There have been multiple prominent prosecutions in recent years where the defendants have demanded that the prosecutor should be removed from the case because they have an alleged bias or they have certain political beliefs or donated to someone’s campaign or made some public statements about the case.
It’s very convenient for defendants to claim political witch hunts because if they can portray the entire prosecution as a political exercise instead of a pursuit of justice, they might be able to get the charges dismissed. If they successfully persuade the judge, they win. If they fail to persuade the judge, they lose nothing. But the public loses something — faith in the justice system.
On the other hand, actual political prosecutions are also bad on multiple levels. When a prosecutor brings unfounded charges against someone, secures an indictment by misleading the grand jury, or wins a trial by withholding exculpatory evidence or tampering with witnesses or any other unethical or illegal action, the public loses. Even if the charges are thrown out, the defendant still loses time and energy and money.
The American Bar Association’s standards state “In court as elsewhere, the prosecutor should not display or act out of any improper or unlawful bias”. That’s a good rule — no improper bias, no unlawful bias.
But what is an improper bias?
Prosecutors are supposed to be biased towards seeking justice, towards prosecuting people they believe to be guilty based on the facts and the law, towards protecting victims. If something happens, like a murder or an accident, and a prosecutor says something in public or makes a social media post mentioning the event and expressing support for the victims, that shows they have an appropriate bias. It’s proper because the incident happened, and everyone should be allowed to comment on it. Prosecutors have free speech too, and if you read the proposals in this website we hope that one day it’s honest and peaceful communication, which still allows anyone to make such remarks about something that happened.
A prosecutor should NOT make any specific remarks in public about suspects or allege that a specific person is guilty of a crime. That guilt must be proven in court, we assume everyone is innocent until they are proven to be guilty, and it would be very inappropriate to make such accusations in public before a guilty verdict.
For example, a woman reports a rape to the police. This becomes public information. A prosecutor comments that sex crimes are intolerable and that they will do what they can to support the victim and to seek justice. A suspect is identified. The prosecutor follows all due process to bring charges and start a trial. The prosecutor continues to make statements in public about sex crimes, about the victim, but never mentions any suspect in public statements. The defendant claims the prosecutor displayed a public bias and partiality towards the defendant and must be removed. The judge should deny that request because the prosecutor did not making any improper statements about the defendant in public. It is the judge who should be impartial, not the prosecutor. The prosecutor is expected to be seeking justice for victims and to have an opinion about the case — because if the prosecutor doesn’t believe the defendant is guilty on the facts and the law, they shouldn’t be prosecuting them at all.
In a different example, a prosecutor makes public statements regarding a specific individual they regard as a villain. The prosecutor accuses this person of crimes in public. The prosecutor then tries to get an indictment. That would be an unlawful bias because the prosecutor is possibly defaming the future defendant in public.