This is an archived article that was published on in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

As former federal prosecutors, we were shocked to learn of the allegations outlined in a lawsuit filed by Terry Mitchell, alleging that Richard Roberts, a former Justice Department prosecutor and current federal judge, repeatedly sexually assaulted her during a trial he prosecuted in Utah in 1981. Having prosecuted cases of violence against women, we recognize the need to put such predators behind bars. However, there are times where the facts and applicable law do not lend themselves to immediate justice through criminal prosecution.

Prosecutorial discretion becomes even more important where the alleged crimes took place decades earlier. While Roberts' actions, if proven, certainly constitute criminal behavior under today's laws and even gross prosecutorial misconduct, Utah Attorney General Sean Reyes' investigation into the matter and his decision not to prosecute the case under the outdated and lax laws of 1981, as he would be required to do, seem to be a sound exercise of prosecutorial discretion.  

In 1981, Roberts came to Utah from Justice Department headquarters to assist in the prosecution of serial killer Joseph Paul Franklin for shooting two black joggers in Liberty Park because of their race. Mitchell was a teenage girl who was with the victims when they were shot.  

As the trial neared, Roberts began meeting with Mitchell in anticipation of her testimony — often meeting late at night and even having one-on-one dinners. According to Mitchell, things escalated in the week leading up to the trial as Roberts began to take the then-16-year-old Mitchell back to his hotel, where he engaged in sexual acts with her against her will. These sexual assaults continued throughout the trial until Franklin was convicted and Roberts returned to Washington, DC. 

Roberts received commendations for his work on the case and would go on to hold various high-level positions within DOJ. In 1998, Roberts was made a federal judge in Washington, D.C., one of the highest-profile courts in the country, and later became chief judge. Throughout his career, Roberts never disclosed his inappropriate sexual relationship with his 16-year-old witness in Utah and must have believed the incident was safely behind him until the AG's office contacted him with its decision to disclose his alleged acts to various institutions overseeing his ability to practice law.

It is appalling to read of Roberts' alleged actions. A prosecutor has a duty to maintain the highest ethical standards and to avoid even an appearance of impropriety. Having sex with a 16-year-old witness — to which Roberts apparently admitted during a recorded conversation with Mitchell — even if arguably consensual, crosses all lines of propriety. Equally troubling are Mitchell's allegations that Roberts warned her not to disclose the sexual relationship because if she did, it would result in a mistrial and allow her friends' killer to walk free.

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.    

Brett L. Tolman is former United States Attorney for the District of Utah. Eric G. Benson is a former assistant United States Attorney. Both are current shareholders at Ray, Quinney and Nebeker.