Playing childhood soccer in the fields of Montgomery County, one thing quickly became clear: the younger the players, the more likely they are to follow the ball around in an eager clump of arms, legs, and colorful jerseys. Children all want to kick the ball, so the notion of patiently staying in their assigned positions is often elusive. In time, they learn that the goals of the game are better achieved when players stay in their lane to wait for the ball or defend against the other team.
If Municipal Court Judge Marsha Neifield better understood this concept, she wouldn’t have resurrected the criminal case against Amtrak engineer Brandon Bostian, the key figure in the May 2015 derailment that left eight passengers dead and hundreds more injured.
The public is justly outraged at Bostian’s apparent negligence, given that the train accelerated to 106 mph on a 50-mph curve. Many no doubt applauded the judge’s decision. But, like a jumble of youthful soccer players, the judge was playing outside her designated position. She substituted her own judgment for the prosecutorial discretion of the elected district attorney, who had determined that there wasn’t enough evidence to prove Bostian acted with the “conscious disregard” the law requires for a prosecution.
While a judge overruling a prosecutor — particularly one under indictment like Seth Williams – might seem like justice to some, it creates troubling issues with the separation of powers inherent in our government.
Our founding fathers spent quite a bit of time in Philadelphia discussing how to protect their new nation from the abuses of power by the British monarchy. Indeed, 230 years ago this week, delegates began to arrive here to start deliberations that would result in the approval of the Constitution.
It’s not hard to imagine Virginia’s James Madison and Philadelphia’s own James Wilson strolling down Market Street, discussing the ideas of Aristotle, John Calvin, and John Locke — all proponents of separating governmental power.
Wilson, who later served as a U.S. Supreme Court justice and was the first professor of law at what would become the University of Pennsylvania, saw a king who brandished the powers available to him in a way that created (in the words of the Declaration of Independence) “a long train of abuses and usurpations.” Madison, Wilson, and their fellow delegates to the constitutional convention resolved to avoid the corruption that comes when too much power rests in any one office.
Their solution was as easy as the timeless childhood frolic of rock, paper, scissors. Everyone who plays this game quickly realizes that none of the symbols is all-powerful on its own. The same basic principle is the underlying reason why American checks and balances are fair. No branch has more power than the other.
Some judges don’t like this notion much. They think the judicial branch gets the last word. They’re mistaken.
Unlike judges, prosecutors are bound by rules of ethics that require them to only bring charges when they have good reason to believe they can prove each element of a crime. When that evidence is insufficient, they are ethically bound to decline prosecution. Indeed, Pennsylvania ethics rules give district attorneys a special role in the commonwealth’s judicial system. They must not seek to simply prosecute and convict. They must, rather, be a “minister of justice.” Sometimes, that means not bringing charges despite public demands.
In the criminal court system, district attorneys propose and judges and juries dispose. A judge has enough to worry about without taking on the responsibility of another player.
To the delight of the plaintiff’s attorneys seeking millions of dollars for their clients, the victims of this horrific crash, Pennsylvania Attorney General Josh Shapiro has played along and agreed to prosecute. Keystone state residents ought to wonder whether that decision was more about achieving justice in the court of law or, more worrisome, achieving headlines in the court of public opinion.
When an Amtrak engineer derails a train, it can cause a lot of damage. But when a judge derails the separation of powers that keeps corruption and tyranny at bay, other types of damage ensue. We’d be wise to be concerned about both.
Mark R. Weaver, a native of Abington, formerly served as the deputy attorney general of Ohio and is the author of “A Wordsmith’s Work” He teaches at the Ohio State University College of Law. @MarkRWeaver