Take a moment to imagine the following 2 scenarios.

Scenario 1. Company A produced the ExcellaFone smartphone which was widely loved and had no problems.  It was widely regarded as having the best reception and best sound of any phone on the market.  It was marketed and labeled by company C.  Company A more recently filed for approval of their new smartphone called the SupremaFone. The approval process involves the State Board of Phone Approval (BPA) and a citizen panel (no, I don’t think we should have either).  The DA of BPA presents the case for or against approval to the panel; if the panel approves, the phone can be produced but if the panel disapproves, it cannot.  She tells the panel of Company A’s past success and the panel issues its approval.  Company A moves forward and the phone is marketed by company C.

Scenario 2. Company B produced the BestPhone smartphone which was widely hated and had many problems, including causing a penetrating shriek in users’ ears that resulted in deafness for 1000 people.  It was widely regarded as having poor reception and poor sound compared to other phones on the market.  It was marketed and labeled by company C.  Company B more recently filed for approval of their new phone called the SuperbPhone smartphone. The same approval process is in place.  The DA of BPA tells the panel of Company B’s past failure and the panel refuses to approve.  Company B tables the plan.

This may all seem reasonable–ignoring, for now, the objection that no state approval should be needed in the first place.  (I agree with the objection.)

What, though, if Company A and company B were one and the same?  Let’s call the company “Multiple Phone Manufacturer” (MPM).  Would MPM have a complaint against the state in the second case?  Couldn’t they reasonably claim that the DA presented the case for the SuperbPhone in a way that biased the panel against them?  After all, if the DA included information about the ExcellaFone, the Panel may have decided otherwise.  Would phone users have a  complaint against the state in the first case?  Couldn’t they reasonably claim that the DA presented the case for the SupremaFone Phone in a way that biased the panel against them (and for MPM)?  After all, if the DA included information about the BestPhone, the Panel may have decided otherwise.

What if none of this was about phones but instead about an individual being charged with a crime?  What if a positive vote by the panel meant the individual would incur significant legal costs to defend himself, have to wait in jail for the opportunity to defend himself, and possibly end up in prison (if his defense failed)?  Would the way the DA presented her case–or the fact that she got to present her case at all–be a subject worthy of broad discussion?

See this Vox piece for some discussion.  I think prosecutorial discretion is a huge issue in need of examination and discussion.  I say that without assuming any malice on the part of prosecutors.