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Pataki declined to define the standard by which to review the executive superseder power, questioning whether "one [was] applicable at all.
Indeed, Attorney General Cooper recognized the need for prosecutorial oversight in North Carolina when he dismissed charges in the Duke Lacrosse case, noting "the enormous consequences of overreaching by a prosecutor" and calling for a form of judicial superseder to remove errant prosecutors from cases.
207) Indeed, limited resources on the part of the governors and attorneys general (208) as well as public defenders and court-appointed defense attorneys may restrict the use of superseder to only the most egregious instances of prosecutorial misconduct and community distrust.
Even with established standards and procedures for appointing special prosecutors and judicial review of such appointments, the executive superseder power may still possess some limitations.
An additional safeguard against potential abuse by the executive branch may be to vest the power of executive superseder with attorneys general instead of governors.
In addition to the executive branch's internal safeguards, the judiciary must take an active role in reviewing the executive's use of the superseder power.
To provide transparency for the superseder process, the recommendations of both committees should be made available to the public in an annual report issued by the governor or attorney general's office.
The consequences of the Nadjari blizzard of publicity-seeking broadsides and questionable or marginal cases (and I have barely scratched the surface with my selected illustrations) demonstrate the preferred imperative: trust should be invested in the regularized, tested processes, entities, and institutions to maintain and develop respect for and confidence in them, not disrespect and cynicism by diversion and superseder.