Independent Examiner
Selective Prosecution Interview
October 2016 Staff reporter
The Independent Examiner received requests from readers to explain how and why the Prosecutor in the Gary DeMarzo/Sam Lashman case decided to prosecute. We cannot answer that as only Cape May Prosecutor Robert Taylor knows exactly what went into his decision. But we did the next best thing. One of our staff reporters interviewed an experienced attorney who has worked both as a defense attorney, a law clerk and an Appeals Court lawyer. We hope what he has to say is helpful.
IE: Mr. Jackson what exactly is the definition of Selective Prosecution ?
Mr. Jackson: Selective Prosecution is usually raised as a defense by a defendant who thinks they have been singled out for prosecution for reasons other than they have committed a crime. In other words they are being discriminated against by the prosecutor
IE: Can anyone raise this as a positive defense?
Mr. Jackson: Well it depends. The claim of Selective Prosecution arises out of the Equal Protection clause of the 14th Amendment. So it usually entails a person of a certain race, religion, ethnicity gender preference or other protected classes claiming that they are the reasons he is being prosecuted whether or not a crime has been committed. The United States Supreme Court has defined the term as follows: “A selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution”. The defense is rarely successful; some authorities claim, for example, that there are no reported cases in at least the past century in which a court dismissed a criminal prosecution because the defendant had been targeted based on race.
IE: Do you think the DeMarzo case fits into a Selective Prosecution criteria?
Mr. Jackson: I am not personally involved or familiar with the case but based on what you have described to me I would say no because I do not see a protected class to which Mr. DeMarzo belongs.
IE: Why is that?
Mr. Jackson: The Supreme Court of the United States has held that selective prosecution where the enforcement or prosecution of a criminal defendant is to quote the Court “directed so exclusively against a particular class of persons … with a mind so unequal and oppressive”that the administration of the criminal law amounts to practical denial of Equal Protection of the law” (U.S. V Armstrong, 517 U.S. 456,116 S. Ct. 1480, 134 L. Ed. 2D687 [1996] quoting Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 [1886]). Specifically, police and prosecutors may not base the decision to arrest a person for, or charge a person with, a criminal offense ased on “an unjustifiable standard such as race, religion, or other arbitrary classification” ( U.S. v. Armstrong , quoting Oyler v Boles, 368 U.S. 448, 82, S. Ct. 501, 7 L. Ed. 3D 446 [1962]). That does not seem to be the motivating factor here. But there may be another avenue available to this vindicated defendant.
IE: What would that be?
Mr. Jackson: Abuse of process. Or Malicious prosecution. Because in this instance it would appear that there existed an underlying ulterior motive in the prosecution of DeMarzo outside of the boundaries of regular law enforcement at least based on what the Judge stated from the bench in his comments on his ruling on the Motion for Summary Judgment.
IE: What actions would indicate this kind of abuse?
Mr. Jackson: Typically, the person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution. And then there is the common law action of Barratry. In common law, barratry is the offense committed by people who are “overly officious in instigating or encouraging prosecution of groundless litigation” or who bring “repeated or persistent acts of litigation” for the purposes of profit or harassment. I don’t know if New Jersey has a Barratry statute but Pennsylvania does.
IE: Is it hard to prove?
Mr. Jackson: Yes. They are usually not successful but sometimes they are. Given the numerous Grand Jury indictments and the Appeal Courts rulings this one may have a shot.
IE: Thank you Mr. Jackson
Independent Examiner 