The opinion of the court was delivered by: SHARP
ALLEN SHARP, CHIEF UNITED STATES DISTRICT JUDGE
I. Synopsis of the Law of Selective Prosecution
In our criminal justice system, the government retains broad discretion of whom to prosecute. United States v. Goodwin, 457 U.S. 368, 380 n. 11, 73 L. Ed. 2d 74, 102 S. Ct. 2485 (1982). So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Bordenkircher v. Hayes, 434 U.S. 357, 364, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978).
Although prosecutorial discretion is broad, it is not unfettered. Selectivity in the enforcement of criminal laws is subject to constitutional constraints. United States v. Batchelder, 442 U.S. 114, 125, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979). In particular, the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification, Bordenkircher, 434 U.S. at 364, including the exercise of constitutional rights. Goodwin, 457 U.S. at 372.
A claim of selective prosecution attacks not the merits of the prosecutor's case against the defendant, but the prosecutor's choice to proceed against the defendant while declining to bring similar criminal charges against others who appear equally culpable. In effect, a defendant's selective prosecution challenge asks of the prosecutor, "Why have you singled me out?"
It is appropriate to judge selective prosecution claims according to ordinary equal protection standards,
Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962), which prohibit a state from taking action which would "deny to any person within its jurisdiction the equal protection of the laws." This guarantee, which applies with respect to the enactment of laws by the legislative branches, also extends to the conduct of the executive branches in the enforcement of these laws. In the oft-quoted language of Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886):
Though the law itself be fair on its face and impartial in appearance yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.
Although some authority is to be found that a selective prosecution claim is a "defense" which is to be raised during the course of the trial and sent to the jury as part of the case -- just as with, say, a defense of self-defense -- most commentators seem to hold otherwise. Because the issue of selective prosecution relates not to the guilt or innocence of the accused, but rather addresses itself to a constitutional defect in the institution of the prosecution, the claim should be treated as an application to the court for a dismissal or quashing of the prosecution and thus should be decided by the court.
Because courts presume that criminal prosecutions are undertaken in good faith, without intent to discriminate, the defendant bears the initial burden of demonstrating selective enforcement. See Love v. State, 468 N.E.2d 519 (Ind. 1984), cert. denied, 471 U.S. 1104, 85 L. Ed. 2d 851, 105 S. Ct. 2335 (1985). This burden exists as to all three elements of a selective prosecution claim.
A defendant's more immediate hurdle, however, is to make a sufficient showing to require that an evidentiary hearing be held. In a motion for an evidentiary hearing, the defendant must make out a prima facie case of selective prosecution.
If the defendant meets this hurdle, he then has the burden of going forward with the evidence at the evidentiary hearing. United States v. Falk, 479 F.2d 616 (7th Cir. 1973).
Courts are understandably reluctant to require prosecutors to testify as to their motives in seeking an indictment, even when this might be the only way the defendant could establish his claim. Courts are likewise reluctant to order discovery of government documents which might reveal a prosecutor's motive because to hold otherwise would encourage the assertion of such defense, no matter how spurious, as a means of burdening criminal trials with massive discovery of material completely irrelevant to the defendant's case.