could indict and then release people all day long.  Do you think this is really any different than what we did to get those three dealers on board?", she asked, referring to the threat of long prison terms if they didn't cooperate. 

"But we would have gone to trial if they hadn't rolled, so I think that's different.  How can we go forward against Mr. Ford without hope of getting a conviction?" 

"Sometimes, Dennis, you've got to do unpleasant things to achieve a higher goal," Hackett proposed.  "In this case, our goal is to convict and punish a woman who has dealt out hundreds of pounds of coke in the past three years, hurting dozens of people along the way.  And we should do anything the law allows to achieve that goal.  You don't think I'd do anything illegal, do you, Dennis?", she asked. 

He knew the answer, of course.  "No, of course you wouldn't," he agreed. 

"Then you understand what I want you to do?", Hackett asked.  Xavier nodded in the affirmative.  "Good, then get cracking," she ordered.  As Xavier set about preparing the indictment, Hackett prepared herself for the first meeting with Mr. Ford and his attorney.

Did Hackett do the right thing in using an indictment as leverage against Mr. Ford to secure the arrest of his daughter?
 

YES

 

NO

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Written 2/25/99