Prosecutorial Ethics, Date Rape, and “Buyer’s Remorse”

Republican Senate candidate Ken Buck is getting in a lot of hot water, and justifiably so, for refusing to prosecute a rape case when he was a county DA because, as he told the rape victim, jurors would see the case as one of “buyer’s remorse.”  Buck has since repeated that phrase on Meet The Press, and appears to stand by it.  The victim had known the assailant and invited him to her room; the assailant admitted to prosecutors that he had had sex with her without her consent.

Now, Buck is a smooth talking guy — especially for a Tea Party candidate — and on MTP he said that he didn’t think he could go ahead with the case because he couldn’t get a conviction, that the jurors wouldn’t buy it.  That seems reasonable: do we want prosecutors indicting people even if they think they can’t convict?  Well, yes: we do.  Buck’s defense here rests on a verbal sleight-of-hand — and perhaps a basic misunderstanding of his job.

The relevant ABA standard says that a prosecutor should not prosecute if he does not think that he can prove the case beyond a reasonable doubt.  But that’s very different from saying you shouldn’t prosecute if you can’t get a conviction, because you may prove the case beyond a reasonable doubt but lose because of unreasonable jurors.  Analogy: in the 1950’s in the south, a white man rapes a Black woman, with uncontrovertible evidence.  Should the prosecutor refuse to bring the case because “jurors around here won’t buy it?”

The ABA has answered that question, and the answer is no:

Standard 3-3.9 Discretion in the Charging Decision

   (e) In cases which involve a serious threat to the community, the prosecutor should not be deterred from prosecution by the fact that in the jurisdiction juries have tended to acquit persons accused of the particular kind of criminal act in question.

So for Buck to say that he wouldn’t bring the case because of what the jurors would think means that he would at least violate the spirit behind the ABA standard.

Of course, there is an alternative explanation that would get Buck off the hook on possible ignorance/violation of ethical standards: he doesn’t think that a confessed date rapist is a “serious threat to the community.”  And I think that that is what happened.  It wasn’t that Ken Buck thought that jurors would think it was “buyer’s remorse”; it is that Ken Buck thought it was buyer’s remorse.

Buck clearly has issues on gender and sexuality.  He said he would make a better Senator than his primary opponent, Lieutenant Governor Jane Norton, because he “doesn’t wear high heels.”  He compares homosexuality to alcoholism.  And he clearly has issues with legal ethics, drawing a letter of reprimand from a Republican US Attorney (after an investigation by DOJ’s Office of Professional Responsibility under President Bush) for belittling a pending federal case to the defendants’ attorneys.

Big massive caveat: on Meet the Press, Buck said that there were other reasons why didn’t prosecute the date rape case, although he did not disclose details.  And he probably shouldn’t have.  In many circumstances, you might give the prosecutor the benefit of the doubt.  But the pieces are fitting together, and they do not look good for Ken Buck.

It’s one more reason to help the campaign of Michael Bennet, who is an outstanding Senator in his own right, here.  The Colorado race, written off by the cognoscenti, has now moved firmly into toss-up territory.

It’s also a good reason to watch this commercial: