Amicus Curiae Brief — Larry Thompson, Petitioner v. Pagiel Clark, et al.

No. 20-659

I N THE

Supreme Court of the United States

_________

LARRY THOMPSON ,

Petitioner,

v.

PAGIEL CLARK, ET. A L.,

Respondents.

_________

On Writ of Certiorari to

the United States Court of Appeals

for the Second Circuit

_________

BRIEF FOR THE DISTRICT ATTORNEYS

ASSOCIATION OF THE STATE OF NEW YORK

AS AMICUS CURIAE SUPPORTING

RESPONDENT

_________

H ON. J. ANTHONY JORDAN

DISTRICT ATTORNEY

ASSOCIATION OF THE

STATE OF NEW YORK

3 Columbia Place

Albany, NY 12210

(518) 598-8968

VINCENT STARK*

CHRISTOPHER D. H ORN

ALBANY COUNTY DISTRICT

ATTORNEY’S OFFICE

6 Lodge Street, 4th Floor

Albany, NY 12210

(518) 487-5093

vincent.stark@albanycountyny.gov

*Counsel of Record

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

STATEMENT OF INTEREST OF AMICUS

CURIAE ..............................................................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ............................................................

3

I. A PROSECUTOR’S DISCRETION TO

DO JUSTICE IS BROAD AND

KALEIDOSCOPIC … .......................................

3

1. Historic Underpinnings of Prosecutorial Discretion...............................................

3

2. How

Prosecutors

“Do

Justice”

through Dismissals ...................................

9

II. ELIMINATING THE “INDICATIONS

OF INNOCENCE” RULE WOULD

DENY

THE

REALITY

OF

PROSECUTORIAL PRACTICE AND

MAY NEGATIVELY IMPACT THE

CAUSE OF JUSTICE .....................................

18

1. The Realities of New York Criminal

Practice ..........................................................

19

2. Negative Impact on the Cause of Justice 24

CONCLUSION ........................................................

27

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Berger v. United States,

295 U.S. 78 (1935) ..................................................... 8, 9

Bordenkircher v. Hayes,

434 U.S. 357 (1978)................................................. 9, 13

Cordova v. City of Albuquerque,

816 F.3d 645 (10th Cir. 2016)................................... 25

Davis v. State,

210 So. 3d 101 (Fla. Dist. Ct. App. 2016)..................7

Gedratis v. Carroll,

225 N.W. 625 (Mich. 1929)..................................25, 26

Grand Jury Subpoena, Judith Miller,

397 F.3d 964 (D.C. Cir. 2005) ................................... 18

Heckler v. Chaney,

470 U.S. 821 (1985)........................................................6

Hurd v. People,

25 Mich. 405 (1872) .......................................................8

Inmates of Attica Corr. Facility v. Rockefeller,

477 F.2d 375 (2d Cir. 1973)..........................................7

Laskar v. Hurd,

972 F.3d 1278 (11th Cir. 2020) ........................ passim

People v. Banks,

954 N.Y.S.2d 255 (N.Y. App. Div. 2012) ................ 23

People v. Di Falco,

377 N.E.2d 732 (N.Y. 1978) .................................. 2, 22

iii

TABLE OF AUTHORITIES—Continued

Page

People v. Farrar,

419 N.E.2d 864 (N.Y. 1981) ...................................... 11

People v. Koonce,

466 Mich. 515 (2002) .....................................................8

People v. Lawrence,

474 N.E.2d 593 (N.Y. 1984) ...................................... 22

People v. Lombard,

168 N.Y.S.2d 419 (N.Y. App. Div. 1957) ................ 10

People v. Rickert,

58 N.Y.2d 122 (1983) .................................................. 21

People v. Selikoff,

318 N.E.2d 784 (N.Y. 1974) ................................11, 18

Piggly Wiggly No. 208, Inc. v. Dutton,

601 So. 2d 907 (Ala. 1992)............................................7

Roblyer v. Hoyt,

72 N.W.2d 126 (Mich. 1955) ..................................... 25

Soares v. Carter,

32 N.E.3d 390 (N.Y. 2015)....................................... 6, 7

Soares v. Carter,

979 N.Y.S.2d 201 (N.Y. App. Div. 2014) ..........21, 22

State ex rel. Brown v. Nusbaum,

95 N.E.3d 365 (Ohio 2017) ...........................................7

Swick v. Liautaud,

662 N.E.2d 1238 (Ill. 1996) ....................................... 24

United States v. Armstrong,

517 U.S. 456 (1996)........................................................7

iv

TABLE OF AUTHORITIES—Continued

Page

United States v. Cox,

342 F.2d 167 (5th Cir. 1965) ........................................6

United States v. Jones,

983 F.2d 1425 (7th Cir. 1993)................................... 11

United States v. Lovasco,

431 U.S. 783 (1977)..................................................... 17

United States v. Navarro-Vargas,

408 F.3d 1184 (9th Cir. 2005).............................15, 17

Van Sant v. Am. Express Co.,

158 F.2d 924 (3d Cir. 1946)....................................... 25

Statutes

N.Y. Crim. Proc. Law § 170.40 (McKinney) . 20, 21, 23

N.Y. Crim. Proc. Law § 170.55 (McKinney) . 19, 20, 23

N.Y. Crim. Proc. Law § 210.40 (McKinney) .............. 20

N.Y. Penal Law § 145.05 (2).......................................... 13

N.Y. Penal Law § 255.17................................................ 15

Other Authorities

63A Am.Jur.2d Prosecuting Attorneys § 24 (1984) .....7

Bruce A. Green & Rebecca Roiphe, A Fiduciary

Theory of Prosecution,

69 Am. U.L. Rev. 805 (2020) ..................................... 17

Darryl K. Brown, Democracy & Decriminalization,

86 Tex. L. Rev. 223 (2007) ......................................... 15

v

TABLE OF AUTHORITIES—Continued

Page

Philip B. Kurland & D. W. M. Waters, Public Prosecution in England, 1854-79: An Essay in English

Legislative History,

1 Duke L. J. 493 (1959) .................................................4

Josephine Gittler, Expanding the Role of the Victim

in a Criminal Action,

11 Pepperdine L. Rev. 117 (1984)...............................4

Superseding the District Attorneys in New York City,

41 Fordham L. Rev. 517 (1973)...................................5

Adam N. Stern, Plea Bargaining, Innocence, & the

Prosecutor’s Duty to “Do Justice”,

25 Geo. J. Legal Ethics 1027 (2012)........................ 10

Robert M. Ireland, Privately Funded Prosecution of

Crime in the Nineteenth-Century United States,

39 Am. J. Legal Hist. 43 (1995) ..................................5

Russell M. Gold, Promoting Democracy in

Prosecution,

86 Wash. L. Rev. 69 (2011) ....................................... 15

Roger A. Fairfax, Jr., Prosecutorial Nullification,

52 B.C. L. Rev. 1243 (2011) .................. 11, 12, 14, 15

Steven K. Berenson, Public Lawyers, Private Values:

Can, Should, and Will Government Lawyers Serve

the Public Interest?

41 B.C. L. Rev. 789 (2000)............................................7

Logan Sawyer, Reform Prosecutors & Separation of

Powers,

72 Okla. L. Rev. 603 (2020)....................................... 18

vi

TABLE OF AUTHORITIES—Continued

Page

Robert H. Jackson, The Federal Prosecutor,

31 J. Crim. L. & Criminology, 4 (1940) .....................9

SB8S ................................................................................... 16

Juan Cardenas, The Crime Victim in the Prosecutorial Process,

9 Harv. J. L. & Pub. Pol’y 357 (1986) ........................4

Douglas E. Beloof & Paul G. Cassell, The Crime

Victim's Right to Attend the Trial: The

Reascendant National Consensus,

9 Lewis & Clark L. Rev. 481 (2005) ...........................5

Carolyn B. Ramsey, The Discretionary Power of

“Public” Prosecutors in Historical Perspective,

39 Am. Crim. L. Rev. 1309 (2002) ..............................5

Stephanos Bibas, The Need for Prosecutorial

Discretion,

19 Temp. Pol. & Civ. Rts. L. Rev. 369 (2010) ....... 12

Michael J. Ellis, The Origins of the Elected

Prosecutor,

121 Yale L. J. 1528 (2012)............................................5

William J. Stuntz, The Pathological Politics of

Criminal Law,

100 Mich. L. Rev. 505 (2001) .................................... 14

Michael A. Caves, The Prosecutor’s Dilemma:

Obligatory Charging Under the Ashcroft Memo,

9 J. L. & Soc. Challenges 1 (2008) .....................12, 14

vii

TABLE OF AUTHORITIES—Continued

Page

John D. Bessler, The Public Interest and the

Unconstitutionality of Private Prosecutors,

47 Ark. L. Rev. 511 (1994)............................................5

Njeri Mathis Rutledge, Turning A Blind Eye: Perjury

in Domestic Violence Cases,

39 N.M. L. Rev. 149 (2009) ....................................... 15

W. Scott Van Alstyne, The District Attorney A

Historical Puzzle,

1952 Wis. L. Rev. 125 (1952) .......................................4

Bruce A. Green, Why Should Prosecutors “Seek

Justice”?,

26 Fordham Urb. L. J. 607 (1999) .................. 8, 9, 11

I N THE

Supreme Court of the United States

_________

LARRY THOMPSON ,

Petitioner,

v.

PAGIEL CLARK, ET. A L.,

Respondents.

_________

On Writ of Certiorari to

the United States Court of Appeals

for the Second Circuit

_________

BRIEF FOR THE DISTRICT ATTORNEYS

ASSOCIATION OF THE STATE OF NEW YORK

AS AMICUS CURIAE SUPPORTING

RESPONDENT

_________

INTEREST OF AMICUS CURIAE1

The District Attorneys Association of the State of

New York (DAASNY) is a state-wide organization

comprised of elected District Attorneys from

1 Pursuant to Supreme Court Rule 37.6, counsel for the amicus certifies that no counsel for a party authored this brief in

whole or in part and that no person or entity, other than the

amicus and their counsel, made a monetary contribution

intended to fund this brief’s preparation or submission. Counsel

of record for all parties consented to the filing of this brief.

(1)

2

throughout the State, the Special Narcotics Prosecutor of the City of New York, the state Attorney

General, and the Justice Center for the Protection of

People with Special Needs, and their nearly 2,900

assistants. Under state law, members of the Association are responsible for the investigation and prosecution of crimes in their respective jurisdictions. In

exercising those duties, they enjoy “broad discretion

in determining when and in what manner to prosecute a suspected offender,” which is not subject to

review under state law. People v. Di Falco, 377

N.E.2d 732, 735 (N.Y. 1978). DAASNY is thus

uniquely well positioned to explain why and how

those discretionary decisions are made by New York

prosecutors.

As public prosecutors, the interest of the members

of the Association is to pursue justice in all circumstances and in all its forms. This means prosecutors

have a special duty to make sure the innocent do not

suffer. But it also means, in individual cases, that

prosecutors will choose not to pursue cases against

some of the guilty when the public interest is better

served otherwise. For justice to prevail, prosecutors

must be free to exercise their discretion without fear

or favor. We believe that the outcome of this case

could have consequences for criminal practice in New

York State. Any rule of law that touches the routine

exercise of a prosecutor’s discretion is of concern to

us.

SUMMARY OF ARGUMENT

Seven of the eight circuits that have reached the

question have found that, in the context of a section

1983 action sounding in malicious prosecution, a

“favorable termination” requires an affirmative

3

indication of innocence. Only the Eleventh Circuit

dissents from this view, holding instead that the

necessity of a favorable-termination requires merely

that criminal proceedings resolve “in a manner not

inconsistent with” the defendant’s innocence. Laskar

v. Hurd, 972 F.3d 1278, 1295 (11th Cir. 2020).

The Eleventh Circuit’s alternative rule ignores the

reality of how broadly a prosecutor’s discretion to

dismiss charges is exercised in order to “do justice.” Under the current rules, prosecutors make

decisions about dismissal without any particular

regard to potential malicious prosecution claims,

routinely dismissing cases for a variety of reasons,

mostly unrelated to innocence. Under the Eleventh

Circuit’s rule, any discretionary dismissal by the

prosecutor would swing open the door to a great deal

of meritless litigation. Setting up vexatious litigation in that way may potentially conflict with the

prosecutor’s “primary responsibility” of seeking

justice, which “can only be achieved by the representation and presentation of the truth.” NDAA Standard 1-1.1 (3d ed. 2009).

ARGUMENT

I. A PROSECUTOR’S DISCRETION TO DO

JUSTICE

IS

BROAD

AND

KALEIDOSCOPIC

A. The Underpinnings

Discretion

of Prosecutorial

At English Common Law, there was no office of

public prosecutor. Jack M. Kress, Progress and

Prosecution, 423 Annals Am. Acad. Poli. & Soc. Sci.

99, 100 (1976). Crime was viewed “not as an act

against the state, but rather as a wrong inflicted

4

upon a victim.” Id.; see also 4 William Blackstone,

Commentaries on the Laws of England 5 (1769).

And so, as with any other private wrong, the “practice of allowing crime victims to initiate private

prosecutions” was “based on the common belief that

the surest method of bringing a criminal to justice

[was] to leave the prosecution in the hands of the

victim and his family.” Juan Cardenas, The Crime

Victim in the Prosecutorial Process, 9 Harv. J. L. &

Pub. Pol’y 357, 359 (1986). The chief distinction

between private civil actions and criminal actions

was simply the “character of the damages ultimately

awarded”—in one case extracting money, in the

other extracting life or liberty. Philip B. Kurland &

D. W. M. Waters, Public Prosecution in England,

1854-79: An Essay in English Legislative History, 1

Duke L. J. 493, 493 (1959).

Over time, American practice diverged on this

point. To this day, the precise origins of the public

prosecutor are still a subject of some debate. Josephine Gittler, Expanding the Role of the Victim in a

Criminal Action, 11 Pepperdine L. Rev. 117, 127

(1984) (calling this an “historical enigma”); see Michael Edmund O’Neill, Private Vengeance and the

Public Good, 12 J. Const. L. 659, 675 (2010); W. Scott

Van Alstyne, The District Attorney A Historical

Puzzle, 1952 Wis. L. Rev. 125 (1952); Joan E. Jacoby,

The American Prosecutor: A Search for Identity

(1980).

What is clear is that the “distinctive and uniquely

American” system of public prosecution only began to

take hold during the nineteenth century. Kress,

supra, at 100. Initially, these local public prosecutors were appointed, sometimes by executives and

5

sometimes by courts. Michael J. Ellis, The Origins of

the Elected Prosecutor, 121 Yale L. J. 1528, 1537

(2012). In 1832, Mississippi became the first state to

make local prosecutors elected officials. Id. at 1540.

New York followed suit in 1846. Robert M. Pitler,

Superseding the District Attorneys in New York City,

41 Fordham L. Rev. 517, 520 (1973). Today all but

four states elect their prosecutors. Ellis, supra. at

1520 n3.

Despite the proliferation of public prosecutors, the

“practice of private prosecution extended well into

the nineteenth century,” Douglas E. Beloof & Paul G.

Cassell, The Crime Victim's Right to Attend the

Trial: The Reascendant National Consensus, 9 Lewis

& Clark L. Rev. 481, 486 (2005), and continued to be

“a significant element of the state criminal justice

system” throughout it, Robert M. Ireland, Privately

Funded Prosecution of Crime in the NineteenthCentury United States, 39 Am. J. Legal Hist. 43, 43

(1995). It was not until the latter part of the century

that public prosecutors began to displace private

ones. John D. Bessler, The Public Interest and the

Unconstitutionality of Private Prosecutors, 47 Ark. L.

Rev. 511, 519 (1994). By the turn of the twentieth

century public prosecutors had mostly won out—

though pockets of private prosecutions persisted here

and there. Carolyn B. Ramsey, The Discretionary

Power of “Public” Prosecutors in Historical Perspective, 39 Am. Crim. L. Rev. 1309, 1391 (2002); Richard

F. Hamm, Shaping The 18th Amendment: Temperance Reform, Legal Culture, and Polity, 1820-1920

145 (1995) (finding that in 1900, approximately

three-quarters of liquor law prosecutions were conducted by private attorneys hired by the Ohio AntiSaloon League).

6

The gradual shift to elected, state-funded prosecutors made two things perfectly clear. First, as “public,” not private, prosecutors, they were accountable

to the people and represented their interests, not

merely the interests of the victims of crime. O’Neill,

supra, at 681–82; see also Walter M. Pickett, The

Office of Prosecutor in Connecticut, 17 Am. Inst.

Crim. L. & Criminology 348, 356–57 (1926). Second,

as elected officers, public prosecutors were now

firmly members of the executive branch. The Changing Role of the American Prosecutor 7–9 (John L.

Worrall and M. Elaine Nugent-Borakove eds., 2008).

Two important principles flowed naturally from

these developments. First and foremost was that as

a member of the executive branch, a district attorney’s decisions to prosecute or not to prosecute were

imbued with the character of that office. Thus, as a

matter of separation of powers, those decisions were

typically not reviewable. In United States v. Cox, the

Fifth Circuit explained that when a federal prosecutor “exercises a discretion as to whether or not there

shall be a prosecution in a particular case” he does so

as “an officer of the executive department.” United

States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965). It

followed that “as an incident of the constitutional

separation of powers” courts could not “interfere with

the free exercise of the discretionary powers of”

federal prosecutors. Id. This Court, too, has recognized that charging decisions “have long been regarded as the special province of the Executive

Branch.” Heckler v. Chaney, 470 U.S. 821, 832

(1985). State courts, under their own state constitutions, have recognized the same principle. See, e.g.,

Soares v. Carter, 32 N.E.3d 390, 392 (N.Y. 2015).

Thus, the general rule throughout the states is that

7

“[a] prosecutor is not subject to judicial supervision

in determining what charges to bring and how to

draft accusatory pleadings; he is protected from

judicial oversight by the doctrine of separation of

powers.” Piggly Wiggly No. 208, Inc. v. Dutton, 601

So. 2d 907, 910 (Ala. 1992), quoting 63A Am.Jur.2d

Prosecuting Attorneys § 24 (1984).

Nowhere is that power more complete than when a

prosecutor chooses not to charge a crime or simply to

dismiss one. Whereas in certain limited circumstances courts may review a prosecutor’s decision to

charge a crime, see United States v. Armstrong, 517

U.S. 456, 464 (1996) (describing high standard for

selective-prosecution claims), when a prosecutor

declines to bring a charge or dismisses it his decision

is practically unreviewable. Over the years lower

courts have sometimes tried to force prosecutors to

initiate prosecutions but have always failed. See,

e.g., Soares, 32 N.E.3d at 392; State ex rel. Brown v.

Nusbaum, 95 N.E.3d 365, 368 (Ohio 2017); Davis v.

State, 210 So. 3d 101, 103 (Fla. Dist. Ct. App. 2016);

Inmates of Attica Corr. Facility v. Rockefeller, 477

F.2d 375, 379 (2d Cir. 1973) (“The primary ground

upon which this traditional judicial aversion to

compelling prosecutions has been based is the separation of powers doctrine.”).

The other important result of the shift to public

(and mostly elected) district attorneys was the

recognition that prosecutors’ first duty was to seek

justice as a matter of the public good. This idea took

hold early on. Steven K. Berenson, Public Lawyers,

Private Values: Can, Should, and Will Government

Lawyers Serve the Public Interest?, 41 B.C. L. Rev.

789, 792 (2000) (“[C]ourts and commentators from

the earliest days of the American legal system to the

present have viewed pursuit of the public interest as

8

a critical function of the public prosecutor.”). In an

1854 essay (on which the American Bar Association

would later base its first code of ethics) thenprofessor George Sharswood wrote that the office of a

prosecutor was “a public trust” and although a

defense attorney “should exert all his ability, learning, and ingenuity” in defense of a man he knew was

guilty, a prosecutor should never move forward with

a case against “a man whom he knows or believes to

be innocent.” Bruce A. Green, Why Should Prosecutors “Seek Justice”?, 26 Fordham Urb. L. J. 607, 612

(1999); see Canons of Ethics, 33 ABA Rep. 575, 576

(1908) (“The primary duty of a lawyer engaged in

public prosecution is not to convict, but to see that

justice is done.”).

Courts quickly affirmed that notion. “The prosecuting officer,” one contemporary court noted, “represents the public interest, which can never be promoted by the conviction of the innocent. His object like

that of the court, should be simply justice….” Hurd v.

People, 25 Mich. 405, 416 (1872), superseded by

statute on other grounds People v. Koonce, 466 Mich.

515, 518–19 (2002). Similar expressions of the

principle can be found throughout the caselaw from

the late nineteenth century onward. See Green,

supra, at 613–14 (collecting cases). These expressions found their apogee in this Court’s famous

phrase in Berger v. United States that the United

States Attorney was the “representative not of an

ordinary party to a controversy, but of a sovereignty

whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose

interest, therefore, in a criminal prosecution is not

that it shall win a case, but that justice shall be

done.” Berger v. United States, 295 U.S. 78, 88

9

(1935). In other words, prosecutors endowed with

the “tremendous” discretion afforded to them by their

office also bear the weighty responsibility of justice

on their shoulders. See Robert H. Jackson, The

Federal Prosecutor, 31 J. Crim. L. & Criminology, 4

(1940).

B. How Prosecutors Seek to “Do Justice”

Through Dismissals

Prosecutors generally, and the members of

DAASNY in particular, take our obligation to do

justice seriously. Classically, this has been understood to mean that the prosecutor’s goal was “that

guilt shall not escape or innocence suffer.” Berger,

295 U.S. at 88; see Green, supra, at 634. This means

that prosecutors are not permitted to bring charges

when they know they lack probable cause. Model

Rules of Prof’l Conduct, R 3.8(a) (2013); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).2 It also

means that the prosecutor has a duty of fairness to

2 We note that an Amicus Brief filed in this matter by a group

of current and former prosecutors, department of justice

officials, and judges incorrectly states that a prosecutor cannot

seek charges unless the evidence is sufficient to obtain a guilty

verdict at trial. Brief for Amicus Curiae Current and Former

Prosecutors, Department of Justice Officials, and Judges in

Support of Petitioner at 5, Thompson v. Clark (No. 20-659)

(hereinafter “Brief for Former Prosecutors”). For this proposition they cite to a regulation contained within the U.S. Attorneys’ Manual. See U.S. Dep’t of Justice, Justice Manual § 927.220 cmt., available at https://perma.cc/95FM-SNLC. While

this is undoubtedly best practice, it is not required by law or

ethics. Instead, “so long as the prosecutor has probable cause to

believe that the accused committed an offense defined by

statute, the decision whether or not to prosecute, and what

charge to file or bring before a grand jury, generally rests

entirely in his discretion.”). Bordenkircher, 434 U.S. at 364.

10

the defendant and a “positive obligation” to ensure

that “the rights of all—defendants included—are

safeguarded.” People v. Lombard, 168 N.Y.S.2d 419,

424 (N.Y. App. Div. 1957). Their ethics thus requires

them “to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of

sufficient evidence, and that special precautions are

taken to prevent and to rectify the conviction of

innocent persons.” Model Rules of Prof’l Conduct, R

3.8 cmt. [1] (2013). Many of these ethical duties are

found in various state ethical rules, others are found

in caselaw.

Yet the obligation to do justice extends beyond

matters of professional ethics and serves as an

aspirational goal addressed to the conscience of the

prosecutor. Adam N. Stern, Plea Bargaining, Innocence, & the Prosecutor’s Duty to “Do Justice”, 25

Geo. J. Legal Ethics 1027, 1040 (2012). The National

District Attorneys Association’s National Prosecution

Standards begin by stating that a prosecutor is an

“independent administrator of justice” whose “primary responsibility” is to “seek justice,” a goal that can

only be achieved by representing the truth. See

National District Attorneys Ass’n, National Prosecution Standards, Standard 1-1.1 (3d ed. 2009)

(NDAA); see also ABA Criminal Justice Standards:

Prosecution Function, § 3-1.2(a) (4th ed. 2017) (ABA

Standards) (“The prosecutor is an administrator of

justice, a zealous advocate, and an officer of the

court.”). Part of pursuing justice is putting “the

rights and interests of society in a paramount position in exercising prosecutorial discretion in individual cases.” NDAA Standard 1-1.2. Importantly, the

ABA Criminal Justice Standards for the Prosecution

Function recognizes that this can include “exercising

11

discretion to not pursue criminal charges in appropriate circumstances.” ABA Standards § 3-1.2(b); see

also ABA Standards § 3-4.4(a). These aspirational

guidelines represent the modern understanding that

“the prosecutor’s duty is to seek the fairest rather

than necessarily the most severe outcome.” See, e.g.,

United States v. Jones, 983 F.2d 1425, 1433 (7th Cir.

1993). “Full enforcement of the law,” it has been

noted, “would not only be impractical, but also unwise.” Roger A. Fairfax, Jr., Prosecutorial Nullification, 52 B.C. L. Rev. 1243, 1244 (2011). Instead,

prosecutors seek to treat lawbreakers “with proportionality.” Green, supra, at 634.

Prosecutors do this in a number of ways. One way

is through plea bargaining. Plea bargain offers allow

prosecutors flexibility to serve “the ends of justice” by

factoring in the “infinitely variable circumstances” of

each defendant and the mitigating features unique to

each case, in effect taking the sting out of the harshest penalties. See People v. Selikoff, 318 N.E.2d 784,

789 (N.Y. 1974). Most of the time, prosecutors are

able to negotiate a penalty that he “deems necessary

to serve the interests of the People” in the exercise of

sound prosecutorial discretion. People v. Farrar, 419

N.E.2d 864, 866 (N.Y. 1981). The prosecutor’s discretion to offer a plea has been recognized as providing the “selectivity needed in criminal law enforcement.” Selikoff, N.E.2d at 789. The fact is that

“notwithstanding a defendant’s criminal liability for

the crime charged,” a prosecutor may reasonably be

convinced that a “harsh minimum penalty… is

unwarranted in light of the then known background

of the defendant or his or her role in the crime.”

Farrar, 419 N.E.2d at 866.

12

Those same considerations apply when a prosecutor declines to pursue charges or simply dismisses

them. Prosecutors take these steps for a number of

reasons. To be sure, a prosecutor might decline a

case because his own view of the facts leads him to

believe there is no probable cause to pursue it, triggering his ethical duties. Model Rules of Prof’l

Conduct, R 3.8(a) (2013). More common in our

experience are other considerations. “Any number of

factors might influence the prosecutor’s discretion in

this regard, including resource limitations, law

enforcement priorities, needs or wishes of the victim,

and the perceived public interest.” Fairfax, supra, at

1244; ABA Standards § 3-4.4(a) (iii), (iv), (v), & (xiv);

NDAA Standard 4-1.3 (c), (h), & (q).

Limited resources are a particularly acute concern,

given the “chronically congested” state of local criminal dockets. Stephanos Bibas, The Need for Prosecutorial Discretion, 19 Temp. Pol. & Civ. Rts. L. Rev.

369, 369 (2010). Prosecutors “must be allowed to

direct [their] resources to best serve society” because

without such discretion their caseloads “would

become unworkable” and the entire “administration

of justice would collapse.” Michael A. Caves, The

Prosecutor’s Dilemma: Obligatory Charging Under

the Ashcroft Memo, 9 J. L. & Soc. Challenges 1, 7

(2008). A prosecutor might therefore decline a

“meritorious prosecution” where other remedies—

like civil, administrative, or private remedies—are

available and sufficient to vindicate the state’s

interest. Fairfax, supra, at 1259; ABA Standards §

3-4.4(a) (xvi); NDAA Standard 4-1.3 (d).

The character, history, or circumstances of the

accused may also weigh in favor of dismissal or

13

declination. ABA Standards § 3-4.4(a) (v); NDAA

Standard 4-1.3 (j) & (o). As one author pointed out, a

“technically guilty but morally sympathetic mentally

[challenged] defendant should not have to endure

prosecution in the first place for a nonviolent crime.”

Bibas, supra, at 372; see also NDAA Standard 4-1.3

(j). Such an extreme example is hardly the norm, of

course, but that does not mean a declination to

prosecute makes any less sense; a young, first time

offender who gets in with the wrong crowd and

grafittis a park may warrant the same treatment

even though he could theoretically be charged with a

felony under New York law. N.Y. Penal Law §

145.05 (2). Similarly, an adult with no criminal

history who breaks a window in the heat of an argument might be charged with the same felony, but if

he makes restitution society’s interest in further

punishment might well be nil, justifying dismissal.

See ABA Standards § 3-4.4(a) (v); see also NDAA

Standard 4-1.3 (f). “[T]hese hypothetical situations

track the popular moral intuition that we generally

want to pursue justice tempered by mercy.” Bibas,

supra, at 372. They also challenge the prosecutor to

consider “[w]hether the size of the loss or the extent

of the harm caused by the alleged crime is too small

to warrant a criminal sanction,” another important

factor in a charging decision. NDAA Standard 41.3(q); ABA Standards § 3-4.4(a) (iii).

These general concerns are given heightened significance by the fact that a criminal charge can seriously impact the accused. “Merely being charged with a

crime can jeopardize a suspect’s standing within the

community, severely degrade a suspect’s economic

security, inflict emotional and psychological damage

on the suspect and the suspect’s family, and is at the

14

very least a tremendous disruption of her daily life.”

Caves, supra, at 11. Perhaps because of this, ABA

standards encourage prosecutors to consider “formal

or informal” noncriminal dispositions in every case.

ABA Standards § 3-4.4(f). More specifically, prosecutors are encouraged to consider “whether the authorized or likely punishment or collateral consequences

are disproportionate in relation to the particular

offense or the offender,” ABA Standards § 3-4.4(a)

(vi), and the NDAA standards encourage him to

consider any “[u]ndue hardship” prosecution could

cause a defendant, NDAA Standard 4-1.3 (k); see also

William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 599 (2001) (“prosecutors have the discretion not to enforce when the

laws are too harsh.”). The United States Attorneys’

Manual makes similar observations. See U.S. Dep’t

of Justice, U.S. Attorneys’ Manual § 9-27.001 Preface. Such undue hardships can take many forms.

Prosecutors might be faced with a medical doctor

charged with a DWI who could lose his license to

practice if convicted. See Gary Muldoon, Collateral

Effects of A Criminal Conviction, N.Y. St. B.J.,

August 1998, at 26, 28 (1998). They may encounter

immigrant defendants with children who could face

deportation for relatively minor crimes. Id. They

might meet a young man who wishes to join the

military and whom a recruiter wants, but the military cannot take him unless his pending charge is

dismissed. Id. The list goes on and on.

Sometimes, the wishes of or protection of a victim

weighs in favor of dropping a meritorious case.

Fairfax, supra, at 1258; ABA Standards § 3-4.4(a)

(vii); NDAA Standard 4-1.3 (c). This is particularly

common in cases of domestic violence. While prose-

15

cutors rightfully seek a resolution that assures the

safety of the victim and the public, “[a] domestic

violence victim may be less interested in justice and

more interested in survival.” Njeri Mathis Rutledge,

Turning A Blind Eye: Perjury in Domestic Violence

Cases, 39 N.M. L. Rev. 149, 181 (2009). Ultimately,

a victim’s level of cooperation, safety concerns, or

interest in the case sometimes necessitates dismissal.

Finally, as elected representatives of the People,

prosecutors reflect the views of the communities they

represent in determining both law enforcement

priorities and the public’s interest in any particular

crime or class of crime. See Russell M. Gold, Promoting Democracy in Prosecution, 86 Wash. L. Rev. 69,

71 (2011) (“Because prosecutors act on the public’s

behalf, their decisions should reflect their constituents’ preferences.”); see also Darryl K. Brown, Democracy & Decriminalization, 86 Tex. L. Rev. 223,

261 (2007). Where an “antiquated” statute serves no

useful “deterrent or protective purpose in today’s

society,” prosecutors may well find their resources

more needed elsewhere. Id. Thus, if a criminal

statute is out of step with the prevailing morals of

the day they may decline to enforce it in a sort of

passive desuetude—as with New York’s statute

against adultery, a crime which still occasionally

makes its way in to a charging document. Fairfax,

52 B.C. L. Rev. at 1260 n.64; N.Y. Penal Law §

255.17; WBTA News, Adultery charge against Suzanne Corona dropped, The Batavian (Aug. 11, 2010,

3:06 PM), https://perma.cc/9E7W-LX8K. In other

words, “[p]rosecutors can, and often do, make such

decisions based on their judgments as to how wise

and important certain laws may be.” United States v.

16

Navarro-Vargas, 408 F.3d 1184, 1213 (9th Cir. 2005)

(Hawkins, J., dissenting). By tracking the “widely

shared moral intuitions” of their constituents, prosecutors give the decisions they make in the name of

the ‘People’ democratic legitimacy. See Bibas, supra,

at 372–73. As Justice Robert Jackson put it, “each

locality has the right under our system of government to fix its own standards of law enforcement and

of morals.” Jackson, supra, at 6. One important way

our system does that is through the local elected

public prosecutor.

That general authority has been invoked by prosecutors across the United States, including in New

York, to announce policies that discontinue prosecutions of minor crimes and re-focus on major ones. In

New York, the District Attorneys in Manhattan,

Brooklyn, and Albany all announced policies discontinuing prosecution for possession of small amounts

of marijuana well before the state legislature legalized it earlier this year. Press Release, Manhattan

District Attorney’s Office, Tomorrow: D.A. Vance

Ends Prosecution of Marijuana Possession and

Smoking

Cases

(July

31,

2018),

https://perma.cc/5ZD2-MNUZ; Press Release, Brooklyn District Attorney’s Office, Low-Level Marijuana

Prosecutions in Brooklyn Plunged by over 91% This

Year as District Attorney’s Office Expanded Declination Policy, https://perma.cc/SB8S-R2GN; Press

Release, Marijuana Laws in Albany County, Albany

County

District

Attorney’s

Office,

https://perma.cc/37FL-NSSW. In Los Angeles, the

District Attorney adopted a policy to discontinue

prosecution of an array of minor crimes. Memorandum from DA Gascon to All Deputy District Attorneys, Misdemeanor Case Management (Dec. 7, 2020),

17

https://perma.cc/Y9BP-5KTN. In Boston, the District

Attorney directed her staff to decline prosecutions of

a number of low-level, non-violent crimes, resulting

in her office dismissing, declining to prosecute, or

diverting fully 57% of their cases in 2019. Ally

Jarmanning, Not Prosecuting Low-Level Crimes

Leads to Less Crime in Suffolk County, Research

Finds, WBUR (updated March 29, 2021),

https://perma.cc/3PW2-Y99X.

She explained her

actions as a question of priorities and resources.

“What I choose to do is work on the over 1,300 unsolved homicides in Boston,” she told an interviewer,

“That’s where I want my time and attention. Not on

a trespass in a park in a neighborhood in Roxbury

that’s been gentrified.” Id. This is not shocking. As

one set of commentators pointed out, the “conventional wisdom” that arson is a more serious crime

than graffiti should be expected to “lead a prosecutor

to prioritize arson cases” over graffiti. Bruce A.

Green & Rebecca Roiphe, A Fiduciary Theory of

Prosecution, 69 Am. U.L. Rev. 805, 839–40 (2020).

In short, whether to file or continue criminal

charges “with the awesome consequences it entails,

requires consideration of a wide range of factors in

addition to the strength of the Government’s case, in

order to determine whether prosecution would be in

the public interest.” United States v. Lovasco, 431

U.S. 783, 794 (1977). “Not every potential crime can

(or should) be investigated or prosecuted, and an

important part of the prosecutorial function is deciding which potential defendants to select for criminal

prosecution….” Navarro-Vargas, 408 F.3d at 1213

(Hawkings, J., dissenting). The modern trend has

been to take a broad approach to this project. Logan

18

Sawyer, Reform Prosecutors & Separation of Powers,

72 Okla. L. Rev. 603, 605 (2020).

Each case, each defendant, and each jurisdiction is

different—but the system gives prosecutors the

discretion they need to take account of the “infinitely

variable circumstances” attendant to all three.

Selikoff, 318 N.E.2d at 789. These decisions—to

charge or not to charge, to continue charges or to

dismiss—are the very core of a prosecutor’s function.

See Grand Jury Subpoena, Judith Miller, 397 F.3d

964, 976 (D.C. Cir. 2005). They are also routine and

continuing; they must occur as early as practicable in

every case, and the prosecutor must reconsider his

initial charging decision as he learns new information. NDAA Standards 4-1.1 & 4-1.6. Given the

frequency with which these decisions are made and

the myriad of reasons why prosecutors make them it

is difficult to generalize beyond this simple observation: prosecutors dismiss or decline to prosecute

cases for many reasons, most of them wholly unrelated to the guilt or innocence of the accused.

II. ELIMINATING THE “INDICATIONS OF

INNOCENCE” RULE WOULD DENY THE

REALITY OF PROSECUTORIAL PRACTICE

AND MAY NEGATIVELY IMPACT THE CAUSE

OF JUSTICE

Eight of the circuit courts have now considered

what constitutes a favorable termination in the

context of a pre-trial dismissal. Seven have held that

a dismissal alone is not a favorable termination but

that some further “indication of innocence” is required. See Laskar v. Hurd, 972 F.3d 1278, 1303–04

(11th Cir. 2020) (Moore, J., dissenting) (collecting

cases). Of the circuits that have reached the merits

19

of this issue, the Eleventh Circuit is the sole dissenter. Id. at 1303–04 (Moore, J., dissenting). It ruled

that the favorable-termination element “requires

only that the criminal proceedings against the plaintiff formally end in a manner not inconsistent with

his innocence on at least one charge that authorized

his confinement.” Id. at 1295. Thus, any “formal

end” to a proceeding satisfies this standard “unless it

precludes a finding that the plaintiff was innocent of

the charges that justified his seizure, which occurs

only when the prosecution ends in the plaintiff’s

conviction on or admission of guilt to each charge

that justified his seizure.” Id. If adopted by this

Court, such a rule would apply to thousands of

routine dismissals by district attorneys in New York

State each year, opening the courthouse gates to a

flood of meritless claims.

A. The Realities of New York Criminal

Practice

To understand why, a review of New York practice

as it relates to a prosecutor’s decision not to go

forward with a case is illustrative. In New York, a

prosecutor can dismiss a case that has been filed in

one of three ways.

The first way, by far the most common, is an Adjournment in Contemplation of Dismissal (commonly

referred to as an “ACD”). A court can only grant an

ACD with the consent of both the prosecutor and the

defendant.

N.Y. Crim. Proc. Law § 170.55(1)

(McKinney). Once granted, the charges are adjourned without date with the understanding that

they will be dismissed in six months’ time unless the

prosecutor moves to restore the case to the calendar.

N.Y. Crim. Proc. Law § 170.55(2) (McKinney). As a

20

condition of this munificence, a court can impose a

temporary restraining order for the duration of the

ACD, can require the defendant to participate in

dispute resolution and pay restitution, or it can

require community service. N.Y. Crim. Proc. Law §

170.55(3), (5), & (6) (McKinney).

No statutory

standard or criteria exists for granting an ACD, nor

must any reason be placed on the record, but as a

practical matter prosecutors typically agree to them

when the charged crime is a low-level or technical

offense and when they believe the crime is “not likely

to be repeated and constituted only a de minimus

threat to the public peace.” N.Y. Crim. Proc. Law §

170.55 (McKinney) (Preiser Practice Commentaries).

Importantly, as it relates to the issue at hand, the

statute affirms that an ACD is not “a conviction or

an admission of guilt.” N.Y. Crim. Proc. Law §

170.55(8) (McKinney).

The second way a dismissal may be granted by a

prosecutor in New York is through a mechanism

outlined in section 170.40 of the Criminal Procedure

Law.3 This was the method used in this case.

Under this section of law, the prosecutor, defendant,

or the court sua sponte may move to dismiss a case in

the “interest of justice” when some “compelling

factor, situation, or circumstance” exists that renders

further prosecution unjust. N.Y. Crim. Proc. Law §

170.40 (McKinney).4 In deciding whether or not to

3 Section 170.40 applies to misdemeanors. A parallel provision of law, otherwise identical, applies to dismissals of indictments. See N.Y. Crim. Proc. Law § 210.40 (McKinney).

4 Technically, dismissal pursuant to this section of law can be

granted without the prosecutor’s consent.

But for purposes of

21

grant such a motion, the court must consider a

number of factors, which largely track the standards

prosecutors consider in making their own determination about whether or not to pursue a case. Compare

N.Y. Crim. Proc. Law § 170.40(1)(a)-(j) (McKinney)

with NDAA Standard 4-1.3 (a)-(q) and ABA Standards § 3-4.4(a)(i)-(xvi). Specifically, the court must

weigh: the seriousness of the offense, the harm it

caused, the evidence of guilt, the history and character of the defendant, any misconduct by police, the

purpose and effect of punishment, the impact of

dismissal on the welfare of the community, the

impact of dismissal on public confidence in justice,

and any victim’s views. N.Y. Crim. Proc. Law §

170.40(1)(a)–(i). Finally, there is a catch-all provision to include “any other relevant fact indicating

that a… conviction would serve no useful purpose.”

N.Y. Crim. Proc. Law § 170.40(1)–(j).

Notably, the statute requires a court to set forth on

the record its reasons for granting such a motion.

N.Y. Crim. Proc. Law § 170.40(2). This requirement

is intended to allow for meaningful appellate review

if it is required. People v. Rickert, 58 N.Y.2d 122, 128

(1983). But, as a practical matter, the court’s reasoning is often not required. New York courts have

suggested that it would be a “rare” case indeed where

a court should not grant a motion to dismiss brought

by both parties. Soares v. Carter, 979 N.Y.S.2d 201,

205 (N.Y. App. Div. 2014), aff’d, 32 N.E.3d 390 (N.Y.

2015). And where both parties consented to the

motion, like in this case, neither would have standing to appeal, making the necessity for the court to

this case, our focus is on dismissals initiated or consented to by

the prosecution.

22

place its reasoning on the record less compelling.

While a defendant could insist upon strict adherence

to the statute, his acquiesce to a relaxed procedure is

his choice. People v. Lawrence, 474 N.E.2d 593, 597

(N.Y. 1984) (noting that generally “the parties to a

litigation may adopt their own rules by the simple

expedient of failing to object”).

Finally, even if a court refuses to grant a motion to

dismiss that the prosecutor supports, he can always

end the case in another way: by taking a knee.

Because a district attorney in New York has “broad

discretion in determining when and in what manner

to prosecute a suspected offender,” People v. Di

Falco, 377 N.E.2d 732, 735 (N.Y. 1978), it follows

that he can choose not to contest a suppression

hearing, resulting in a dismissal. Soares, 979

N.Y.S.2d at 206). Such a course would not be a mere

power play: when a prosecutor has determined

dismissal is required to do justice (for whatever

reason), it becomes an ethical imperative for him not

to go forward as an “independent administrator of

justice” NDAA Standard 1-1.1; see Point I-B, supra.

For obvious reasons, this method of dismissal is rare.

As explained above, see Point I, supra, dismissals

under each of these methods are seldom due to a

problem with the case. Instead, prosecutors seek

dismissal pursuant to their duty to do justice for a

myriad of reasons that have nothing to do with the

strength of the evidence.

Sometimes the reasons for dismissal will appear on

the record, other times they will not. Defendants

themselves have a role to play in this. ACDs require

no opportunity to make a record of why they are

offered, but even when a prosecutor offers one a

23

defendant is never obliged to accept it. N.Y. Crim.

Proc. Law § 170.55(2) (McKinney). Instead, the

defendant can make a motion to dismiss in the

interests of justice—a motion which requires making

a record of the reasons for dismissal. N.Y. Crim.

Proc. Law § 170.40(2). The decision to grant such a

motion necessarily “hinges on the production of facts

in the possession of the prosecution and the defendant.” People v. Banks, 954 N.Y.S.2d 255, 257 (N.Y.

App. Div. 2012) (internal quotations and alterations

omitted). The defendant could make such a motion

alleging a lack of evidence or police misconduct. N.Y.

Crim. Proc. Law § 170.55(1)(c) & (e) (McKinney). If

the prosecutor joins the motion, the defendant will

have made his record. If the prosecutor opposes, the

court will resolve the motion and make a record for

him. Even if the prosecution makes the motion to

dismiss, the defendant can always force a record to

be made simply by insisting on strict adherence to

the procedure laid out in statute. Finally, if the

prosecution takes the third route and forces a dismissal at a suppression hearing or an acquittal at

trial, this would count as a “favorable termination” of

the case under the majority rule. In all circumstances, the defendant’s rights would be preserved.

In our view, this common sense rule respects the

reality that most of a prosecutor’s discretionary

decisions to drop a case have nothing to do with the

evidence of a defendant’s guilt. It also places the

burden of making and preserving the record firmly

where it belongs: on the soon-to-be plaintiff. This

rule thus “best reflects the need to balance an individual’s right to be free from unreasonable criminal

prosecutions with the public policy which favors the

24

exposure of crime.” Swick v. Liautaud, 662 N.E.2d

1238, 1243 (Ill. 1996).

B. Negative Impact on the Cause of Justice

The Eleventh Circuit’s rule would turn reality on

its head. Any dismissal for any reason would automatically count as a “favorable termination,” thereby

converting all dismissals into potential § 1983

claims. See Laskar, 972 F.3d at 1295. This could

cause significant negative downstream consequences.

First, it would open the courthouse gates to a veritable flood of new claims. Data from the New York

State Division of Criminal Justice Services illustrates the potential scale of this deluge. In 2019,

237,437 adult arrests where the top charge was a

misdemeanor were disposed of in New York courts.

N.Y. Div. Crim. Justice Services, (Adult Arrests (18

and Older) Disposed) (2021), https://perma.cc/M7VM8F8V. Approximately 55% of those arrests resulted

in a conviction, whether by trial or a plea bargain.

Id. Only 362—0.2%—of those cases resulted in an

acquittal. Id. Dismissals dominated the bulk of the

remaining cases: just over 20% of cases ended in an

ACD (over 47,000 cases) and another 18.4% (over

43,000) were dismissed for other reasons, including

procedural defects, merit, and the interests of justice.

Id.

Felony data tells the same story. In 2019, a total of

124,104 adult arrests where the top charge was a

felony were disposed of in New York courts. Id. Just

under 67% of those ended in a conviction. Id. A

mere 378, or 0.3%, were acquitted. Id. ACDs accounted for 6.8% of disposals (nearly 8,500 cases) and

other dismissals constituted over 20% of cases (near-

25

ly 25,000). Id. These numbers are, again, from only

one state.

Traditionally, “[a]ctions for malicious prosecution

[have been] regarded by law with jealousy” and

courts have recognized that “they ought not to be

favored but managed with great caution.” Roblyer v.

Hoyt, 72 N.W.2d 126, 128 (Mich. 1955) (quoting Van

Sant v. Am. Express Co., 158 F.2d 924, 931 (3d Cir.

1946)). By dispensing with the indications of innocence rule, the Eleventh Circuit’s approach would

abandon that intuition and significantly ease the

path for would-be plaintiffs. Without the “useful

filtering mechanism” afforded by the indications of

innocence rule, Cordova v. City of Albuquerque, 816

F.3d 645, 654 (10th Cir. 2016), all a defendant would

realistically have to do to make out a prima facie

claim would be to plead a lack of probable cause, see

Laskar, 972 F.3d at 1306 (Moore, J., dissenting).

This could allow a guilty defendant to repurpose a

prosecutor’s mercy in dismissing his case into “a

bonus for a failure of justice,” See Gedratis v. Carroll,

225 N.W. 625, 629 (Mich. 1929).

Most of those newly-minted claims would be, in

reality, meritless, as the prosecutor considering a

discretionary dismissal would doubtless know. But

he would also know that any dismissal—whether for

scarcity of resources, sympathy for the defendant, or

policy reasons—could easily turn into a federal case.

This would place prosecutors in an unfortunate and

awkward position. Should they dismiss the case

anyway, consequences be damned? Or should they

seek to avoid a flood of frivolous, vexatious litigation

that could tie police up in court and stymie law

26

enforcement response to crime? What would Justice

require of them?

We do not know the answer to that question. But,

like our colleagues, a group of current and former

prosecutors as Amici in support of the petitioner, we

are concerned with the “perverse incentives” the

wrong rule might create. Brief for Former Prosecutors at 7. But, contrary to their assertion, it is the

Eleventh Circuit’s novel rule that would create

perverse incentives by “attaching a consequence to

prosecutorial decisions” to dismiss a case, not the

Second Circuit’s adherence to the majority rule. Id.

Under the current rules, prosecutors can make

decisions about dismissal without any particular

regard to potential malicious prosecution claims. In

our view, it is best to keep it that way.

But the Eleventh Circuit’s rule would make prosecutors bit-players in every future malicious prosecution claim. This ethically fraught eventuality—

regular involvement in either starting or preventing

meritless civil claims—is precisely what both we and

our colleagues seek to avoid. This Court can escape

that new reality by adopting the majority rule and

requiring some “indication of innocence” in order to

bring a malicious prosecution claim under § 1983.

*

*

*

Each day, prosecutors are called upon to decide

whether to continue or dismiss charges against

defendants. When they do dismiss, most of the time

it has precious little to do with the strength of the

evidence. “The life of the law,” Justice Oliver Wendell Holmes wrote, “has not been logic: it has been

experience.” O. Holmes, The Common Law 1 (1881).

27

Our experience tells us that any rule of law that

touches upon the many thousands of criminal cases

that move through our criminal court system each

year should respect the on-the-ground realities of

criminal practice in this country. In our view, the

majority rule does, and the Eleventh Circuit’s does

not.

CONCLUSION

For the foregoing reasons, the judgment below

should be affirmed.

Respectfully submitted,

H ON. J. ANTHONY JORDAN

DISTRICT ATTORNEY

ASSOCIATION OF THE

STATE OF NEW YORK

3 Columbia Place

Albany, NY 12210

(518) 598-8968

VINCENT STARK*

CHRISTOPHER D. H ORN

ALBANY COUNTY DISTRICT

ATTORNEY’S OFFICE

6 Lodge Street, 4th Floor

Albany, NY 12210

(518) 487-5093

vincent.stark@albanycountyny.gov

*Counsel of Record

Counsel for Amicus Curiae