"Where's the Crime?" I Ask, Where's the Prosecutor?

by: DW Law Student

Thu Mar 11, 2010 at 10:24:51 AM EST

As the election approaches, both parties and indeed candidates within each party will trot out their grand plans and message calendars.  One week the issue will be crime, the next the environment, and so on.  As a law student, however, I wanted to go deeper than what the candidates presented to me in neat, sound-byte-ready packages.  I did what any law student with free Lexis access and 90 minutes to fill would do: I ran a search on each (democratic) candidate for attorney general, in an attempt to build a hypothesis about legal philosophies.

I started with Farmington Hills attorney Richard Bernstein.  With heavily publicized legal fights (and some victories) in cases ranging from suing the University of Michigan to accommodate the disabled in the Big House to requiring a local municipality to make traffic roundabouts safer and accessible to the blind, he seems to have the "advocate" part pretty well covered.  His interpretation of his role as an attorney is classic Frank Kelley, using his position and skills to unabashedly pursue justice for those members of society often left without an advocate.  (Frank Kelley was Michigan, and the country's, longest serving attorney general whose trademark was consumer advocacy.)  

Then I got to David Leyton, Genesee County Prosecutor.  Nothing very remarkable jumped out at me initially, most of it being standard-issue articles about the prosecutor going after drug dealers and sex offenders.  No problem there.  My attention was, however, immediately drawn to a press clipping from December 6, 2006, in the Flint Journal, entitled "Leyton: Baring is No Crime."  Having just finished studying the traffic stop in Criminal Procedure, the provocative title piqued my interest.

The story was about a woman stopped at 2AM in a remote part of Genesee county for running a stop sign.  Once pulled over, the officer ran a warrant check on her male passenger, who happened to be her relative, and upon discovering an outstanding bench warrant, took the man into custody.   He then returned to her vehicle, asking for "two reasons" why he shouldn't arrest the man.  The woman then exposed her breasts to the officer, and her relative was not arrested.  

An internal police department investigation found that "the woman made it clear what she was about to do, asking if she would get arrested for indecent exposure. Afterward, the officer allegedly told the woman the incident would be the two's 'little secret.'"  (Flint Journal, December 6, 2006.)

When asked about the incident for the Flint Journal article, Leyton's reply was "where's the crime?"  You read that right.  Leyton's comment about the incident was that he did not see any misconduct or crime committed.

Given the opportunity to elaborate on his statement, Leyton remarked that if the officer

"provoked the exposure incident, it could be deemed wrongful conduct in office, a misdemeanor-level offense that he said would best be handled under local ordinance or with departmental discipline. He says now that his "where's the crime?" quote - which came out as a blanket statement - was meant to rule out extortion, a more serious charge that entails a threat of injury to the victim or close family member.  (Flint Journal, December 10, 2006).

I understand that a prosecutor has good reasons to defer to law enforcement officers in many situations.  Even the United States Supreme Court has held in numerous cases that the courts will defer to officers in certain circumstances, given the unique nature of a roadside traffic stop.  Traffic stops, as the Supreme Court has recognized, are characterized by unequal power relationships and the possibility of abuse of authority.  However, allegations of sexual harassment are conspicuously absent from the kinds of judgments permissibly left to internal police department procedures.  

The interesting twist to this case, however, comes in the fact that the State Police official investigation and the internal police investigation arrived at different conclusions, the latter absolving the officer of misconduct (but still finding that if a wanted man was arrested and then released there is willful neglect of the officer's duty) and the former siding with the victim.  Leyton conceded that if the wanted man was actually arrested and then released again, there would have been an offense committed.  Yet, if this were true, at least a cursory investigation would be warranted, right?

My comprehension of the role of prosecutor does not conform with Mr. Leyton's.  Prosecutors work for the people, not for the police or the municipality.  If there was even the remotest possibility of misconduct, Leyton should have championed the rights of the victim, not deferred to township politics.  Leyton's choice to side with the police on this is disturbing to me as a citizen and as a motorist.  At the end of the day, this is the kind of encounter I hope is rare on our roads today, but if and when it does happen, to whom should a citizen turn for assistance?  These situations will not usually have witnesses.  The Opinion page from December 10, 2007 in the Flint Journal puts it best:

"What kind of persuasive evidence can a woman be expected to produce to prove her claim - especially if instead of a level playing field, she faces a morass of local politics, conflicts and allegiances?"