Doesn’t Matter Who Wins the K Race; We’re All the Same

[Greedy,Greedy,Greedy]

So Justice Thomas is now quoting Freakonomics in his opinions. This whole concurrence is just a troll, isn't it?

[Tyrone Slothrop]

Originally Posted by sebastian_dangerfield

Sure it does. It's not Ted Stevens level exculpatory, but it may show that certain claims against Assange are unwinnable (deemed by Obama DOJ to violate First Amendment) and brought in bad faith for leverage purposes.

Like I said, it doesn't go to any facts relevant to the claims. You want the defense to see the government's own assessment of legal arguments and I understand why you do, but that's not what I said.

At the heart of the controversies around Whitewater, Benghazi, Hillary's emails, Stevens, Menendez, Trump is the issue of whether politicians are using or hijacking prosecutions and investigations for political purposes. (Of course they are.)

I'm not naive enough to think selective prosecution will be a defense any time soon, as law enforcement would never allow something that would balance the system and give defendants true equal footing, but it ought to be at least a mitigating factor. Even Manafort's trial judge said as much when he mocked the prosecution for nailing Manafort for what he'd never have been charged with (a previous investigation for same charges was closed) but for his association with Trump. But of the myriad abuses politicians engage in, using prosecution as a tool (stunts like Devin Nunes' referring an already convicted Michael Cohen to the DOJ as a result of his Congressional testimony come to mind) wastes resources and debases a system which is supposed to be (to the unlearned at least) our least easily corrupted.

People have good reason to view the justice system with a jaundiced eye. It's not "imperfect." It's predatory, unfair, discriminatory, and has far too much unchecked power. If we can remedy some of that by making selective prosecution at least a mitigating factor for sentencing (if not the outright defense it ought to be) in politically polluted cases, that defense may trickle down to cases in which law enforcement preys upon the poor and disadvantaged because they're easy targets who can't afford lawyers. A step toward making selective prosecution a defense or mitigating factor would be making public the valid reasons Obama chose not to charge certain crimes and juxtaposing them against what I'm sure are the cynical reasons Trump's DOJ decided to charge. If we're going to be juxtaposing Barr's spin on Mueller against Mueller's actual words, let's also take a look at how Barr's logic on broader charges against Assange compares to Holder's logic.

This would be uniquely interesting because Holder was no friend of leakers and their abettors. And he was a cynical sort himself, not above creating dubious policies (recall the Holder Doctrine?). If Holder couldn't charge Assange as broadly as Barr's people have, it might expose that Barr is doing this for the most dangerous of reasons: He wants a showdown over the First Amendment.

If you ran the world, any defendant with the chops to create media buzz suggesting that they have been targeted unfairly would then get off, because you are a sucker for that sob story.

eta: If selective prosecution concerns you, how about the Supreme Court's decision today in Nieves? Much more concerning to me than the decision to prosecute Assange.

[LessinSF]

Originally Posted by Tyrone Slothrop

Like I said, it doesn't go to any facts relevant to the claims. You want the defense to see the government's own assessment of legal arguments and I understand why you do, but that's not what I said.



If you ran the world, any defendant with the chops to create media buzz suggesting that they have been targeted unfairly would then get off, because you are a sucker for that sob story.

eta: If selective prosecution concerns you, how about the Supreme Court's decision today in Nieves? Much more concerning to me than the decision to prosecute Assange.

I would put it this way - it is inadmissible legal opinion on the ultimate decision to be determined by the Court.

[Hank Chinaski]

Originally Posted by Tyrone Slothrop

Like I said, it doesn't go to any facts relevant to the claims. You want the defense to see the government's own assessment of legal arguments and I understand why you do, but that's not what I said.

Exactly. It would be like Osama Bin Laden saying President Obama's decision to kill him was wrong because Clinton reached the decision OBL was okay to leave alone.

[Pretty Little Flower]

Originally Posted by Tyrone Slothrop

Like I said, it doesn't go to any facts relevant to the claims. You want the defense to see the government's own assessment of legal arguments and I understand why you do, but that's not what I said.



If you ran the world, any defendant with the chops to create media buzz suggesting that they have been targeted unfairly would then get off, because you are a sucker for that sob story.

eta: If selective prosecution concerns you, how about the Supreme Court's decision today in Nieves? Much more concerning to me than the decision to prosecute Assange.

I am probably as sympathetic as anyone here to Sebastian's concerns about abuse of prosecutorial discretion and other misconduct. But the idea that the remedy is to probe into the prosecutor's motives to determine whether the prosecution was inspired by the desire for some political advancement or goal seems somewhere on the spectrum from hugely impractical to koo koo pants. In fairness, though, I think Sebastian was not suggesting that anyone with the chops to create media buzz would "get off," but that a defendant might be able to avail him or herself of an additional defense if the defendant could convince the judge that he/she had established whatever showing was necessary to allow for an inquiry into the prosecutor's charging decision.

[sebastian_dangerfield]

Originally Posted by LessinSF

I would put it this way - it is inadmissible legal opinion on the ultimate decision to be determined by the Court.

You can raise selective prosecution under equal protection theory. It’s just never been accepted.

There’s always a first time, however, and this would make those DOJ memos factually relevant.

[sebastian_dangerfield]

Originally Posted by Pretty Little Flower

I am probably as sympathetic as anyone here to Sebastian's concerns about abuse of prosecutorial discretion and other misconduct. But the idea that the remedy is to probe into the prosecutor's motives to determine whether the prosecution was inspired by the desire for some political advancement or goal seems somewhere on the spectrum from hugely impractical to koo koo pants. In fairness, though, I think Sebastian was not suggesting that anyone with the chops to create media buzz would "get off," but that a defendant might be able to avail him or herself of an additional defense if the defendant could convince the judge that he/she had established whatever showing was necessary to allow for an inquiry into the prosecutor's charging decision.

Yup.

And also, how can selective prosecution not apply as a defense where Blacks are being targeted for so many prosecutions where Whites are not? Statistically, that’s an all but irrefutable defense.

ETA: Also, shouldn’t charging for career or political reasons be considered corruption? If not, why? How is that not a prosecutor exploiting office for personal gain?

[Greedy,Greedy,Greedy]

Originally Posted by sebastian_dangerfield

Yup.

And also, how can selective prosecution not apply as a defense where Blacks are being targeted for so many prosecutions where Whites are not? Statistically, that’s an all but irrefutable defense.

ETA: Also, shouldn’t charging for career or political reasons be considered corruption? If not, why? How is that not a prosecutor exploiting office for personal gain?

Selective birth control is the new selective prosecution.

[Pretty Little Flower]

Originally Posted by sebastian_dangerfield

Yup.

And also, how can selective prosecution not apply as a defense where Blacks are being targeted for so many prosecutions where Whites are not? Statistically, that’s an all but irrefutable defense.

ETA: Also, shouldn’t charging for career or political reasons be considered corruption? If not, why? How is that not a prosecutor exploiting office for personal gain?

Presumably, most prosecutors want to be well-regarded in their careers. Therefore, they want to prosecute cases that 1) they think they are likely to win, 2) may get them favorable press coverage, 3) they think will present them as "being tough on crime" or "taking a stand against domestic violence" or whatever. Allowing a defendant to probe into these motives to establish that some or most all all of the prosecutor's motivations were abusive (whatever the standard would be) does not seem like a workable or even desirable solution. That said, I think there is a good argument that prosecutors should have some oversight and that there should be consequences for abuse of prosecutorial discretion. The number of prosecutors that will continue to fight a case even when there is evidence of a wrongful conviction is staggering and appalling.

https://slate.com/news-and-politics/...nvictions.html

[Tyrone Slothrop]

Originally Posted by sebastian_dangerfield

Yup.

And also, how can selective prosecution not apply as a defense where Blacks are being targeted for so many prosecutions where Whites are not? Statistically, that’s an all but irrefutable defense.

If someone has actually committed a crime, then letting them off because you don't like the prosecutor's conduct seems like the wrong answer for the rest of us. What about the victims of the crime? Shouldn't there be some remedy for the prosecutorial misconduct that doesn't let a criminal off the hook?

ETA: Also, shouldn’t charging for career or political reasons be considered corruption? If not, why? How is that not a prosecutor exploiting office for personal gain?

Isn't that what everyone elects prosecutors to do? Exercise sound judgment about which offenses to prosecute? If someone does a good job at that, isn't that good for everyone?

Originally Posted by Pretty Little Flower

Presumably, most prosecutors want to be well-regarded in their careers. Therefore, they want to prosecute cases that 1) they think they are likely to win, 2) may get them favorable press coverage, 3) they think will present them as "being tough on crime" or "taking a stand against domestic violence" or whatever. Allowing a defendant to probe into these motives to establish that some or most all all of the prosecutor's motivations were abusive (whatever the standard would be) does not seem like a workable or even desirable solution. That said, I think there is a good argument that prosecutors should have some oversight and that there should be consequences for abuse of prosecutorial discretion. The number of prosecutors that will continue to fight a case even when there is evidence of a wrongful conviction is staggering and appalling.

https://slate.com/news-and-politics/...nvictions.html

Agree with all of this, and especially that there should be consequences for abuse of prosecutorial discretion, but letting a criminal off the hook is not really a consequence for the prosecutor, except in the sense that we see that prosecutors become focused on convicting whomever they go after, as PLF notes -- but that is part of the problem, isn't it? Would rather find an answer that involves effective oversight of prosecutors, as with law enforcement more generally.

[sebastian_dangerfield]

If someone has actually committed a crime, then letting them off because you don't like the prosecutor's conduct seems like the wrong answer for the rest of us.

Depends on the crime and the accused. But generally, I agree with the sentiment.

What about the victims of the crime? Shouldn't there be some remedy for the prosecutorial misconduct that doesn't let a criminal off the hook?

In most of these instances, we're talking about victimless crimes. Things created by statute to protect property rights.

Isn't that what everyone elects prosecutors to do? Exercise sound judgment about which offenses to prosecute? If someone does a good job at that, isn't that good for everyone?

I don't think a "broken windows" policy is defensible. And that's perhaps the best example of selective or "make an example" prosecution. It's lazy. It's fear mongering. "Let's nail the junkies and petty thieve to send a shiver down the spine of those we don't feel like investing time to catch." I see little difference between this sort of deterrence and Martha Stewart's prosecution (I know people who've done worse and had to simply pay a fine and disgorge). Deterrence as justification is what perpetuates capital punishment, the most idiotic abuse of our justice system. You can't be a bit pregnant here. You're either for a perverted mindset that ties back to public drawings and quarterings as a device to scare and control subjects, or you're not.

Agree with all of this, and especially that there should be consequences for abuse of prosecutorial discretion, but letting a criminal off the hook is not really a consequence for the prosecutor, except in the sense that we see that prosecutors become focused on convicting whomever they go after, as PLF notes -- but that is part of the problem, isn't it? Would rather find an answer that involves effective oversight of prosecutors, as with law enforcement more generally.

I agree with both of you there. I think oversight is preferable. But deterrence/public example thinking must be eradicated. And as to historically targeted communities, selective prosecution should be a viable defense. A system cannot prey on the weak and not be held to account for doing so. Nailing a few prosecutors for doing so every decade won't cut it. The embarrassment of seeing a guilty person freed regularly is the lesson that needs to be sent to prosecutors who abuse their power on an ongoing basis. If you're preying on poor and minority communities, you need to be outed. And oddly, similarly, if you're opportunistically nailing the likes of Martha Stewart where others would get a pass, so you can aid your career, you need a reversal to stop you from further similar acts.

[Tyrone Slothrop]

Originally Posted by sebastian_dangerfield

In most of these instances, we're talking about victimless crimes. Things created by statute to protect property rights.

Not sure what you are talking about here. This started with a discussion of Julian Assange. His actions had very direct effects, which had little to do with property rights. The phrase "victimless crimes" seems like a euphemism to avoid the discussion of what Assange did, what its effects were, and whether the government should use the criminal law in such cases. So too with Benghazi, the Mueller investigation, and other things you mentioned.

I don't think a "broken windows" policy is defensible. And that's perhaps the best example of selective or "make an example" prosecution. It's lazy. It's fear mongering. "Let's nail the junkies and petty thieve to send a shiver down the spine of those we don't feel like investing time to catch." I see little difference between this sort of deterrence and Martha Stewart's prosecution (I know people who've done worse and had to simply pay a fine and disgorge). Deterrence as justification is what perpetuates capital punishment, the most idiotic abuse of our justice system. You can't be a bit pregnant here. You're either for a perverted mindset that ties back to public drawings and quarterings as a device to scare and control subjects, or you're not.

Broken windows is not about simple deterrence, and has nothing to do (AFAIK) with Martha Stewart. But I get that you are instinctively opposed to prosecuting people for stuff.

I agree with both of you there.

That seems like a nice note to end on.

[sebastian_dangerfield]

Not sure what you are talking about here. This started with a discussion of Julian Assange. His actions had very direct effects, which had little to do with property rights. The phrase "victimless crimes" seems like a euphemism to avoid the discussion of what Assange did, what its effects were, and whether the government should use the criminal law in such cases. So too with Benghazi, the Mueller investigation, and other things you mentioned.

Regarding Assange, his actions did have dire impacts. However, so did Daniel Ellsberg's. So has every significant leak. And it really depends on who's defining the impact. If you think the govt's covert actions should be exposed, Assange is perhaps a hero. If you think the govt's covert actions are more important, you think he's a reckless person who probably caused the deaths of many.

(My opinion is Assange's leaking of names was unnecessary and reckless. I have a problem with that. That takes him out of the hero category with Ellsberg and Snowden.)

Moving beyond Assange, I used "victimless crimes" because very often, politically charged cases involve politicians or their charges violating campaign finance law, or some bizarre law on disclosures or reporting gifts, or registering as a foreign lobbyist (that ridiculous case against that Obama DOJ lawyer). There are no real victims there.

And the war on drugs is the mother of all victimless-crimes-used-to-subjugate-the-poor-and-minorities schemes. Nobody's a victim in the marijuana, mdma, hallucinogens, or even (to an extent) cocaine trade. (Heroin, PCP, crack, meth? Okay, they have victims.) Shit. Purdue Pharma has killed more people in the past 20 years than every coke dealer in the US combined. The govt has probably killed more people than every dealer in the country by forcing drugs into the unregulated black market, where they are adulterated with god only knows what.

Real crime creates real and direct harm to real people, and it involves intent, or at least substantial recklessness. Dealing weed or selling shrooms or doses at a Dead show is harmless. And on the political stuff, I still can't figure out how Benghazi would be a crime if all of the allegations were true. How would that be beyond mere negligence?

Broken windows is not about simple deterrence, and has nothing to do (AFAIK) with Martha Stewart. But I get that you are instinctively opposed to prosecuting people for stuff.

It's all on a continuum of prosecution designed to get maximum attention. Slightly different roads to the same end: Deterrence. That's prosecutor-as-social-engineer. Some people think that's fine. I'm not comfortable giving that kind of power to any public servant without severe oversight.

And Martha also served another purpose: Getting her prosecutors air time. That'll get a prosecutor a nice pay bump when he flips to the private sector to handle defense work. Demonstrates you can handle the attention and the media.

[Tyrone Slothrop]

Originally Posted by sebastian_dangerfield

Regarding Assange, his actions did have dire impacts. However, so did Daniel Ellsberg's. So has every significant leak.

Of course one can draw distinctions between different situations, instead of dismissing them as "victimless crimes." That was my point. Thank you for your support.

Moving beyond Assange, I used "victimless crimes" because very often, politically charged cases involve politicians or their charges violating campaign finance law, or some bizarre law on disclosures or reporting gifts, or registering as a foreign lobbyist (that ridiculous case against that Obama DOJ lawyer). There are no real victims there.

So do you think those laws are pointless?

And on the political stuff, I still can't figure out how Benghazi would be a crime if all of the allegations were true. How would that be beyond mere negligence?

No kidding.

And Martha also served another purpose: Getting her prosecutors air time. That'll get a prosecutor a nice pay bump when he flips to the private sector to handle defense work. Demonstrates you can handle the attention and the media.

In other words, it was about something other than deterrence. Thank you.

[sebastian_dangerfield]

Originally Posted by Tyrone Slothrop

So do you think those laws are pointless?

In other words, it was about something other than deterrence. Thank you.

1. Yes.

2. Among other things, including deterrence. Reread.