We are entering a period of politicization of prosecution unparalleled in our lifetimes. Every Coloradan should be concerned. The combination of social media furor born of snippets of videos and feckless elected officials afraid of the consequences of not appeasing that furor has resulted in ongoing and increasing manipulation of our criminal justice system to achieve predetermined outcomes. In Colorado, we are entering a Machiavellian era of public prosecution, where the process is less relevant than the mob-demanded outcome. The ends now justify the means.
To meet their ethical obligations in using the massive power of government against someone in our community that may take their good name, their money, and even their liberty, prosecutors must have a good faith basis to accuse a specific individual of a specific crime and simultaneously have a reasonable likelihood of success at trial (proof beyond a reasonable doubt) on those charges. If either of those touchstones are missing, the prosecutor is duty-bound not to pursue prosecution. End of analysis. That is prior to any discussion of what a just outcome might be. At least, that is how it used to be.
Today, once an individual is convicted by social media and enough members of the public, the mob demands that the criminal justice process bends to its loudly proclaimed will. If the system cannot achieve the desired conviction, then they change the system. If an official will not accede to their demands, they find someone else who will.
On August 24, 2019, an innocent young man named Elijah McClain died after an encounter with police and paramedics. There were numerous media reports of the death and the surrounding circumstances, including the use of ketamine, as well as small protests. On November 22, 2019, DA Dave Young issued a detailed analysis of the available evidence and applicable law after a review he voluntarily undertook. Based in large part upon the forensic pathologist’s stated inability to determine the exact cause of McClain’s death — let alone prove responsibility to a jury beyond a reasonable doubt, Young concluded he ethically could not prosecute the officers or paramedics for any level of homicide. That letter has been publicly available since November. End of story? Nope.
On June 25, 2020, ten months after McClain’s death and seven months after Young’s publicized legal analysis, Gov. Jared Polis intervened as only one prior governor has in the past 50 years. After the George Floyd incident of May 25th, an online petition demanding “that these officers are held accountable” reached more than two million non-Colorado signers. The mob had spoken: These officers were guilty. Polis sprung into action to appease them. Without reviewing a single piece of evidence or even having a Zoom conversation with Young about the case and his analysis, Polis ripped the case away from the veteran elected prosecutor and sent it to an attorney general who campaigned on the irrelevance of his complete lack of criminal justice experience. The message: When the prosecutor’s conclusion differs from your own or your political base’s, change the prosecutor. Maybe this hand-picked “prosecutor” will come to the conclusion the protestors demand. Scary.
This only the most high profile example in Colorado; it is not the only such one.
News outlets fuel this rush to indictment as well. Only six days after a July 25th incident involving protestors who shut down traffic on Interstate 225 without notice or legal authority and a Jeep lawfully present on that highway, The Post’s editorial page announced “We’re certain police and prosecutors can use the ample video evidence to support charges similar to the charges brought in Eaton against a man who police reported deliberately targeted protesters supporting police by driving through the park where they were gathered.” This blessing and encouragement of prosecution in the absence of a full investigation from our state’s flagship paper fuel the demand for an outcome, not an ethical and fair process.
Politicians increasingly encourage prosecutions without the benefit of an investigation. Last week, I held an hour-long press conference detailing to news outlets and the online-viewing public (it is still available on Facebook) through the painstaking investigation, evidence, and legal analysis in disagreeing with the Post’s conclusion. Nonetheless, several Democrat officials, including a Denver legislator (who I respect and with whom I have worked) and a Congressman, quickly denounced the decision on social media (of course) despite having never watched the evidence and analysis. They objected because the process did not yield their social media-informed, predetermined outcome.
When it comes to achieving the predetermined outcomes on officer-involved shootings, Democrat legislators are considering taking the responsibility for investigation and prosecution away from locally elected prosecutors and shipping them from across the state to the Denver-based AG’s office, whose attorneys lack any experience in handling these cases. Why? Because local prosecutors have not prosecuted enough law enforcement officers for unlawfully shooting innocent people. That is the evidence-less, predetermined conclusion, so the system will be changed to render it.
As the only state in the country to term limit its elected prosecutors, the next generation of elected prosecutors is primed to become even more extreme in its abandonment of our laws and procedures in order to achieve predetermined outcomes. A current candidate for my office has promised not to prosecute any misdemeanor drug possession cases, to never prosecute a 17-year-old as an adult, regardless of whether they commit murder or multiple murders, and to reduce the number of convicted criminals sent to jail and prison by 25%, independent of the ongoing surge in crime or whatever crimes may be committed over the next four years.
The decisions made by prosecutors should be subject to scrutiny and debate, but the trend in Colorado is to predetermine justice and then find a “prosecutor” who will bend the system to achieve it. We deserve better than that.
George H. Brauchler is the district attorney for the 18th Judicial District, which includes Arapahoe, Douglas, Elbert and Lincoln counties. Follow him @GeorgeBrauchler.
To send a letter to the editor about this article, submit online or check out our guidelines for how to submit by email or mail.