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Can the Prosecutor Treat My Codefendant and I Differently?

A foundational principle of American society is that of fairness – that is, that two similarly-situated individuals should be treated in a similar manner. Our sensibilities become offended – and rightfully so – when we hear stories of discrimination where individuals receive different treatment from other people or business establishments because of a person’s race, ethnicity, national origin, or religion (among other aspects of a person). Disparate treatment based on race and ethnicity is one reason among many why there has been such a national outcry against current police practices and calls for reform from local and national leaders alike.

It may be disheartening to learn, then, that prosecutors in Florida (in reality, prosecutors throughout the United States) have a great deal of discretion to treat similarly-situated defendants differently from one another. This discretion is not unlimited, however: while prosecutors may undertake certain actions that appear to treat defendants differently from one another, they may not engage in prohibited discriminatory acts.

What Prosecutors CanDo

Prosecutors are vested with a great deal of discretion in carrying out their job tasks. With few exceptions, prosecutors also enjoy legal immunity that protects them from being sued for acts or omissions they commit while carrying out their job functions. Courts across the country have recognized a prosecutor’s ability to:

  • Bring criminal charges against a person;
  • Decline to bring charges against a person;
  • Refuse to file charges against a codefendant;
  • Offer a plea agreement to one codefendant or another;
  • Refuse to negotiate a plea with any defendant;
  • Offer a deferred prosecution agreement to a defendant;
  • Refuse to offer a deferred prosecution agreement;
  • Accept a plea from a codefendant to reduced charges and refuse to accept a similar plea from the other codefendant(s);
  • Dismiss charges against a defendant.

When it comes to carrying out the duties of the prosecutor’s office, courts are reluctant to intervene and tell the prosecution how to do its job. This hesitancy arises because of the separation of powers principle. Because prosecutors are part of the executive branch of government, a court intervening and telling a prosecutor how he or she must handle a case would be akin to the U.S. Supreme Court telling the president how he should or should not implement a law.

When Do Prosecutors Step Over the Line

Courts will intervene, however, when it is clear that a prosecutor has crossed a legal or ethical boundary. The two situations where this most often arises are (1) where the prosecution willfully and deliberately refuses to perform his or her job functions, either as they pertain to a person or in general; and/or (2) where the prosecution’s discretion is influenced by a defendant’s (or victim’s) race, ethnicity, gender, national origin, sexual orientation, etc. In these cases an aggrieved defendant or victim can petition the court and ask for judicial intervention.

Jeffrey S. Weiner is the founder of Jeffrey S. Weiner, P.A., a South Florida criminal defense law firm representing clients charged with criminal offenses throughout the State of Florida. Discuss your case with him today by calling (305) 670-9919 or contacting him online.

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