476
Stevens, J., dissenting
I believe that the defendants' request did not satisfy this threshold. Were the "selective prosecution" defense valid in this case—i. e., were there "clear evidence," United States v. Chemical Foundation, Inc., 272 U. S. 1, 14 (1926), that the Federal Government's prosecutorial policy "had a discriminatory effect and . . . was motivated by a discriminatory purpose," Wayte v. United States, 470 U. S. 598, 608 (1985), it should have been fairly easy for the defendants to find, not only instances in which the Federal Government prosecuted African-Americans, but also some instances in which the Federal Government did not prosecute similarly situated caucasians. The defendants' failure to do so, for the reasons the Court sets forth, amounts to a failure to make the necessary threshold showing in respect to materiality. See 2 C. Wright, Federal Practice and Procedure § 254, pp. 66-67 (2d ed. 1982); United States v. Balk, 706 F. 2d 1056, 1060 (CA9 1983); United States v. Johnson, 577 F. 2d 1304, 1309 (CA5 1978); United States v. Murdock, 548 F. 2d 599, 600 (CA5 1977).
Justice Stevens, dissenting.
Federal prosecutors are respected members of a respected profession. Despite an occasional misstep, the excellence of their work abundantly justifies the presumption that "they have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926). Nevertheless, the possibility that political or racial animosity may infect a decision to institute criminal proceedings cannot be ignored. Oyler v. Boles, 368 U. S. 448, 456 (1962). For that reason, it has long been settled that the prosecutor's broad discretion to determine when criminal charges should be filed is not completely unbridled. As the Court notes, however, the scope of judicial review of particular exercises of that discretion is not fully defined. See ante, at 469, n. 3.
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