We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.
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Samizdata quote of the day A defendant who makes the wrong choice will wind up in jail; a prosecutor who charges improperly will suffer little, if any, adverse consequence beyond a poor win/loss record. Prosecutors are even absolutely immune from lawsuits over misconduct in their prosecutorial capacity.
So I think we should give prosecutors some skin in the game. Let juries be informed that they may refuse to convict if they think a conviction is unjust — and, if that happens, let the defendants’ attorney fees and other costs be billed to the government. Also, let juries be informed that, if they believe the prosecution itself was malicious or unfair, they can make that finding — in which case the defendants’ costs should come out of the prosecutor’s budget. (If you want to get even tougher, you could provide that the prosecutors involved should be disqualified from law practice for a year or stripped of their immunity from civil suit. But I’m not sure we need to go that far).
– Glenn Reynolds
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What, no public flogging for a second offense and permanent disbarment for a third strike?
Call in W S Gilbert.
Let the jury return a bill of impeachment of the prosecutor, to disqualify that prosecutor from any public office or funds (in the State or Federal level as the case may be) for life, and remove all pensions or hope of office.
Perchance let the jury impeach the judge too. It would be a good start.
I think we should go three times that far.
I think there should be absolutely no immunity if a prosecution is born of malice.
The nearly unaccountable power of the state should be wielded only with great trepidation.
I’m a prosecutor by trade. Reynolds knows better than this.
Jurors aren’t the ones to evaluate prosecutorial conduct based on trial proof. They know little of the history behind a prosecution, and often base acquittals on credibility decisions that are a matter of unpredictable things that happen at trial. MANY things are hidden from jurors in order to protect the rights of defendants, both by constitutional protections and the rules of evidence.
So what about a prosecution that appears unfair but isn’t? If I have inadmissible but certain evidence that makes guilt clear, or evidence that doesn’t appear at trial?
I’ll give you an example. Had a homicide case where witness, from across a two lane road, saw defendant beat victim to death with a two by four. Witness knew victim only as his across the street neighbour.
Defendant had been an accomplice in some burglaries with victim. Victim had been caught and had told the police about defendant’s guilt. He had also led the police to the stolen goods.
I spoke with witness right before trial. He was still in line with his previous statements. Lots of gory detail, even matching up well with a couple of autopsy details like a random blow on the left ankle.
The trial was quick. Called witness, set up the location and date. “So, what did you see across the street?”
“Nothing. I went out on the porch to see if it looked like it would rain. Then I went back inside.”
That would sure look like every sort of bad prosecution to a jury.
It’s part of my duty to dismiss cases where the proof isn’t sufficient. Probably ten percent of the cases I have I wind up dismissing because witnesses fail to appear, or change their stories, ON TRIAL DAY. How am I supposed to be able to predict that? Never mind how I’m meant to predict that jurors will decide that someone is lying based on who knows what? “Oh, she was lying, if he had raped her she would have fought him. There would be scratches.”
There are plenty of mechanisms to punish the truly bad prosecutor. The choice not to use them is one of public indifference, not lack of systems.
As long as crime, and excessive force, and prosecutorial misconduct happen mainly to people no one important cares about, no one important will care.
In Baltimore or Chicago, and I’m sure in many other places, no white prosecutor handling a case against a black defendant would remain in office under most of these sentiments.*
There’s a cycle to these things. The war on crime and the war on drugs has left us with too much court precedent (i.e., law) that minimizes prosecutorial malfeasance. We’ve hit that peak, and already started a reverse slope. Believe it or not, prosecutors are more responsible for their bad acts than they were three years ago.
The same wars have fostered both precedential and legislated law that removes power and discretion from judges and places it (by default) into prosecutorial hands. This too is beginning to be reversed.
If you want to punish someone for the excesses (aside from the most egregious overprosecution cases that will always be used to excuse egregious overreaction, and which already have remedies available even if underused), punish the lawmakers who appeased their crime-fearing constituents by pressing so close against Constitutional protections from the State.
(* Yes, I understand that this would simply give the voters and jurors in these cities the lawless sorts of environments that they seem to desire, but I blame my progressive friends more for such mis-education than I do the relatively stupid voters themselves.)
What staghounds said.
And I say this as an ex-defense lawyer.
Canada has been there, seen that and taken steps. It is NOT the criminal jury which decides whether a prosecution was malicious. In Canada, the defendant sues the prosecutor for the tort of malicious prosecution and the matter is handled in civil court with all of the due process protections that that provides.
The tort itself focuses on the core attributes of prosecutorial discretion. Prosecution is malicious if there is or was no reasonable prospect of conviction, and the prosecution was undertaken for an improper purpose or motive.
A large proportion of the egregious prosecutions which we read about ( viz Radley Balko) involve situations where there is no prospect of conviction and the charge is laid as a threat. Examples abound, but the “video recording of the police” equals “obstruction” would be a good starting point. Police in Illinois and Massachusetts are *still* laying those charges *with impunity.
Open a new tab and read paras 36-47 at: https://www.canlii.org/en/on/onsc/doc/2014/2014onsc455/2014onsc455.html
The tests are stringent but they exist. In the US there are no limits on the police or the prosecutors. I think it would not take more than a couple of malicious prosecution claims to go to trial to change some prosecutor’s attitude (whether or not the claim prevailed). And like a ‘Human Rights’ complaint, prosecutors as a whole would soon understand that the process can be its own punishment.
BTW, in Canada, the equivalent of a ‘Brady violation’ has been held to be acceptable evidence of the lack of a proper reasonable expectation of obtaining a conviction. If you had to conceal exculpatory evidence then you likely did not reasonably believe that a conviction was possible. And intentionally concealing a violation has been held to be evidence of improper motive too, even where the violation was negligent. As usual, the coverup causes more damage than the crime.
In response to Staghounds whinge, that was not a case of malicious prosecution for which he could be blamed. As noted, it should not/would not be the trial jury who decides that in any event. He found himself at trial with a witness *who likely committed perjury*. Maybe he should consider using a ‘Martha Stewart’ warning well in advance of trial, and getting a sworn statement. He has that power to assist keeping witnesses on the straight path. And why didn’t he put the prior statement to the witness?
I don’t do criminal law.
If you do criminal law, you have to associate with liars, thieves, cheats and scoundrels. And the clients are worse.
staghounds nails it.
The jury trial system is methodically set up to limit what the jury sees to limit prejudicial effects. Expecting them to make meaningful judgments of this sort would be a mockery of due process, and that’s even leaving out the way in which it would further incentivize corrupt prosecutors to hide/destroy/distort evidence, and the overarching pro- or anti- police prejudices of juries that would distort any results.
Only actual investigations and prosecutions of prosecutors would properly address this problem. I’m not sure how you’d assemble the force of mirror universe prosecutors necessary to the task.
As the one group that does the most, every day, to attempt to limit the application of the overwhelming power of the State against powerless individuals – as the one group that stands guard over the principles enshrined in our Constitution even when it is unpopular to do so – the defense bar does end up being looked down upon by the more “proper” types who would rather not be soiled by association with those powerless individuals.
There are jerks, just as there are jerks in plumbing and accounting. But, generally, you won’t find a more principled group of people, nor a more libertarian one.
My time doing that work was probably the most rewarding of my time as an attorney, my co-workers the most noble group I’ve ever encountered. Sadly, defense work fails that part of most business plans which require finding a market that can afford your services. In hindsight, had I remained, I would have been poorer, but happier.
I agree that there are far too many instances of what I (and, I think, any reasonable person) would consider to be “prosecutorial misconduct.” But that doesn’t mean I would go as far as Reynolds. The Canadian system described by Dyspeptic Curmudgeon seems pretty reasonable: treat it as a civil offense handled in a separate trial.
But what Reynolds doesn’t mention is the historical, common-law remedy for this problem: jury nullification. I’ve read that its roots stretch back as far as the Magna Carta (although I’m not convinced of that), but it absolutely dates at least from 1670 and the trial of William Penn. When the jury ignored the judge’s instructions and acquitted Penn of “preaching to an unlawful assembly”, the angry judge fined and imprisoned them. After a long nine weeks they were released by an appellate court, and the concept of jury nullification was firmly established in English (and later, American) law. (To this day there is a tablet hanging in the Old Bailey commemorating “the courage and endurance” of those jurors.)
The fundamental reason that juries exist is not to “decide questions of fact” (as judges and prosecutors would have you believe), but rather to protect the weak from the depredations of a powerful government. Nullification is the citizens’ final bulwark against an oppressive state, whether that oppression takes the form of unfair or unduly harsh laws, a biased or vindictive judge, or abusive or politically motivated prosecution. It serves to inject community standards and values into the administration of justice. As Lysander Spooner wrote in 1852, “Unless such [nullification] be the right and duty of jurors, it is plain that, instead of juries being a ‘palladium of liberty’ — a barrier against the tyranny and oppression of the government — they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.”
But prosecutors and judges hate nullification, and with good reason: it impinges upon their power. This is why they do everything in their power to conceal it, to hide knowledge of its existence from jurors, and to exclude from jury pools anyone who knows about it. (Voir dire has descended into a particularly egregious form of jury tampering.) Force him to do so and a judge will grudgingly admit that nullification is within a jury’s lawful powers (that is indeed the law today), but they won’t allow you to know it. Prosecutors have broad powers to decide whether or not to prosecute; judges can dismiss cases or direct verdicts; even the executive branch has powers of pardon and clemency. It is only the jury which today is effectively denied its rightful power to refuse to convict notwithstanding the evidence.
Restore jury nullification to its proper place in the administration of justice and much of the problem of prosecutorial misconduct will disappear.
One thing the criminal lawyers here are forgetting: the process is the punishment, a phrase recently popularized by Mark Steyn though not original to him. Being put through the process by a prosecutor, with whom the decision lies, is enough to ruin a person’s life even if he gets acquitted by a jury (so unlike Laird I don’t see jury nullification alone as an effective deterrent). Leaning on someone to accept a guilty plea, well before all of the evidence has been developed (usually), is most effective in this era where a single act can be presented as multiple separate criminal violations, each carrying a possible penalty of multiple years’ imprisonment. Prosecutors, at least in the US, are expected to be every bit as “productive” as the typical worker. Racking up a record of convictions, preferably by the easy route of plea bargain, is necessary to a successful career as a prosecutor, is it not? Are the prosecutors here suggesting that they are somehow immune from the pressures that affect all of us in our respective lines of work?
While I don’t doubt the representations of the prosecutor-commenters here who defend the integrity of their peers, the fact remains that there is ample evidence of prosecutorial abuse just as there is of police abuse, and expecting the profession to police itself (as opposed to the jury option Reynolds suggests or the civilian review boards that police unions adamantly oppose) on the basis that most prosecutors, even the “vast majority,” are men and women of integrity is unreasonable (why can’t all of us be free from prosecution on the same basis?).
The issue is government immunity generally. Qualified or not, sovereign immunity or prosecutorial immunity, when the government and its agents are exempt from application of the same laws that the rest of us are subject to, then we cannot be said to be a government of laws not men; our society is not one of the rule of law. Get rid of sovereign immunity, force the government to face the same absurd tort and criminal laws and, more importantly, procedures that the rest of us face, and you will find legislatures shedding laws and reforming the remainder faster than you can imagine.
There’s a practical problem with messing with concepts of immunity in regard to police or prosecutors or judges.
A city building inspector goes to work every day and makes decisions about building codes and stairs and setbacks. An accountant adds up numbers. A city plumber fixes city pipes. They generally do not make decisions that will affect life or death, or even major life-course changes for others. If they make mistake, they are not asked to repay for the value of a life ruined.
A cop or a prosecutor makes such life-altering decisions many times per day. We instruct them to do so. We tell them that, absent malice or profound carelessness, we will indemnify them should they make a mistake on our behalf. We fire them if they make too many such mistakes, but we bear the financial burden of indemnity. Only when they clearly attempt to intentionally foster injustice do we remove this protection.
And we pay all those listed above close to the same wage.
If we remove this promise of indemnity, we could never afford to pay cops or prosecutors enough to interest them in working for us. The risk/reward benefit just wouldn’t work out.
Sure it would. Let the victims sue the government and not the individual, just as with corporations today. If a guy sexually harasses a woman at work, she sues the company, not the guy.
Additionally, the resulting reduction in laws from eliminating sovereign immunity would reduce the need for prosecutors meaning those who remain would be of better quality and better paid.
Wait, what? This really happens? I thought that was a Hollywood thing. Aren’t people who change their testimony from deposition open to some kind of perjury charge?
The entire concept of sovereign immunity has been turned on its head. The original concept was that the king could do no wrong, but that never applied to his ministers, who could be and were sued over for wrongdoing. Somewhere in the 19th century courts transformed that concept into the government could do no wrong, which was never the rule. And from that we evolved the despicable concept of “qualified immunity”, which as a practical matter has become near absolute immunity for any government official no matter how egregious his actions.
Think not? The Institute for Justice publishes a weekly summary of interesting cases which it calls “Short Circuit“. Here are two squibs from this week’s edition:
You read cases like this every week. I will grant that they don’t represent the vast majority of police-citizen interactions, but they happen often enough to make one’s blood boil. “Qualified immunity” is entirely judge-made law; I am aware of no statute in any jurisdiction which created it. Yet almost daily those of us who follow this sort of thing read of police officers committing outrageous acts and getting off scott-free because of “qualified immunity”. And if you really want to get angry read David Hardy’s “I’m from the Government and I’m Here to Kill You“, which gives the history of sovereign immunity and its bastard child sovereign immunity.
I understand that police officers are called upon every day to make split-second, life-or-death decisions. They are human; they can make mistakes. But they should still be held to the same standards of accountability as are the rest of us. Juries can make a decision as to whether the action was justified, and they are just as capable of doing a good job of it in the case of a police officer as with any other citizen; if the system is good enough for us mundanes it should be good enough for them, too. Maybe it would force them to be a little more careful before pulling the trigger, and would more quickly get some of the inevitable bad apples out of that barrel.
The police are not our masters, nor are they supposed to have special powers let alone be some sort of para-military force. They are ordinary citizens assigned by society to do a specific job. That doesn’t make them our superiors, but too many seem to have forgotten that (if they ever knew).
My understanding is that in the case of Liam Allan, dozens of thousands of exculpatory text messages were withheld by a prosecutor. Mr. Allen suffered through two years of prosecution that, to me, seem should never have occurred.
Apparently the prosecution actively misbehaved, risking the liberty and reputation of an innocent man, with clear evidence that he was innocent.
What will be done to any prosecutors that worked to prevent this exculpatory evidence into court?
What rather should be?
Link to an article on this case
That’s actually what already frequently happens.
Most governmental entities operate under some form of waiver of immunity. Back in the 40’s, there was a wave of “government responsibility” sentiment, and the US passed the Federal Tort Claims Act (28 U.S.C.§2674), waiving immunity to liability for many actions. States also passed their own such waiver legislation. So, even when you cannot sue an individual officer, you can still sue his employer.
Plus, if a municipality purchases liability insurance, then it is deemed to have waived immunity to the extent of that coverage. If a Chicago cop with a bad history shoots you for unsupportable reasons (“unsupportable” is a gross generalization made simply to save pages of typing), you may not be able to sue the cop, but you can sue Chicago for negligent hiring, neg. retention, neg. supervision, neg. training, neg. establishment of standards and procedures, etc. and be awarded their entire insurance coverage limits.
There are additional ways that immunity gets waived, all put in place so that victims can be compensated. There’s no longer one hard and fast immunity rule – it varies by jurisdiction. Most cops are more protected by indemnification than by immunity.
Amen. They’ve become over-militarized, insular, actively hostile to everyone they work for, devious and dishonest (with court permission), and just plain scary. Their own safety is now their paramount value, and woe to anyone who they decide might be a threat. I used to believe “the policeman is our friend,” but I now counsel everyone I know that an encounter with the police is likely the most dangerous situation most people will ever in their lives face. Our entire conception of policing needs to be redone.
There also used to be a thing, at least in “British’ law, called “malicious prosecution” .It doesn’t seem to get much notice, these days, probably because it disrupts the illusion of “orderly, due process” and potentially briefly stifles the money and influence train.
“Malicious Prosecutions” include ones where the purpose of the prosecution is extra-legal “attitude adjustment”, by running some impertinent bastard through the legal meat-grinder; the “process” being the punishment. No conviction, or compensation at the end of ten years of “due process”? Too bad, so sad, don’t the the door hit you on your raggedy, impoverished back-side on the way out.
It gets to be a bit of a worry when some of these prosecutors become “judges” themselves, because some of their underlings know the game as well.
The reason that the statue of “Justice” is blindfolded is that as soon as possible, she will be taken out the back of the wood-shed and shot for being a nuisance.
Fine, then allow me the QET Tort Claims Act, where punitive damages are excluded and liability is only for intentional torts, and none at all for discretionary functions. All I ask is that my government live under the same laws as I must.
I agree 100% with bobby b’s latest comment (3:15 AM). The militarization of the police is the single biggest problem we have with them today (at least, in the US). And unfortunately it’s not getting any better, with the federal government showering local police departments with “surplus” military gear, and police forces receiving paramilitary training. That all needs to stop.
And his previous comment (3:05 AM) about the Federal Tort Claims Act is correct, too, as far as it goes (although the reach of such tort claims acts is not quite as broad as he implies). But while individuals who are harmed by “unsupportable” (to borrow bobby b’s term, and the associated caveat) police conduct might, in some cases, be successful in receiving monetary compensation, in my opinion that is insufficient. If the malefactors don’t personally suffer some form of punishment the conduct will continue. And while a city which employs such persons would, if sensible, remove them from its police force quickly (if only to prevent future monetary judgments and insurance claims which will drive up its costs), as a practical matter firing such persons is often practically impossible due to the power of police unions and other procedural impediments. They need to be sanctioned outside of bureaucratic procedures, i.e., privately through the legal system. This is why “qualified immunity” needs to be abolished.
staghounds argument (at January 19, 2018 at 5:16 pm) seems strong (that intentional restrictions on what they are told mean juries do not know enough to make a useful judgement whether a prosecution was malicious). At most, a jury might state an opinion that some body allowed to know more should review whether the prosecution was malicious.
Any procedure-change must not be trivially gameable by the criminals, especially the organised ones. Every professional criminal knows to make a complaint against their policeman if opportunity offers; I’m sure prosecutors would experience the same. The suddenly forgetful witness staghounds described sounded like a very probably case of witness intimidation. It would be icing on the cake for the murderer or his friends then to punish the prosecutor.
Recent news suggests we have a problem in the UK with ‘believe the victim’ in PC cases leading to unjust prosecutions – and/or merely inept investigations. The attendant publicity may make a change – for the better or the worse.
As far as I can tell, the militarization of the police forces in the US (in both its physical and mental aspects) is the result of the nation being in a state of a continuously escalating war – namely, the war the government is waging on its citizens under the name The War on Drugs. As long as that continues to be the case, I’m afraid any measures mentioned here would achieve little in the way of protecting innocent people from the overreach of the various law-enforcement actors, plus they may bring with them some of the undesirable consequences that have been mentioned above.
Let’s see- first, I return Bobby B’s compliments. We all need the work defence lawyers do, and I welcome being closely watched. If I don’t like having my work checked by an adversary, I’m doing something wrong. Thank you for having done your difficult and essential job.
Nullification is fine with me, I’m supposed to try cases that comport with the public’s sense of justice. A couple of no agreement mistrials ended obscenity prosecutions where I live many years ago. I for one wish that a bunch of marijuana possession defendants would insist on jury trials, after a dozen non convictions in a given jurisdiction I suspect the local DA would stop prosecuting them. My experience is that there are plenty of jurors who are perfectly happy to nullify in “this shouldn’t be a crime” cases. Fortunately the jury trial in my jurisdiction below the level of a house burglary or DUI is rare to the point of non existence- most of ours are homicides, attempt murders, child rapes, armed robberies, and DUIs, where nullification is usually the defendant’s hope and t sometimes happens. (DUI trials are fairly common because there’s no trial penalty and there are plenty of non traditional defendants who pay their lawyers by the hour.)
War on drugs and so forth. I don’t know where all these drug possession defendants are getting warred on and convicted at trial. In almost 30 years, I’ve never seen a jury trial for drug possession, and I’ve never seen a drug possession defendant get more than a fine and diversion for the first offense. I have never seen anyone where I live ever be sentenced to jail time who ONLY possessed drugs once and then stayed of of trouble. Maybe it’s different other places.
The war on drugs isn’t very warlike in the United States. It’s not shooting and stabbing tens of thousands of Americans every year. It’s not occupying millions of people’s neighborhoods with violent, dangerous insurgents.
The way we do it, it’s more of a slap fight against drugs. Sort of like our occasional poke in the eye fight against murder, or our embarrassed look away fight against domestic violent crimes.
And on that particular case. Of course I could have tried to impeach him with is previous statements, but no jury would have convicted the killer. All the motive stuff was inadmissible hearsay, I knew it but no way could I have gotten it to the jury. The only charge I could have made stick was a false police report or maybe perjury charge, which is an E felony like stealing $501-$999.
The worst punishment the witness could have was the one he arranged for himself- belonging to that defendant. Which he did, the minute he lied. Hope he enjoys his new master.
SEE also, the very current & especially the comments:
The “link” did not link. Here are the urls:
http://www.libertylawsite.org/2018/01/18/juries-judge-the-law-as-well/
http://www.libertylawsite.org/2018/01/16/jury-nullification-good-or-bad/
Dissent.
It’s more of a war by the police than the justice system, but they definitely consider it a personal sort of war. I’ve seen so, so many pretextual stops or searches on people where it was obvious from how the police handled themselves that they were simply looking for the hated drugs, and being suspected of drug possession by the police usually means the police don’t just do their jobs – it means that you are the enemy and they can treat you very badly. I saw quite a few clients at arraignment with stitches, bruises, and casts, and these weren’t the violent psycho types on dust – these were pot smokers and coke users.
While I was doing defense work, I can’t count the number of times I was pulled over by the local crew for things like “straying over the center line” or “failure to come to a complete stop” and had my car torn apart. And then received no ticket. Just part of the war, as they made clear to me. They hated the users, and so they hated the users’ lawyers.
On the prosecution side, the “war” comes into play in the draconian penalties assigned by law. I had clients who faced more time for possession of a few grams of coke than they would see had they hurt people badly. We saw so few drug trials because the sword hanging over their heads made it too dangerous to not accept a plea deal that got them maybe 10% of the incarceration that they could have faced, but which was still substantial time. (Plus, of course, drug possession is pretty cut and dried – very few were not guilty or had any sort of basis for evidence exclusion. We could have rolled the dice and hoped for nullification, but otherwise we seldom had much of a defense.)
Besides money, one of the reasons I quit defense work was the amount of time I was spending with cops aiming their loaded and racked weapons at me as I exited my vehicle. They don’t like defense lawyers. Had a wife and kids, and the odds weren’t good. Since I left that practice decades ago, it never happens anymore. Coincidence, I guess. Or war.
I should mention the prosecutors. Self-righteous, implacable, machine-like. But honest. They’d work their rules to the edge, but I never had one break the rules on purpose, never had one hide evidence, never had one pull underhanded tricks. They get a bad rap for the acts of a very few. If I could demonstrate to them that a client truly was innocent, they would dismiss, even if they could have won at trial. Their excesses usually stem from the fact that our legislators have handed them incredible bargaining power. It simply makes your job easier to be able to say “take 120 days, but if we go to trial and you lose, you get three years.”
What Bobby said. Still though, I never mentioned possession, staghounds: what I actually had in mind for the most part was dealing. In your informed opinion, how much of the violence with which law enforcement throughout the country has to deal is not related to dealing and trafficking of illicit drugs?