The highest measure of prosecutorial judgment is knowing when not to proceed.
It is remarkable how a single sentence buried deep within an otherwise routine legal filing can resurrect lessons long thought settled. Sometimes a legal submission does more than advance an argument. Occasionally, almost unexpectedly, it reminds us that the strength of legal institutions depends not only on the rules that govern them but also on the judgment of those entrusted with applying them.
The Prosecution’s submission in Banda did exactly that. Before I finished reading it, I found myself transported more than forty years into the past.
Freshly admitted to the Alaska Bar, I was eager to learn the craft of trial advocacy. Whenever my own work allowed, I sat quietly in state and federal courtrooms, watching the great lawyers, the merely competent, and the spectacularly unprepared. Courtroom advocacy fascinated me not only for the legal arguments but also because every trial revealed a succession of judgment calls no textbook could fully explain. I eventually came to understand what I have repeated ever since when teaching trial advocacy: courtroom advocacy is, above all else, the disciplined exercise of judgment. Every objection. Every witness. Every exhibit. Every concession. Every strategic choice. Each ultimately reflects an exercise of judgment. Techniques matter. Rules matter. But judgment determines how, when, and whether they should be employed.
Whenever I could, I would approach prosecutors and defense lawyers after hearings and ask what were probably naïve questions: Why did you do that? Why didn’t you object? Why call that witness first? Some politely brushed me aside. Some answered cautiously. A very few were extraordinarily generous with their time. Those conversations also taught me something else. Experienced trial lawyers rarely explained what they had done by reference to the rules of evidence or criminal procedure alone. They explained the judgment behind their decisions. Only much later did I realize that this had become the foundation of my own approach to teaching advocacy: before you can know when to act, you must first understand why.
It must have been 1984 when I wandered into federal court to observe what promised to be a significant criminal trial. At the time, I expected to learn something about advocacy. I left having learned something far more important about judgment.
The defense counsel enjoyed a formidable reputation as an orator and cross-examiner – gifted before a jury, though known to rely more on instinct than on preparation. The prosecutor was his opposite. No theatrics. No emotional appeals. No courtroom flourishes. His style was disciplined, methodical, almost understated. He believed trials were won through meticulous preparation rather than dramatic performance. Nothing appeared accidental. Every question seemed deliberate. Every exhibit had a purpose. Every witness fit into a larger structure that had plainly been designed long before anyone entered the courtroom. Watching him, one had the distinct impression that the trial was merely the final expression of decisions made months earlier during careful preparation.
His presentation reflected that philosophy. Rather than calling each witness once to tell the entire story, he frequently recalled witnesses as different counts were presented, building each element separately and methodically. It demanded more of witnesses, but he believed it helped jurors understand precisely how each element of every charge had been proven beyond a reasonable doubt.
Looking back, I now suspect the same discipline explains what happened next. The best trial lawyers understand that preparation is not about confirming one’s theory of the case. It is about continually testing that theory against the evidence. When the evidence changes, so must the judgment. Years later, as a federal defender, I tried several cases against him. He obtained convictions in every case we tried against each other, not because he overwhelmed juries with rhetoric, but because he never went to trial unless he believed the evidence genuinely warranted a conviction.
Then, on that day in federal court, something happened that completely upended everything I thought I understood about successful prosecutors. Before the jury was sworn, he rose and moved to dismiss the indictment. After the hearing, disappointed yet curious, I asked why. His answer was immediate. He did not hesitate, qualify, or justify the decision as a matter of strategy. His answer has stayed with me ever since.
Speaking with the quiet confidence that comes only from experience, he explained that after reviewing the then-existing evidence one final time, he no longer believed he could honestly say it would support a conviction. Could a jury still convict? Perhaps. But that was not the point. He told me he could not, in good conscience, put another human being through the “meat-grinder of a criminal trial” unless he was satisfied that the evidence justified asking a jury to convict beyond a reasonable doubt. Anything less, he said, would be unfair to the accused. It would waste public resources. It would waste the court’s time. And it would diminish the integrity of the United States Attorney’s Office. The prosecutor’s role, as he understood it, was not to gamble with another person’s liberty. His responsibility was to ensure that the Government’s extraordinary power was exercised only as long as the evidence continued to justify its use.
What impressed me most was not the decision itself but the certainty with which he made it. There was no hint of embarrassment, no concern for appearances, and no suggestion that withdrawing the indictment was a failure. To him, it was simply the next ethical decision required by the evidence.
At the time, I admired the decision because it struck me as professionally courageous. Years later, after defending in countless criminal cases, I came to understand why it deserved even greater admiration. The courage did not lie in dismissing the indictment. It lay in refusing to let institutional momentum, professional pride, or the mere existence of formal charges replace independent judgment. He understood that prosecutorial discretion is not exhausted when charges are filed and an indictment is secured. It must be exercised continuously until the judgment is rendered or the case is withdrawn.
About eight years later, I encountered the opposite while defending in a murder case in state court. It was a retrial after the first jury had failed to reach a unanimous verdict. I had not represented the defendant during the first trial. The evidence, however, remained essentially unchanged. Only the theory of the case, trial strategy, preparation, and presentation differed. Any experienced trial lawyer knows that retrials rarely produce dramatic surprises. Whatever folklore may suggest about one side suddenly “pulling a rabbit out of the hat,” the strengths and weaknesses of the evidence are ordinarily well understood by both sides long before the second jury is sworn. The prosecutor in this case certainly understood them. He was an exceptionally experienced and capable trial lawyer – persistent, disciplined, and relentless. But he approached prosecutorial discretion very differently. Where others regarded it as a continuing obligation to ensure that the evidence still justified putting another human being on trial, he appeared to regard it as largely exhausted once the decision to prosecute had been made. From that point forward, whether the evidence truly warranted conviction became, in his view, a question for the jury rather than for the prosecutor’s own conscience.
My client was barely twenty-one years old. Hailing from the East Coast, he was far from home. For weeks during the trial, he sat alone. No family. No familiar faces. No one to reassure him during recesses or to offer quiet encouragement at the end of another exhausting day. After weeks of testimony, the jury deliberated for nearly five days before returning a verdict of not guilty.
As I packed my briefcase, relieved that justice had prevailed, the prosecutor approached. With a somewhat perverse smirk, he said the jury had reached the correct verdict. His comment stunned me. Drawing almost instinctively on the lesson I had learned years earlier in federal court, I asked him: “Then why did you put him through the meat-grinder? This was not a surprise acquittal. You already knew the evidence. You knew its weaknesses. If you believed the jury reached the correct result, why retry the case at all? What if the jury had convicted?”
His response remains one of the most disturbing statements I have ever heard from a prosecutor. He gave a slight shrug, as though the outcome scarcely mattered, and, with complete composure, replied, “Well, then a jury of his peers would have found the evidence convincing.” There was no hesitation, no regret, and no acknowledgment that, had the jury convicted, he would have been content to let twelve jurors assume responsibility for a conviction he apparently did not believe the evidence justified.
For perhaps the only time in my professional life, I found myself momentarily speechless. Anger rose faster than judgment, and I came closer than I care to admit to losing my composure. His remark revealed a conception of prosecutorial responsibility so fundamentally at odds with everything I had been taught that, for a fleeting moment, I was tempted to respond not as an advocate but simply as one human being confronting another. Fortunately, professionalism prevailed.
The lesson was unforgettable. The contrast could not have been sharper. One prosecutor understood that prosecutorial discretion is not exhausted once an indictment is secured. It continues until the judgment is rendered. The other viewed discretion as largely spent once the indictment was returned, leaving the ultimate decision to the jury regardless of his professional assessment of the evidence.
The proceedings in Banda brought those two conversations back into sharp focus. More than forty years had passed, yet the same fundamental question remained: What is the Prosecutor’s continuing responsibility once criminal proceedings begin?
That question is easily answered if one views the prosecutor simply as an advocate whose task is to secure convictions. Once the defendant is indicted, the trial runs its course, and the evidence is for the judge or jury to evaluate.
It becomes more difficult when one understands the prosecutor as an independent constitutional actor whose first obligation is to the fair administration of justice. Under that conception, the prosecutor’s responsibility does not end when charges are confirmed. It continues for as long as the State (or, in the case of the International Criminal Court (ICC), the Office of the Prosecutor (OTP)) asks a court to exercise its coercive authority over another human being.
That is the question the dismissal of charges against Abdallah Banda Abakaer Nourain squarely poses. Properly understood, it is not merely about withdrawing charges. It is about the ongoing exercise of prosecutorial judgment.
The significance of Banda cannot be understood without first recognizing a distinction at the heart of every fair criminal justice system, and, in particular, at the heart of the Rome Statute. Confirmation of charges and conviction are not merely successive stages of the same process. They address different legal questions, apply different standards, and serve different institutional purposes. Appreciating that distinction is essential to understanding both the Prosecution’s request to withdraw the charges (here) and the Trial Chamber’s decisions (here, here, and here).
Confirmation is neither a finding of guilt nor a prediction that the accused will ultimately be convicted. It is a screening mechanism. The Pre-Trial Chamber determines only whether sufficient evidence exists to require the accused to stand trial. It does not decide whether the evidence will ultimately satisfy the far more demanding standard of proof beyond a reasonable doubt.
Trial serves a fundamentally different function. There, the Prosecutor bears the burden of proving every element of each charge beyond a reasonable doubt – the highest standard in criminal law. That demanding burden reflects the profound consequences of a criminal conviction. It also explains why confirmation can never replace continual reassessment. Evidence sufficient to justify a trial may ultimately prove insufficient to justify a conviction.
This recurring reassessment is not merely prudent. It is a legal obligation. Article 54(1)(a) of the Rome Statute requires the Prosecutor to “establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.” The Prosecutor’s task does not end once charges are confirmed. The search for the truth continues throughout the proceedings, and with it the ongoing obligation to evaluate whether the evidence still justifies asking the Trial Chamber to convict.
That obligation reflects an obvious reality familiar to every experienced trial lawyer. Evidence is never static. Witnesses become unavailable. Memories fade. Documents are discovered. Scientific techniques evolve. New evidence strengthens some allegations while undermining others. The evidentiary landscape at the start of trial may differ substantially from the one at confirmation. The Prosecutor’s responsibility is to respond to that changing reality, not to ignore it.
The Prosecutor is therefore not simply an advocate seeking convictions. The OTP holds a constitutional position within the Rome Statute framework. It exercises extraordinary public authority and, with that authority, assumes an ongoing obligation to ensure that prosecutions remain legally and ethically justified. The Prosecutor’s responsibility is not to defend earlier charging decisions at all costs. It is to continually and objectively determine whether the evidence still warrants asking an ICC trial chamber to convict another human being.
That persistent obligation necessarily entails a corresponding measure of professional judgment. Article 54 does not prescribe a mechanical checklist for prosecutors to determine whether a case should continue. It entrusts that assessment to the Prosecutor’s independent professional judgment, exercised in good faith and on the basis of the evidence then available. The obligation is objective; its application inevitably requires judgment.
It is precisely that distinction that became central in Banda. Once the Prosecutor concluded that the available evidence no longer justified seeking a conviction beyond a reasonable doubt, a second question emerged: how much of the reasoning behind that conclusion had to be disclosed to the Trial Chamber?
The Prosecutor’s request did not end the matter. Over the course of two decisions spanning more than two years, the Trial Chamber repeatedly required the OTP to explain why evidence that had once justified confirming the charges no longer warranted proceeding to trial. Given the age of the proceedings, the resources already invested, the interests of victims, and the public importance of the case, that insistence on careful judicial scrutiny was understandable.
The Trial Chamber’s concern, however, went beyond a desire for further explanation. It also reflected a different understanding of the relationship between confirmation and trial. The Majority observed that, within the Rome Statute’s statutory framework, there could be “no ethical concerns about the Prosecution proceeding to trial on the basis of evidence which has been confirmed by the judiciary as meeting these requirements of the Rome Statute” (Decision, 6 March 2024, para. 13). In the Trial Chamber’s view, the relevant inquiry was whether the subsequent evidentiary changes had materially undermined the foundation on which the confirmation had rested. The Prosecution certainly thought so.
That reasoning warrants careful attention. The Trial Chamber repeatedly acknowledged that it was neither determining guilt nor assessing witness credibility. At the same time, however, it necessarily evaluated the significance of the evidentiary changes on which the Prosecution relied. It observed that certain witnesses had not played a decisive role in the Confirmation Decision, that other evidence remained available, and that the Trial Chamber had authority under Articles 64(6)(b) and 69(3) to require the production of evidence or to call witnesses. It ultimately concluded that the Prosecution had not demonstrated deterioration sufficient to justify withdrawal (Decision, 6 March 2024, paras. 32–37).
None of this necessarily reflects judicial overreach. The Trial Chamber was plainly attempting to fulfill its constitutional responsibilities. Yet the exchange exposed a subtle institutional tension embedded in the Rome Statute. Confirmation answers one question: whether sufficient evidence exists to require the accused to stand trial. Article 54 requires the Prosecutor to continually answer another: whether the evidence, as it stands today, still justifies asking an ICC trial chamber to convict beyond a reasonable doubt. Those inquiries necessarily overlap, but they are not identical. One is judicial; the other is prosecutorial.
That institutional tension has another dimension that is easily overlooked. The Prosecutor’s continuing duty under Article 54 necessarily depends on candid internal assessment of the evidence, witness reliability, investigative prospects, and the cumulative strength of the case. Not every aspect of that assessment is capable of – or even appropriate for – judicial examination. The OTP must explain its decision sufficiently to permit meaningful judicial review, but it does not follow that every credibility assessment, investigative avenue, or deliberative evaluation must be disclosed simply because the Prosecutor has concluded that the evidentiary threshold for conviction can no longer be responsibly met.
The distinction is important. Effective judicial oversight requires transparency sufficient to demonstrate that the Prosecutor has acted lawfully, rationally, and in good faith. It does not require the OTP to disclose confidential investigative information, privileged work product, or internal deliberative processes that could prejudice other investigations or impair the independent exercise of prosecutorial judgment. The Rome Statute contemplates both judicial oversight and prosecutorial independence. Preserving the proper balance between those two constitutional functions necessarily requires recognizing the limits of each.
The distinction became even more pronounced in the Trial Chamber’s subsequent decision. Rejecting the renewed request for reconsideration, the Majority questioned how requiring Banda to appear before the ICC could itself constitute an injustice, noting that the charges had been confirmed years earlier and that he had remained a fugitive from justice (Decision, 26 June 2026, paras. 24–25). From the Trial Chamber’s perspective, compelling the accused to stand trial merely allowed the judicial process to fulfill the function assigned to it by the Rome Statute.
From the Prosecutor’s perspective, however, the question necessarily appeared different. If, after years of ongoing investigation and reassessment, the OTP no longer believed it could responsibly seek a conviction, compelling an accused to face arrest, transfer to The Hague, prolonged proceedings, and potentially lengthy detention while prosecuting a case the OTP no longer believed it could prove would be difficult to reconcile with the continuing obligations imposed by Article 54. That concern is not theoretical. It is precisely the kind of prolonged and ultimately unsuccessful prosecution that Article 54 seeks to prevent.
From the defense perspective, however, the exchange has another, more unsettling dimension. Speaking as someone who spent years defending criminal cases, I could not help but recall the lesson taught by two prosecutors who shaped my understanding of prosecutorial judgment decades earlier. Once a prosecutor, acting independently and in good faith, has concluded that the evidence no longer justifies asking a court to convict, the criminal process should not become an exercise in seeing what a trial might yet produce.
It is not that the Trial Chamber intended to prejudge the outcome. Rather, insisting that the proceedings continue risks creating the perception that confirmation has acquired a gravitational pull of its own – one difficult to resist despite the Prosecutor’s contrary assessment. A cynic might go further. With the ICC having had relatively few trials in recent years, one might wonder whether there is also an institutional attraction to having a significant case proceed: a visible proceeding, a courtroom occupied, an institution seen to be doing what it was created to do. That may be an unfair inference, and I do not suggest that it explains the Trial Chamber’s position. But it is precisely the kind of inference that institutional actors should recognize when their decisions create the appearance that proceedings must continue simply because they have already begun.
Whether such perceptions are justified is almost beside the point. They leave an uncomfortable impression that the trial risks becoming less an inquiry into whether the evidence still warrants conviction and more an effort to preserve the momentum of proceedings already set in motion. Criminal justice depends as much on public confidence in the independence of institutional judgment as on the judgment itself. Criminal courts, no less than prosecutors, must therefore remain vigilant that institutional momentum never supplants independent judgment.
Ultimately, the constitutional dialogue resolved predictably. Although the Trial Chamber continued to disagree with the Prosecution’s assessment of the evidence, it recognized that the Rome Statute establishes what it described as “a hybrid legal system” that depends on the OTP fulfilling the responsibilities entrusted to it. It concluded that proceeding to trial when the Prosecutor, in good faith, refused to present the case would fundamentally distort that statutory design and risk unfairness to the accused. Accordingly, despite its continuing disagreement with the OTP’s evidentiary assessment, the Trial Chamber authorized the withdrawal of the charges (Decision, 26 June 2026, paras. 27–29), thereby terminating the proceedings.
Read together, the two decisions reveal far more than a disagreement over evidentiary sufficiency. They illuminate an institutional dialogue between two independent constitutional actors, each faithfully fulfilling a distinct responsibility assigned by the Rome Statute. That dialogue also explains why Banda occupies a different place than Mokom in the broader discussion of prosecutorial judgment.
My earlier reflections on the withdrawal of charges against Maxime Jeoffroy Eli Mokom approached the issue from a different perspective. The decision to withdraw did not trouble me. Once the OTP concluded it could no longer responsibly seek a conviction, discontinuing the proceedings was entirely consistent with its obligations under the Rome Statute. My concern lay elsewhere.
By the time the charges were withdrawn, the OTP had investigated the case for more than nine years. An arrest warrant had been outstanding for years. Mokom had spent about nineteen months in detention. Confirmation proceedings had already begun. Substantial public resources had been invested. Victims had understandably been encouraged to expect a trial, and the ICC had devoted significant judicial resources to the case.
Those circumstances prompted a different question: how had the proceedings progressed so far before the OTP concluded that the evidence no longer justified proceeding to trial to seek a conviction?
That question was never intended as criticism of the decision to withdraw the charges. Quite the opposite. I regarded that decision as professionally commendable. My concern was institutional rather than individual. Once proceedings collapse at such an advanced stage, responsible institutions owe it to themselves – and to the public – an honest examination of how that happened. Weak investigations, flawed evidentiary assessments, inadequate supervision, excessive delay, changing witness availability, or failures in continuing review warrant careful scrutiny. In those circumstances, transparency strengthens rather than weakens public confidence.
Banda presents a different problem altogether.
Here, the question is not why the prosecution eventually discontinued the proceedings. The question is whether, having concluded that it could no longer responsibly seek conviction, the Prosecutor nevertheless remained under an obligation to continue litigating a case that Article 54 no longer justified.
In particular, one statement in the OTP’s submission exquisitely captures the essence of prosecutorial responsibility:
[T]he Prosecution has an independent duty to be satisfied at all times that its cases are sufficiently supported by the evidence to warrant the continuation of the proceedings, recognising the deleterious impact that prolonged criminal proceedings will have on the accused and that unsuccessful prosecutions will have on the victims. (para.7)
Read carefully. That statement accomplishes something subtle. It does not ask the Trial Chamber to trust the OTP blindly, nor does it seek to relitigate the evidentiary record. Rather, it identifies the governing legal principle: Article 54 requires the Prosecutor to continually assess whether the evidence still justifies asking the ICC to convict. Having concluded that it no longer did, the Prosecutor’s duty was no longer to continue the prosecution but to discontinue it.
That statement may be one of the most significant acknowledgments of prosecutorial responsibility filed with the ICC in recent years. Notice what it does not say. It does not say the accused is innocent. It does not say that crimes did not occur. It does not deny victims’ suffering. Nor does it suggest that the investigation itself lacked value. Nor does it suggest that the original charging decision was necessarily mistaken. Instead, it recognizes something more fundamental: criminal prosecutions are not vehicles for testing uncertain theories, speculation, or institutional optimism, hoping additional evidence might emerge during trial. They are exercises of public authority that require ongoing justification.
The power to prosecute carries the equal responsibility to stop, even after years of investigation, substantial institutional investment, and considerable public expectation, when the evidence no longer permits confidence that the applicable standard of proof can ultimately be met. This brings the discussion back to the broader theme explored in my recent two-part series (here and here) on the election of the Prosecutor. At first glance, the subjects appear unrelated. One concerns the selection of officeholders, and the other concerns the discontinuance of criminal proceedings. In reality, both address the same constitutional question: what does sound judgment look like when public authority is exercised?
Those posts argued that institutions should not appoint individuals merely because they possess impressive credentials or inspire confidence. The exercise of constitutional authority begins long before the officeholder makes the first official decision. It begins with the institution’s judgment about whom to entrust with that authority. Nowhere is that more important than in selecting the Prosecutor of the ICC. Such trust should be placed only after disciplined inquiry establishes reasonable confidence that the individual has consistently demonstrated the judgment, integrity, independence, temperament, and moral courage that the OTP demands.
The Banda decision illustrates the necessary continuation of that inquiry. Selecting the right officeholder is only the beginning. The real test comes after authority has been entrusted. Constitutional offices are not defined principally by the powers they confer. They are defined by the judgment required in deciding when, and how, those powers should be exercised. Among the highest expressions of prosecutorial judgment is not the courage to commence proceedings. It is the discipline to discontinue them when justice no longer permits their continuation.
Such decisions rarely draw public applause. They are often misunderstood as signs of weakness, institutional failure, or retreat. Yet they may instead reflect the same qualities that justified entrusting constitutional authority to that individual in the first place: judgment, independence, restraint, and the willingness to subordinate institutional pride, political expectations, and personal reputation to the evidence. We often mistake persistence for strength. Sometimes the rule of law demands something much harder: the judgment to stop.
In that sense, the decision to discontinue proceedings may reveal more about the Prosecutor’s fitness for heading the OTP than the decision to commence them. Every Prosecutor understands that bringing charges invites criticism. Far fewer appreciate that withdrawing them after years of investigation and litigation often requires even greater professional courage. It requires acknowledging that fidelity to the law is measured not by consistency of position but by consistency of principle.
The easier course is often to continue. The institution has already invested enormous resources. Victims understandably hope the proceedings will culminate in convictions. Years of investigation create a natural expectation that sufficient evidence must exist, while almost every institutional incentive favors pressing forward. Yet none of those considerations answers the only question that ultimately matters: Can the charges still be proved beyond a reasonable doubt?
If the Prosecutor, acting conscientiously and independently, can no longer answer that question in the affirmative with professional confidence, the obligation changes. At that moment, the Prosecutor ceases to act simply as an advocate and resumes, in its fullest sense, the role of Minister of Justice. The responsibility is no longer to obtain a conviction but to prevent an unjust prosecution. That is not an exception to prosecutorial responsibility. It is its highest expression.
Banda therefore illustrates something larger than the withdrawal of charges. It illustrates constitutional judgment in action. The decision reminds us that public authority is measured not only by the willingness to exercise power but equally by the discipline to refrain from exercising it when the evidence no longer justifies its use.
The broader lesson extends beyond this single case. Institutions ultimately reveal their character not only by whom they appoint but by how those entrusted with public power exercise it. Appointment may identify individuals worthy of trust. Judgment determines whether that trust has been honored.
As I finished reading the Banda filings, my thoughts returned once again to that federal prosecutor. He was teaching me something far more important than trial strategy. He was teaching constitutional judgment before I had the language for it. At the time, I thought he was teaching me when a prosecutor should dismiss a case. What he was really explaining was the ethical boundary that separates the legitimate exercise of public power from its misuse.
Different court. Different continent. Different legal system. More than forty years apart. Yet the same principle endures. The ethical exercise of prosecutorial power does not end when charges are filed. It continues for as long as the prosecutor asks the court to exercise its coercive authority over another human being. That may be the hardest prosecutorial decision of all. It is also the decision that most clearly reveals why constitutional judgment remains the first virtue of public office.
For judgment is measured not by the willingness to exercise power, but by the wisdom to know when it should no longer be exercised.
POSTSCRIPT
As I was putting the finishing touches on this post, an almost perfect real-world illustration of its central argument arrived from Washington, D.C.
On 2 July, D.C. U.S. Attorney Jeanine Pirro announced the indictment of former Olympic canoeist David Hearn for allegedly vandalizing the Lincoln Memorial Reflecting Pool. At the time, during a choreographed news conference with the Secretary of the Interior in the background, she described the case as supported by “tremendous evidence” and that she would forward the case to the grand jury to seek a felony indictment.
Twenty-nine days later, Pirro moved to dismiss the case.
The reason was not a technical defect in the indictment. It was evidence. Information obtained after the indictment showed that the damage to the pool was attributable to a rushed, flawed installation by the contractor, not to vandalism by Hearn. The Justice Department’s (government’s) subsequent investigation had undermined the factual premise on which the prosecution was built. That is difficult to overlook: Pirro had no shortage of investigative resources. Her office had access not only to local law enforcement but also to the substantial investigative resources of the federal government, including the FBI. Yet the prosecution proceeded on information supplied by the Department of the Interior without those readily available resources being brought to bear before seeking an indictment.
The circumstances surrounding that premise are difficult to ignore. The Reflecting Pool renovation was awarded on a no-bid basis for what was widely reported to be an extraordinarily high fee. The contractor apparently had limited relevant experience with a project of this magnitude. What he did have was a prior business connection to President Trump, having performed work on one of President Trump’s golf properties, as well as a reported personal connection as a Florida neighbor. The project itself was rushed to completion for the 4 July independence celebrations and was plagued by problems. Among them was the defective installation that ultimately became central to the criminal case.
In other words, Pirro appears to have had a straightforward explanation for why the pool was coming apart: poor workmanship. Instead, she set the criminal process in motion against a 67-year-old former Olympian. And it was set in motion with remarkable confidence. Before the factual premise had been adequately tested, Pirro publicly announced that the evidence was sufficient to prove Hearn guilty beyond a reasonable doubt. A grand jury then returned the indictment. The machinery of prosecution was underway.
Less than a month later, the evidence caught up with the story.
The motion to dismiss is worth reading. Much of it is an exercise in bureaucratic blame-shifting, explaining how the Department of the Interior failed to provide information that, had it been provided earlier, would have undermined the government’s case. That may explain how the prosecution came about. It does not explain why the basic factual premise was not adequately investigated before an individual was arrested, indicted, publicly accused of a felony, and placed on the criminal justice conveyor belt.
There is, however, another layer to the story.
The Reflecting Pool renovation was a signature project of President Trump, one he personally promoted and repeatedly defended. When the pool failed, he needed an explanation, a scapegoat. He repeatedly insisted that vandals – not defective workmanship – were responsible. The vandalism narrative was politically convenient because it placed responsibility elsewhere.
Pirro was hardly an accidental choice to oversee the prosecution. She had been a prominent Fox News personality and a consistent defender of President Trump and his political allies. He selected her to serve as U.S. Attorney. Yet even his hand-picked prosecutor, after the evidence was further examined, concluded that the vandalism case could no longer stand – nor should Hearn stand for trial on bogus felony charges
President Trump was furious.
After Pirro moved to dismiss the indictment, he publicly rejected her conclusion, saying he disagreed with her “100%” and continued to insist that the damage was vandalism.
There is something almost perfect about the sequence.
President Trump wanted the vandalism theory. His chosen U.S. Attorney announced a felony indictment. A grand jury returned it. The machinery of criminal prosecution began to move. And then the evidence caught up with the story. That is precisely where prosecutorial independence matters.
A prosecutor who allows political expectations, institutional pride, or the momentum of an announced prosecution to substitute for independent judgment can put a human being through the very “meat-grinder of a criminal trial” that the federal prosecutor I described earlier taught me should never be entered without a genuine belief that the evidence warrants it.
Hearn is not an abstraction. He is a 67-year-old former Olympian who was arrested, charged with a felony, and publicly accused of deliberately vandalizing a national monument. Had the case continued, he would have been required to defend himself against a prosecution that the government ultimately concluded should not have been brought. Had he been convicted, he would have faced up to 10 years in prison.
President Trump’s reaction makes the point even starker. Whatever one’s politics, the President is not a prosecutor and should not direct prosecutions. Political conviction is not evidence, no matter how forcefully or repeatedly asserted. Once the government’s investigation – which should have occurred before seeking an indictment – established that the damage resulted from defective installation rather than vandalism, the prosecutor’s obligation was clear: follow the evidence, not the President’s preferred narrative. This is precisely why prosecutorial independence exists.
To Pirro’s credit (and if I could find a more tepid word, I would use it), she did just that, albeit belatedly. She dismissed the charges despite the President’s public and scathing disagreement with her.
That deserves some credit. It also raises the more troubling question: why was the case brought in the first place?
Dismissal does not erase the consequences of an arrest, an indictment, a public accusation, and the prospect of a criminal trial, along with fingerprints and photo forever in a government crime information database. Nor does it undo the fact that the government appears to have charged first and adequately investigated later.
And that is where the Reflecting Pool case returns us to Banda and Mokom.
The cases are obviously not the same. They arose in different legal systems and under very different circumstances. But the governing principle is remarkably familiar: the fact that a prosecution has begun does not make continuing it right.
An indictment is not evidence of guilt. Political expectations are not evidence. Institutional investment is not evidence. And the fact that a prosecutor has publicly committed to a theory of the case does not make that theory true.
The harder professional obligation is to recognize when the evidence has changed – or when the institution has finally learned what it should have known before charging – and to have the independence to stop.
That is the point of the “meat-grinder” effect.
The criminal process is not a laboratory in which prosecutors (or Judges, as the majority of the Banda Trial Chamber seemed to suggest) are entitled to see what a trial might produce. It is an exercise of public power over another human being. Once that power is set in motion, the gravitational pull to keep going can be enormous. The Reflecting Pool case is a useful reminder that sometimes the most important act of prosecutorial judgment is the decision to resist that pull.
Ultimately, prosecutorial judgment and independence are most clearly demonstrated when the easiest course is to proceed, institutional pressure is to proceed, and the prosecutor nevertheless knows that the right course is to stop.
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