In an op-ed for the Salt Lake Tribune, Brett L. Tolman, a former United States Attorney for the District of Utah, and Eric G. Benson, a former assistant United States Attorney, argue that the Office of the Attorney General was justified in not charging Judge Richard Roberts, a former Justice Department prosecutor and current federal judge, with the sexual assault of a woman 35 years ago.
The AG’s office received notice of the incident in 2014 and quickly assigned veteran investigators to conduct interviews and collect evidence and senior prosecutors to screen the case. Additionally, Reyes enlisted former federal judge Paul Cassell as a special prosecutor to review the case and issue findings and recommendations. Cassell, known for his painstaking attention to detail and his advocacy for crime victims, compiled a report outlining the salient facts and evidence and advised the attorney general on the best course of action going forward.
In his report, Cassell determined that Roberts could not be prosecuted for having sex with a 16-year-old based on the existing criminal laws in 1981. Without an option to prosecute Roberts for having sex with an under-aged minor, prosecutors would need to pursue a full-blown rape charge and prove that sex was not consensual. Such cases are hard to prosecute in general, but in this instance, where the allegations are over 35 years old, no physical evidence of force seems to exist or was ever documented, and no witnesses other than Mitchell can corroborate the allegations, it would be nearly impossible to prove rape beyond a reasonable doubt and a failed attempt would further victimize Mitchell.
Cassell’s report in no way excuses Roberts’ actions and recommends the attorney general report the judge to various agencies for numerous ethical and professional violations. The AG’s office, complying with Cassell’s recommendations, disseminated the findings to numerous agencies, including the Justice Department, the Administrative Office of the Courts and Congress.
While countless prosecutorial missteps occurred in this case, the attorney general’s investigation and decision to not prosecute Roberts should not be counted among them. The easier and politically expedient path is to authorize a prosecution notwithstanding stale evidence and outdated law. The more difficult path for a prosecutor has always been declining a case. In the end, Mitchell deserves to be vindicated and justice needs to be served upon Roberts, but such may be better accomplished through other agencies applying other rules and laws than Utah’s inadequate 1981 laws.
Read the full op-ed here.