Here are a few paragraphs from a two federal court (District Court) rulings on selective prosecution. It is a good outline of the legal standard to challenge a federal indictment (or really the decision to seek an indictment) and what former president Trump will have to prove. Selective prosecution is usually based upon race (recently) but it can be based upon the “exercise of constitutional rights” and other distinguishing factors. There needs to be a classification and that classification needs to be arbitrary – meaning not based upon any legitimate law enforcement purpose and supporting a claim that the classification was unfair. Here are the quotes:
“When seeking an order compelling discovery on a selective prosecution claim, a defendant must first make a threshold showing that she has a colorable basis for the claim. See United States v. Kerley, 787 F.2d 1147, 1150 (7th Cir.1986). This means the defendant must submit “some evidence tending to show the existence of the essential elements of the defense.”
Id. The essential elements of a selective prosecution claim are: (1) the defendant was “singled out for prosecution while other violators similarly situated were not prosecuted; and (2) the decision to prosecute was based on an arbitrary classification such as race, religion, or the exercise of constitutional rights.” United States v. Monsoor, 77 F.3d 1031, 1034 (7th Cir.1996); see also United States v. Cyprian, 23 F.3d 1189, 1195 (7th Cir.1994). As to the first element, the defendant must present some credible evidence that similarly situated defendants of other classifications could have been prosecuted, but were not, before she is entitled to an order compelling discovery. See Armstrong, 517 U.S. at 469–70, 116 S.Ct. 1480; see also United States v. Westmoreland, 122 F.3d 431, 434 (7th Cir.1997).”
U.S. v. Strickland (S.D. Ind. 2000) 113 F.Supp.2d 1272, 1275
“First, [the state actor] must single out a person belonging to an identifiable group … for prosecution even though he has decided not to prosecute persons not belonging to that group in similar situations. Second, he must initiate the prosecution with a discriminatory purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to.” Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir. 1997) (first alteration in original) (quoting United States v. Anderson, 923 F.2d 450, 453 (6th Cir. 1991))
Daniel Horowitz is expert in complex criminal cases. If you need assistance, call (925) 291-5388.
CLICK IMAGE BELOW FOR CONFIDENTIAL CONTACT FORM.
The post Donald Trump Selective Prosecution Defense appeared first on Lawyers In Lafayette.