On Sunday mornings, in churches across America, many of us count on ministers of the gospel to use their influential positions to strengthen people’s faith. We know all too well that recent religious scandals have weakened confidence in this foundational institution.
On the other days of the week, in the courthouses of our country, we have similar expectations of a different kind of minister – prosecutors. In Ohio and other states, prosecuting attorneys are governed by ethics rules that identify them as "ministers of justice." While their pursuit is secular, we still rely on them to do the right thing. When they don’t, our faith in the legal system is shaken.
Sadly, the actions of Chicago prosecutors in the Jussie Smollett have cast deep doubt and raised vexing questions about access to justice. We’re all now left to wonder whether political influence and undue deference to celebrity can tilt the scales of justice in a fashion otherwise unavailable to an accountant in Avondale or a waitress in Walnut Hills.
As an Ohio prosecutor, I’ve made tough decisions about which suspects should face charges and which ones deserve a pass. Criticism of these assessments is easy to launch. Having been on the receiving end of such scrutiny, I hesitate to indulge. But the Smollett dismissal is such an outlier and perversion of prosecutorial discretion, it must be addressed.
In Ohio, hundreds of criminal charges are dismissed every day. Utilizing a process called "diversion," prosecutors make a determination that a defendant in a low-level criminal matter has learned his or her lesson and is unworthy of a full-blown trial and undeserving of a conviction. But there’s a key precursor to these dismissals.
A 2017 survey of diversion programs in Illinois by the Center for Health and Justice found that diversion programs that take place after a person has been charged with a crime "generally require a guilty plea and associated documentation to participate." And for those diversions that don’t require a guilty plea, the prosecutor expects a defendant to show contrition of some sort.
The unabashed public denial issued by Jussie Smollett following his dismissal was far from contrition. The actor regurgitated his initial false claims, thereby exposing the lack of merit in the local prosecutor’s decision. I don’t know much about the character Smollett plays on TV, but his portrayal of a victim deserves a trip back to acting school.
As we look even closer, we see more rot in the floorboards of this dismissal. According to a 2016 New York Times investigation, diversion typically is offered only in minor cases like shoplifting, drug possession, and petty theft. That conclusion is consistent with my years of work in the court system. Voluntary dismissals of multiple felonies – particularly involving serious matters like hate crimes, falsification, and abusing legal process – are rare.
The mishandling of this matter involves much more than whether a hate crime huckster avoids responsibility for his heinous hoax. It’s become Exhibit Z – perhaps the last bit of testimony – in the case that Americans have against public officials who fail to abide by their oath of office.
The final verdict is easy to predict: ministers of justice who forgive the legal sins of the powerful while recommending the wrath of punishment for the powerless simply have no place in a temple of trust.
Columbus attorney Mark R. Weaver is the former deputy attorney general of Ohio and has worked as a prosecutor for two decades, including prosecuting public officials, child molesters and murderers. He is the author of the book “A Wordsmith’s Work.” Twitter: @MarkRWeaver.