I've got a defense lawyer who periodically files a motion to quash indictment based on selective prosecution (when he has nothing else to file). Although these are frivolous motions, that's not the main issue. The really irritating thing is that this time he has subpoenaed most of the State's witnesses as well as a bunch of former and present county officials with which his client has had a conflict (often more imagined than real). His original motion was extremely vague. I filed a motion asking that he clarify and specify the other instances of alleged misconduct which were not prosecuted. The def atty agreed to my motion but the judge really didn't "order" him to comply. But the def atty did agree on the record before the judge to comply with my motion to provide specific details by a certain date. The def atty pretty much ignored his agreement but filed (months after the agreed date) a half-hearted amended motion to quash which doesn't provide any more information except for listing the names of all of his "witnesses." On top of it all, I've got a new judge who wasn't involved in the earlier "agreement." However, this judge will take care of business. He's straight down the middle, is totally fair, and will follow the law. I'm looking for ideas on how to handle this. I'm considering reurging my original motion for the defense to provide clarification and specifics re his selective prosecution motion. Also, I'm thinking about contacting these "witnesses," confirming that they know nothing and haven't even been talked with about this, and filing a motion to quash their subs as harassment, etc. Any other ideas? (Sorry about the length of the post...)

I am reluctant to post this for fear it will expose me as a moron, but what is "selective prosecution," and how does that stop your prosecution of a case? I thought we were supposed to selectively prosecute. Isn't that what "prosecutorial discretion" is?

Terry -it's like entrapment. It exists, but most of us will never see a successful claim raised by a defendant.

From the Criminal Practice Guide, "Claims of selective prosecution may be judged by ordinary equal protection standards. Thus, the defendant must make a showing that the selection process had a discriminatory effect and was motivated by a discriminatory purpose [ Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985)] . To meet this burden, the defendant should show that he or she was singled out for prosecution and that it was done because of an impermissible condition such as race, religion, or the desire to prevent the defendant's exercise of constitutional rights [see United States v. McCord, 695 F.2d 823, 826 (5th Cir. [La.] 1983), cert. denied, 460 U.S. 1073 (1983)] . This burden was held to be met when the defendant showed that he had been engaged in a protected First Amendment activity, that he had been singled out for prosecution, even though the government was aware others had violated the law, and that the government had followed unusual discretionary procedures in deciding to prosecute [see United States v. Greene, 697 F.2d 1229, 1236 (5th Cir. [Tex.] 1983), cert. denied, 463 U.S. 1210 (1983) focusing prosecution upon most vocal in opposition to law not impermissible, barring showing of invidious purpose]."

I have never had a motion like that before. Thanks for the explanation.