When Prosecutorial Discretion Becomes a Commodity

When Prosecutorial Discretion Becomes a Commodity

Oklahoma history shows why no prosecutor should have the final, unreviewable power to decide when the criminal law will—or will not—be enforced

MIAMI, Okla. — Prosecutors need judgment.

They decide whether evidence is sufficient, whether witnesses are credible, what charges fit the facts, whether a plea agreement serves justice and whether limited public resources should be spent pursuing a case.

But there is another side to prosecutorial discretion that receives far less attention.

A prosecutor also possesses the power not to act.

The power not to charge.

The power to reduce a charge.

The power to dismiss.

The power to decline a referral.

The power to decide that conduct which might ordinarily result in prosecution will go no further.

Usually, those decisions are legitimate exercises of professional judgment.

But Oklahoma history demonstrates something that should concern every citizen regardless of politics:

Discretionary criminal-justice power has value. And anything with value can be corrupted.

That is not speculation.

It has happened here.

Mr. Yuk: When Protection Had a Price

More than half a century ago, northeastern Oklahoma became the setting for a federal prosecution that reads almost like organized-crime fiction.

It was real.

In United States v. Bishop, the U.S. Court of Appeals for the Eighth Circuit affirmed conspiracy convictions arising from an enterprise involving gambling, prostitution and bribery around Grove, Oklahoma.

The federal appellate opinion identifies Lewis Frank Grayson as an Oklahoma district attorney whose jurisdiction included the area around Grove.

A private club called Mr. Yuk opened near Grove in 1971. It soon encountered raids and liquor-law enforcement.

According to the evidence summarized by the appellate court, district attorney investigator George Husong later told club operator Jess Roberts that the raids could be stopped and gambling could be arranged.

The price, according to the testimony, was a percentage of the gambling proceeds.

The court record says Husong told Roberts that he and Grayson wanted 20 percent of the gambling proceeds in exchange for keeping other law-enforcement officers away from Mr. Yuk.

There was more.

In February 1972, a 1972 Chevrolet Impala was brought to Grove and given to Husong as part of the arrangement. The appellate opinion states that District Attorney Grayson subsequently used the automobile.

The convictions were affirmed.

The importance of that history goes beyond gambling.

What was being sold?

It was not merely information.

It was not merely access.

It was the exercise—and non-exercise—of government power.

Whether raids happened had value.

Whether charges survived had value.

Whether gambling was tolerated had value.

Whether government looked toward an operation or away from it had value.

The commodity was discretion itself.

Fifty Years Later, Ottawa County Saw It Again

It would be comforting to dismiss the Mr. Yuk prosecution as an artifact of another era.

Ottawa County cannot do that.

Between approximately February 2019 and April 2022, Ottawa County Assistant District Attorney Daniel Thomas Giraldi engaged in another corruption scheme involving prosecutorial discretion.

This time there is no need to rely upon rumor, inference or disputed local history.

Giraldi pleaded guilty in federal court.

According to the U.S. Department of Justice and his admissions, Giraldi accepted things of value—including sexual acts from multiple women—in exchange for favorable official actions benefiting criminal defendants.

Those actions included reductions in bond, dismissal of traffic violations and other favorable treatment in criminal cases.

In October 2023, a federal judge sentenced Giraldi to 30 months in prison. Under his plea agreement, he also relinquished his Oklahoma law license and agreed never again to hold public office or a position of public trust in Oklahoma.

Again, consider what had market value.

A reduced bond had value.

A dismissal had value.

Favorable treatment had value.

The decision to exercise prosecutorial authority one way instead of another had value.

And a public official converted that discretion into private benefit.

The Mr. Yuk case and the Giraldi prosecution are separated by roughly half a century.

They do not establish one continuous conspiracy.

They do not prove that today's officials are corrupt.

They do not justify accusing every prosecutor—or even most prosecutors—of misconduct.

They prove something both narrower and more important:

The danger is real because the power is real.

The Problem Is Not That Prosecutors Have Judgment

There is no serious criminal-justice system in which every allegation automatically produces a prosecution.

Police reports can be wrong.

Witnesses can lie.

Evidence can be inadequate.

People can make malicious accusations.

Some technically prosecutable cases should not be prosecuted.

Discretion therefore serves an essential purpose.

The structural problem arises when discretion becomes effectively unreviewable.

Suppose a citizen presents evidence of a serious crime and the prosecuting authority refuses to proceed.

What happens next?

Under Oklahoma's present statutory structure, district attorneys occupy the central prosecutorial role. Title 19 requires district attorneys and their assistants to prosecute criminal actions within their districts.

Oklahoma also does not presently recognize an ordinary system in which a citizen simply hires a lawyer to become a private criminal prosecutor. In Driskell v. Goerke, the Oklahoma Court of Criminal Appeals held that Oklahoma's statutory scheme did not permit courts simply to appoint private “special prosecutors” outside the statutory prosecutorial framework.

That protects defendants from one danger: criminal prosecution becoming a weapon purchased by wealthy or vindictive private parties.

But it creates the opposite question:

Who protects the public when the person controlling prosecution is the problem—or simply refuses to act?

Oklahoma's founders anticipated that problem.

Oklahoma's Constitution Already Recognizes the Principle

Oklahoma preserved a citizen grand-jury mechanism in its Constitution.

Article II, Section 18 provides that qualified electors may petition for a county grand jury. The number of signatures varies under the constitutional formula, with a minimum requirement of 500 and a maximum of 5,000. When the constitutional requirements are satisfied, the provision says the district judge shall order the grand jury.

The Oklahoma Supreme Court addressed that safeguard directly in State ex rel. Ogden v. Hunt.

The Court held that the constitutional command is mandatory: once the required petition exists, officials cannot substitute their own conclusion that ordinary prosecutorial mechanisms are sufficient.

And decades earlier, the Oklahoma Court of Criminal Appeals explained why the grand-jury mechanism mattered.

In Blake v. State, the Court observed that it was wise for Oklahoma to preserve a means of calling a grand jury “where prosecuting officers will not act.”

Those words were written in 1932.

The principle remains remarkably modern.

Government should never be the exclusive judge of whether government's own failure to enforce the law deserves examination.

But 500 Signatures Should Not Be the Only Escape Hatch

A citizen grand jury is an extraordinarily important constitutional safeguard.

It is also a cumbersome remedy for an individual crime victim.

A person who possesses evidence of bribery, violence, fraud, coercion, public corruption or another serious offense should not necessarily have to organize hundreds or thousands of voters simply to obtain independent review of a prosecutorial refusal.

That is where Oklahoma should reform its law.

Not by abolishing judgment.

Not by allowing vigilante prosecutions.

Not by permitting someone with money to hire a criminal prosecutor to punish an enemy.

Instead, Oklahoma should create a right to independent criminal review.

A Citizen Right to Independent Review

The Legislature could create a carefully limited procedure.

When a district attorney declines a sufficiently serious criminal complaint, the complainant should be permitted to submit a verified petition for independent review.

The petition would identify the alleged offense, supporting evidence, law-enforcement reports and any written prosecutorial declination.

A neutral judicial officer could first determine whether the petition is frivolous, retaliatory or legally insufficient.

If it survives that threshold, the matter could be referred outside the local prosecutorial chain.

That could mean the Attorney General, another district attorney, a specially authorized independent prosecutor or another institution created by statute.

If independent review establishes probable cause and sufficient evidence for prosecution, Oklahoma law should provide a mechanism allowing the case to proceed even when the original prosecutorial office refuses.

The accused would retain every constitutional protection that exists today.

The citizen would not become judge or jury.

The complainant would not control the prosecution.

Money would not buy criminal process.

The reform would simply ensure that one official's refusal is not always the end of the law.

Require Written Reasons

Reform should also include transparency.

When prosecution of a serious reported offense is declined after a completed investigation, Oklahoma should consider requiring a written explanation sufficient to identify the basis for the decision.

That does not mean prosecutors must expose confidential witnesses, investigative strategy or information protected by law.

But “declined” should not always be the beginning and end of accountability.

A system capable of taking a citizen's liberty should also be capable of documenting why it decided not to invoke that power.

Written reasoning creates a record.

A record permits review.

Review creates accountability.

And accountability protects honest prosecutors as much as it protects citizens.

Protect the Accused Too

Any reform carrying the name “private prosecution” must confront an obvious danger.

Criminal law cannot become private vengeance.

A wealthy corporation should not be able to buy a felony prosecution against a critic.

An abusive former partner should not be able to turn the criminal courts into another instrument of coercion.

A political faction should not be able to prosecute its opponents merely because the elected district attorney concluded that no prosecutable crime occurred.

That is why the better concept is not unrestricted private prosecution.

It is a private right to invoke independent public prosecution.

The citizen supplies the complaint.

Independent institutions evaluate it.

A neutral probable-cause standard applies.

The prosecution, if authorized, remains subject to public law, constitutional protections, judicial supervision, discovery obligations, ethical rules and the burden of proof beyond a reasonable doubt.

That creates accountability on both sides.

This Is Not an Accusation Against Today's Prosecutors

History must be used carefully.

The Mr. Yuk convictions do not prove misconduct by present District 13 officials.

The Giraldi conviction does not prove wrongdoing by everyone who worked beside him.

And the existence of prosecutorial discretion does not establish corruption every time a prosecutor declines a case.

That is precisely why structural reform is preferable to accusation.

Good government should not depend entirely upon whether particular officeholders are good people.

Checks and balances exist because concentrated power creates risk even when most people entrusted with it act honorably.

We require judges to explain decisions.

We permit appeals.

We review police searches.

We audit public spending.

We impose conflict-of-interest rules.

We allow elections to remove public officials.

Yet one of government's most consequential powers—the decision whether the machinery of criminal prosecution will move at all—can remain extraordinarily difficult for an ordinary citizen to challenge.

Northeastern Oklahoma's own history demonstrates why that deserves examination.

The Lesson of Mr. Yuk and Giraldi

In the 1970s, federal prosecutors proved a conspiracy involving a local district attorney, gambling, prostitution, bribery and protection from enforcement around Grove.

Five decades later, a prosecutor in Ottawa County admitted accepting private benefits in exchange for favorable exercises of prosecutorial authority.

These cases are different.

The people are different.

The eras are different.

But they demonstrate the same structural truth.

Government's power to prosecute has value.

So does government's power not to prosecute.

Where discretion is exercised honestly, it is essential to justice.

Where discretion is exchanged for private benefit, it becomes corruption.

And where discretion is mistaken, conflicted, arbitrary or abused, citizens need somewhere else to go.

Oklahoma already recognized that principle when it preserved the citizen grand jury.

Nearly a century ago, its highest criminal court explained the purpose plainly: there must be a mechanism for circumstances in which prosecuting officers will not act.

The question now is whether Oklahoma is prepared to carry that principle into the twenty-first century.

A Call to the Oklahoma Legislature

Oklahoma should begin a serious bipartisan examination of prosecutorial accountability and consider legislation establishing:

A right to a written prosecutorial declination in qualifying serious cases.

A right to independent review outside the local prosecutorial office.

A judicial probable-cause screening procedure.

A lawful mechanism for appointment of an independent public prosecutor when the local prosecutor is disqualified, conflicted or refuses a case that independently satisfies statutory standards.

Strong penalties for knowingly false or malicious citizen complaints.

Complete constitutional and procedural protections for the accused.

Public statistical reporting showing how criminal referrals are accepted and declined across Oklahoma.

And Oklahoma should preserve and strengthen its constitutional citizen-grand-jury process as the ultimate public safeguard.

This is not about empowering mobs.

It is about preventing monopoly.

It is not about eliminating prosecutorial judgment.

It is about ending unreviewable prosecutorial power.

The history is already written.

Mr. Yuk showed Oklahoma what happens when protection from law enforcement itself becomes valuable.

Daniel Giraldi showed Ottawa County that favorable prosecutorial treatment can still be converted into private benefit decades later.

The lesson should not be that every prosecutor is corrupt.

The lesson should be that no institution should be designed on the assumption that corruption, conflicts and abuse will never occur.

The rule of law requires more than honest officials.

It requires a system capable of surviving dishonest ones.

Give Oklahomans a right to independent criminal review.

Preserve citizen grand-jury power.

End unreviewable prosecutorial discretion.

And ensure that when one public official says the law will go no further, the people of Oklahoma still have a lawful place to turn.