Jameis Winston Case: Another Prosecutor Invokes an Incorrect Standard for Prosecution

William N. Meggs, the State's Attorney for Florida's Second Judicial District, declared last week that no charges would be filed against Jameis Winston, the Florida State football player accused late last year of sexual assault against a 19 year-old fellow student. In so doing, he made this statement with regard to the standard he was under when considering whether to charge Winston:“We have a duty as prosecutors to determine if each case has a reasonable likelihood of conviction,” said Meggs, who added that the evidence was carefully examined. “After reviewing the facts in this case, we do not feel that we can reach those burdens.”I've been able to review the released details of the case. It appears from witness statements and other circumstances that Meggs had a difficult (although not impossible) case to prove had he chosen to charge Winston with a sex crime. My issue isn't with Meggs' decision not to prosecute; it's with the standard he articulated before the press as to why he did not do so. That standard, at least according to everything I know that guides prosecutorial decisions, is incorrect.I know of two nationally accepted sources for charging standards for prosecutors. The first is from the American Bar Association's Criminal Justice Standards, Prosecution Function.  The ABA directs prosecutors to charge only cases with "admissible evidence to support a conviction." The second is from the National District Attorneys Association National Prosecution Standards, which states that prosecutors should only bring charges when the prosecutor believes the charges "can be substantiated by admissible evidence" at trial.Note the key phrases: The existence of admissible evidence that would support a conviction. The ability to substantiate charges with admissible evidence at trial. Neither "support" nor "substantiate" connote anything about a likelihood of the defendant being convicted.Meggs is not the first prosecutor I've seen invoke an incorrect standard with regard to declining to press charges. Unfortunately, too many tend to claim that cases "cannot be brought" unless the prosecutor bringing them believes they are likely to result in a conviction, or some very similar language. That simply isn't correct. A case does not have to have a likelihood of success in order to be prosecuted. It does not have to be a "slam dunk" or anything close to it. It simply needs to be a matter that can be brought in good faith, competently and ethically, with evidence to support a conviction that is likely to be admissible in a court of law. What prosecutors are specifically admonished not to do, in fact, is to consider what effect an acquittal might have on their conviction rate or any political considerations that might come to bear from bringing a case.It wasn't long ago when no sexual assault victim could hope to have her case heard unless remarkably favorable circumstances (like a videotaped full confession) existed to back up her allegation. Victims of color, victims with disabilities, sex workers or others with perceived compromised circumstances were denied justice even more, and most still are. Prosecutors who have made the decisions to deny these victims their day in court have been entitled to do so under the accepted standards, for any number of reasons.  It's not malpractice or unethical for a prosecutor to decline to press charges, even if s/he believes the complainant, if the reality is that admissible evidence is lacking, or under a tougher calculus involving available resources or other non-politically driven considerations. The reality is that American prosecution is a highly imperfect system, involving subjective judgments and competing priorities. But that reality must be faced up to, analyzed transparently, and admitted freely. Things are improving, and part of what courageous prosecutors do to move a community forward is to focus on the pursuit of justice in less obvious cases. But in the meantime, if a case won't be brought because a prosecutor doesn't believe it can be won or that s/he lacks the resources to do it correctly, then that must be stated as such. Hiding behind an incorrect standard for when cases can be brought is deceptive and intolerable. The communities our prosecutors serve, and most importantly the victims they encounter, deserve more than that.