DOJ-OGR-00004865.jpg

Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 53 of 80 For the reasons detailed below, we hold that, when a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced. Prosecutors are more than mere participants in our criminal justice system. As we explained in Commonwealth v. Clancy, 192 A.3d 44 (Pa. 2018), prosecutors inhabit three distinct and equally critical roles: they are officers of the court, advocates for victims, and administrators of justice. /d. at52. As the Commonwealth’s representatives, prosecutors are duty-bound to pursue “equal and impartial justice,” Appeal of Nicely, 18 A. 737, 738 (Pa. 1889), and “to serve the public interest.” Clancy, 192 A.3d 52. Their obligation is “not merely to convict,” but rather to “seek justice within the bounds of the law.” Commonwealth v. Starks, 387 A.2d 829, 831 (Pa. 1978). As an “administrator of justice,” the prosecutor has the power to decide whether to initiate formal criminal proceedings, to select those criminal charges which will be filed against the accused, to negotiate plea bargains, to withdraw charges where appropriate, and, ultimately, to prosecute or dismiss charges at trial. See, e.g., 16 P.S. § 1402(a) (“The district attorney shall sign all bills of indictment and conduct in court all criminal and other prosecutions ... .”); Pa.R.Crim.P. 507 (establishing the prosecutor’s power to require that police officers seek approval from the district attorney prior to filing criminal complaints); Pa.R.Crim.P. 585 (power to move for nolle prosequi); see also ABA Standards §§ 3-4.2, 3-4.4. The extent of the powers enjoyed by the prosecutor was discussed most eloquently by United States Attorney General (and later Supreme Court Justice) Robert H. Jackson. In his historic address to the nation’s United States Attorneys, gathered in 1940 at the Department of Justice in Washington, D.C., Jackson observed that “[t]he prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous.” Robert H. Jackson, The Federal Prosecutor, 31 AM. INST. CRIM. L. & CRIMINOLOGY 3, 3 (1940). In fact, the prosecutor is afforded such great deference that this Court and the Supreme Court of the United States seldom interfere with a prosecutor’s charging decision. See, e.g., United States v. Nixon, 418 U.S. 683, 693 (1974) (noting that “the Executive Branch has exclusive authority and absolute discretion to decide whether [J-100-2020] - 52 DOJ-OGR-00004865