Prosecution Reform. As attorney general, I would organize a group of county attorneys and other stakeholders in our criminal justice system, including lawmakers, who are major stakeholders with significant experience, to identify and implement real prosecution reform in Utah—reform that is long overdue. Such reforms would include the following:

a. Random and Complaint-Based Independent Prosecution Audits. Under current law and practice, the prosecutor is practically immune from any consequence, even for abuse of power. There are many reasons for shielding the prosecutor from some accountability. It is a tough job and he or she needs room to operate without fearing a political retribution for making hard decisions. However, the pendulum has swung too far when we have reached the point where 2,000 former DOJ employees are essentially picketing over any prosecution oversight. Such territorialism is in my view, anti-liberty and anti-American, because it undermines the protective checks and balances of our constitutional government. Justice Jackson, quoted earlier, cleanly highlighted the destructive wake of a rouge prosecutor: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”

If a prosecutor abuses power, he or she is destructive and should be investigated with the same techniques he or she uses to prosecute. I envision a change that would provide for a random audit of prosecutions at all levels, and case specific audits based on meritorious complaints, with serious consequences for anyone who intentionally abuses the stewardship of government power. Frankly, I believe that a person who intentionally abuses government prosecution power, or uses it unjustly for a political or personal advantage against any citizen, should be criminally investigated and, where merited, charged. That does not happen currently but it needs to be done, not only to provide a remedy and consequence for prosecution abuses, but as a preventative for abuse.

There are many instances that could be cited in support of such a policy, but to provide only one, in North Carolina in 2013-14, there was a rape case filed against three members of the Duke University Lacrosse team. The case, brought due to fake allegations made by an ethnic minority, was explosive and turned the nation against the defendants and their affluent and predominately Caucasian community. After a year, the case was dismissed only because of an intervention by then North Carolina’s Attorney General Roy Cooper. Because he had the courage to look over the shoulder of a county prosecutor, investigative fraud was uncovered, the rape “victim” confessed that she had manufactured the story, and the students were fully exonerated. The prosecutor, who had filed criminal charges to gain votes for an election, was disbarred, but only served one day in jail. In my view it was not enough for such an abuse of power and impact on the lives of American citizens. Because this happens, and I believe it has happened in Utah, I will work with other stakeholders to lead real prosecutor reform that will make our system better and less likely to be abused. We will consider amending the laws that currently give prosecutors absolute immunity in their prosecution decisions. No one should enjoy absolute immunity--it is a seedbed of corruption. Independent prosecution investigators should have access to all emails, text messages and phone records to discover any improper motive or practices attaching to a prosecution, and if they have been found, there should be a strong consequence. Real checks and balances should apply to every government actor, including prosecutors. As attorney general, I would lead an accountability transformation in our state, holding myself to the same high standards, because no one should be above accountability.

b. Brady Disclosures Reform. Simply stated, Brady v. Maryland is a landmark Supreme Court case that held that prosecutors have a duty to share information that could help a criminal defendant, based on protecting constitutional due process rights. One of the challenges with the Brady application is that it lets a potentially biased prosecutor, who does not understand the defense theory, decide what might be helpful to a defendant’s case. Practically speaking, if a prosecutor, even in good faith, fails to produce evidence that should have been provided, likely no one would ever be the wiser, because a defense attorney often cannot know what evidence he does not have.

Because the defense is in the best position to understand its theories and what is potentially exculpatory, the solution would be to require all non-protectable evidence in the possession of the prosecution and investigators be shown to the defense so the defense can decide what could be useful. County Attorney Troy Rawlings has written a scholarly article on this subject and he suggests that this could be done legislatively, with significant input and discussion from all stakeholders. I would suggest he lead the reform effort.

Why is it important to provide evidence that could assist in a defense? Because under our system, the purpose of a prosecution is not to win at all costs. Rather, it is that justice should be done. Supreme Court Justice George Sutherland explained:

The …[prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose … interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States 295 U.S. 78 (1935). The role of a prosecutor is not to win—it is to find justice.

c. Education of Prosecutors and Judges about the Proper Role of Prosecution. As members of the human family, it is hard for us not to be competitive and our competitive spirit can bleed into prosecutions. As attorney general I would promote laws that prevent any prosecution agency of the state or any county or municipality from implementing a reward system for winning cases. This happens in Utah and nationally and it is a corruption. As Justice Sutherland stated, the goal of any prosecution, regardless of the investment, is justice, not a win. Prosecutors and judges are protectors of a twofold system, which includes as a high priority that innocence should not suffer a conviction. There are at least two reasons for that. First, every prosecution of a citizen deals with a sacred and inalienable right of liberty that must be honored if our society is to have any credibility. Second, if a crime has been committed and the wrong person is convicted, it follows that a guilty person is free to commit additional crimes. As attorney general, I would take a leadership role in discussing how prosecutors and judges can be more effectively trained to understand their roles to find justice, rather than “wins” to protect the rights of the accused, who are presumed innocent.

d. Provide Fair Redress for the Wrongly Accused. I was very fortunate that during my prosecution I was protected by a state law that gives a wrongly prosecuted public employee a right to reclaim attorney’s fees. So after my acquittal, when the attorney general failed to honor the statute, I filed a law suit and I was able to do so because the attorneys I retained knew that I would be successful and they could count on a recovery. A few years later, the state of Utah paid my damages claim and I received a fair settlement. I do not understand how it is fair for the government not to do the same for any person wrongly charged, even if they are not a public employee.

As a conservative I understand that the state is spending your money. I was tax- cutter as a lawmaker, however, I firmly believe that if a government actor causes an injury, there should be a consequence. Not only is it an important policy for our rights, it also creates an incentive for government to tread carefully in the use of its power. If a prosecutor is not firmly convinced of evidence sufficient to convict, a prosecution decision should not be made. It follows that if the fees for a wrongful prosecution fees were to come out of a prosecutor’s budget, more rights would be protected. The rights of all citizens depends on careful prosecution decisions, and not decisions merely intended to send a political message. Message-sending is for the legislature, and not for the prosecution office. As attorney general, I will promote all policies of accountability and work to ensure fairness in all of the work of government. Because, at the beginning and the end, government is about you, its people and your rights. I will always stand for the rights of Utahns.