Is Ted Cruz Satan? Discuss.

[Atticus Grinch]

Originally Posted by ThurgreedMarshall

Finally, let me add that we should put your argument in perspective. We currently live in a system where, if you are black and are murdered by a cop, you can expect the cop who murdered you to not only not face a trial, but not even an indictment because the system is so fucking fixed in favor of cops that they are able to continually act with impunity. Your argument is that you are terrified that prosecutors will run wild bringing cops to trial as a way to score political points when they have strong evidence to convict but probably won't because juries don't convict cops. This is the nightmare scenario you've been standing on your head all day trying to protect us from. Maybe you're so in the weeds of trying to provoke liberals (too!) that you've lost any actual real world context.

No, my argument is that prosecutors will bring ANYBODY THEY WANT to trial, not cops in particular. In fact, as we all know, they’re inclined AGAINST charging cops under both systems; your proposed rule would only alter the behavior of DAs who are personally inclined neutrally or against cops, but live in jurisdictions that will acquit because of the jury pool. But meanwhile, you’ve changed the decisionmaking for all DAs, even really bad ones, to say that if they believe in the guilt of the defendant, any defendant, it’s okay to charge even if the jury is expected to acquit for any reason, racist or not.

If you’ve been assuming my desire is to protect cops from political prosecutions, you’re mistaken. I don’t particularly care. I just think by pushing on this lever, you’re tinkering with machinery that’s a significant protection of civil rights FOR DEFENDANTS. Not cops; all defendants. That is my nightmare scenario — that there would be no outer limit to the bringing of charges for “vindication” and show trials.

BTW, local prosecutors have immunity from malicious prosecution suits, in case that affects your calculation of the incentives.

[Atticus Grinch]

Originally Posted by Tyrone Slothrop

Perhaps, and it depends why the case is weak. For example, I can imagine supporting a prosecutor who decides to prosecute more rape cases because she thinks it will deter crime and make other victims more likely to come forward, even though in her experience juries often find reasons to acquit. I suspect you would support that as well. Do I think this because rapists are bad? Well, of course, but that's hardly all of it.

I want them to bring cases they think (or believe) they can win, and never bring any case they think they will lose, rape or otherwise. I do not want them to bring charges for the purpose of deterring crime, or to encourage victims to come forward, ever. I would prefer that the state bar impose discipline on any prosecutor who brought a case for that reason. Of course, most will say they thought they would win, and I hope to God that’s true. If I started to disbelieve it, I would vote for any qualified challenger. I think a prosecutor who brings criminal charges as impact litigation is a vomitous idea.

[Tyrone Slothrop]

Originally Posted by Atticus Grinch

I want them to bring cases they think (or believe) they can win, and never bring any case they think they will lose, rape or otherwise.

I want them to bring cases they think they can and should win. Am sure neither of us thinks a prosecutor should bring a case just because she can win it.

I keep saying that you are setting up a straw man by talking about a case that is 100% likely to lose, but you must like that straw man an awful lot, because you just keep setting it up again. Go nuts with your "will lose" point, but at this point you are either trolling or being willfully obtuse with it.

I do not want them to bring charges for the purpose of deterring crime, or to encourage victims to come forward, ever.

Surely not for the sole purpose of such things, but where a prosecutor thinks that she has some chance of winning, shouldn't those effects be relevant? Or are you simply not going to address a situation where a prosecutor sees an uphill case instead of a dead-bang, 100% loser?

[Atticus Grinch]

Originally Posted by Adder

Where is the equal protection issue with, for example, setting up a division of the state attorney general's office to handle all cop prosecutions?

Really? A special prosecutor with exclusive jurisdiction over criminal cases based on a characteristic of the defendant? Once again, either that will be struck down in five minutes by the court, or, in the best case scenario, it will be upheld and then we’ll have all kinds of special prosecutors for all kinds of things.

If a prosecutor has a conflict of interest sufficient to be disqualified, it goes to the AG. But usually it means a preexisting relationship with the defendant or the victim that would deprive the defendant of a fair trial. Not my area in particular, but I don’t think a victim usually has an enforceable right to this prosecutor or that one.

[Atticus Grinch]

Originally Posted by Tyrone Slothrop

I want them to bring cases they think they can and should win. Am sure neither of us thinks a prosecutor should bring a case just because she can win it.

I keep saying that you are setting up a straw man by talking about a case that is 100% likely to lose, but you must like that straw man an awful lot, because you just keep setting it up again. Go nuts with your "will lose" point, but at this point you are either trolling or being willfully obtuse with it.



Surely not for the sole purpose of such things, but where a prosecutor thinks that she has some chance of winning, shouldn't those effects be relevant? Or are you simply not going to address a situation where a prosecutor sees an uphill case instead of a dead-bang, 100% loser?

I’m saying I don’t want it enshrined that it’s okay to bring a case even though it is a loser. What’s enough? One percent chance of winning? Let the electorate decide whether that’s tilting at windmills. But a prosecutor who feels that the prospect of getting a conviction is not determinative of the decision to charge is not healthy at all. Which is why you’ve probably never heard a DA say that they brought a charge but didn’t expect to win — weren’t surprised when they heard “not guilty.” I wouldn’t oppose a judge issuing an OSC if s/he heard that, post-trial. Which is why you don’t hear it, and shouldn’t.

[Tyrone Slothrop]

Originally Posted by Atticus Grinch

I’m saying I don’t want it enshrined that it’s okay to bring a case even though it is a loser. What’s enough? One percent chance of winning? Let the electorate decide whether that’s tilting at windmills.

The prospect of an electorate punishing that particular decision is fanciful at best, but whatever. Your line is between a 0% chance of winning (not OK) and a 1% chance (let the electorate sort it out later). Fine. I agree. I have a hard time imagining anyone here disagrees.

But a prosecutor who feels that the prospect of getting a conviction is not determinative of the decision to charge is not healthy at all.

It certainly might not be healthy, but I don't think you can say this categorically. And I note that I keep trying to identify specific types of prosecutorial decisions where this might be appropriate, rather than arguing a general principle.

Does your view change if the government is bringing civil charges instead of criminal?

Which is why you’ve probably never heard a DA say that they brought a charge but didn’t expect to win — weren’t surprised when they heard “not guilty.” I wouldn’t oppose a judge issuing an OSC if s/he heard that, post-trial. Which is why you don’t hear it, and shouldn’t.

That might be one reason, but you and I can think of others.

[ThurgreedMarshall]

Originally Posted by Atticus Grinch

No, my argument is that prosecutors will bring ANYBODY THEY WANT to trial, not cops in particular. In fact, as we all know, they’re inclined AGAINST charging cops under both systems; your proposed rule would only alter the behavior of DAs who are personally inclined neutrally or against cops, but live in jurisdictions that will acquit because of the jury pool. But meanwhile, you’ve changed the decisionmaking for all DAs, even really bad ones, to say that if they believe in the guilt of the defendant, any defendant, it’s okay to charge even if the jury is expected to acquit for any reason, racist or not.

Even really bad ones? You seem to want to try to move away from the scenario I was specifically discussing--and that is natural because it is a distasteful scenario. But I specifically stated that it was one in which the prosecutor knows the evidence is damning and on which no reasonable jury would fail to convict. That's an objective standard. If you're saying bad prosecutors won't know the evidence is actually convincing or wouldn't be able to convict due to poor performance, you are changing the subject. If your fear is prosecutorial subjectivity and arbitrary application, then we are having two different discussions. But if that's the case, you only just now changed it up.

If you can name for me examples of potential cases that fit the scenario where the evidence is so overwhelming that the prosecutor knows that only an "activist" jury will decline to convict, and that will lead to this reality in which we have prosecutors pushing for a trial to either score political points or punish a defendant (who is objectively guilty based on the available evidence), I would like to hear them.

But let's go with your argument of the dangers of a subjective prosecutorial read of the jury scenario. What do you think poses more of a problem, prosecutors who look at the defendant and then look at a community and say?:

(i) "No way I can get a conviction of this [awesome cop who I work with who I can't ever accuse if I want to have a career in this department] [defendant who is the same color as me and therefore not so bad] [guy who went a step too far with a woman and all women are basically asking for it], even with all this damning evidence, so I won't even bring the case;" or

(ii) "I have a ton of evidence, I know I can't get a conviction because the jury is sure to ignore that evidence, but I'm going to bring this case anyway because I'll [score some political points] [punish the defendant by publicly shaming him]."

How does it work right now?

Originally Posted by Atticus Grinch

If you’ve been assuming my desire is to protect cops from political prosecutions, you’re mistaken. I don’t particularly care. I just think by pushing on this lever, you’re tinkering with machinery that’s a significant protection of civil rights FOR DEFENDANTS. Not cops; all defendants. That is my nightmare scenario — that there would be no outer limit to the bringing of charges for “vindication” and show trials.

Again, why would prosecutors do this? They already have tons of ways to screw defendants to get exactly what they want and they do it regularly. I need some context to this no limit nightmare scenario. I would surely like to compare it to who gets screwed right now and by how much.

TM

[Adder]

Originally Posted by Atticus Grinch

Really? A special prosecutor with exclusive jurisdiction over criminal cases based on a characteristic of the defendant? Once again, either that will be struck down in five minutes by the court,

I'm not sure where you're seeing the right to have prosecutors assigned in any particular way, why a state does not have wide latitude to organize its justice system or why you think cops are a protected class, but I'm pretty sure you're wrong.

In fact, I'm pretty sure there lots of specialized federal prosecutors of this type. I'm not exactly sure what the Office of Tribal Justice, for example, does, but I suspect it's EP okay.

or, in the best case scenario, it will be upheld and then we’ll have all kinds of special prosecutors for all kinds of things.

Again, federally, we have all kinds of prosecutors with subject matter expertise in addition to a system of geographic prosecutorial assignment.

I'd wager states do that too.

If a prosecutor has a conflict of interest sufficient to be disqualified, it goes to the AG. But usually it means a preexisting relationship with the defendant or the victim that would deprive the defendant of a fair trial.

Yup, and I'm saying a local prosecutor has a pre-existing relationship with its local police department, and by extension, every local cop. That's how we treat law firms, after all.

[Greedy,Greedy,Greedy]

Originally Posted by Atticus Grinch

I’m saying I don’t want it enshrined that it’s okay to bring a case even though it is a loser. What’s enough? One percent chance of winning? Let the electorate decide whether that’s tilting at windmills. But a prosecutor who feels that the prospect of getting a conviction is not determinative of the decision to charge is not healthy at all. Which is why you’ve probably never heard a DA say that they brought a charge but didn’t expect to win — weren’t surprised when they heard “not guilty.” I wouldn’t oppose a judge issuing an OSC if s/he heard that, post-trial. Which is why you don’t hear it, and shouldn’t.

Besides, when we don't have a case but still want to engage in a bit of deterrence, we can always just use a black site, like the one in Chicago, or send them to Gitmo, right? I mean, you don't really need to bring a case as long as you lock them up and play strappado with them, right?

[ThurgreedMarshall]

Originally Posted by Atticus Grinch

I want them to bring cases they think (or believe) they can win, and never bring any case they think they will lose, rape or otherwise. I do not want them to bring charges for the purpose of deterring crime, or to encourage victims to come forward, ever. I would prefer that the state bar impose discipline on any prosecutor who brought a case for that reason. Of course, most will say they thought they would win, and I hope to God that’s true. If I started to disbelieve it, I would vote for any qualified challenger. I think a prosecutor who brings criminal charges as impact litigation is a vomitous idea.

This is the problem. You ignore all the other aspects of the legal system and justice because you are overly focused on "thought they couldn't win." That makes sense when you have a situation where the evidence doesn't support a conviction.

But I cannot possibly see the parade of horribles that follows if a prosecutor has clear and indisputable evidence of a murder of a gay man and he decides to go ahead with the trial for many reasons (including, stigma from the trial, message sent to others who think killing gay men is easy to get away with, national media attention, message sent to victims and potential victims that the people are doing their best to protect them like anyone else, etc.) even though he knows his small community is filled with homophobic assholes. This is more vomitous than letting someone you know murdered someone else walk without even going to trial?

TM

[ThurgreedMarshall]

Originally Posted by Atticus Grinch

Really? A special prosecutor with exclusive jurisdiction over criminal cases based on a characteristic of the defendant?

So a personal relationship qualifies, but a professional one should be ignored? You must be saying there is no scenario at all which warrants a special prosecutor, because as it stands right now, special prosecutors are lawyers "from outside the government appointed by an attorney general or, in the United States, by Congress to investigate a government official for misconduct while in office."

Originally Posted by Atticus Grinch

Once again, either that will be struck down in five minutes by the court, or, in the best case scenario, it will be upheld and then we’ll have all kinds of special prosecutors for all kinds of things.

Right.

Originally Posted by Atticus Grinch

If a prosecutor has a conflict of interest sufficient to be disqualified, it goes to the AG. But usually it means a preexisting relationship with the defendant or the victim that would deprive the defendant of a fair trial. Not my area in particular, but I don’t think a victim usually has an enforceable right to this prosecutor or that one.

See above.

TM

[Greedy,Greedy,Greedy]

Originally Posted by ThurgreedMarshall

Again, why would prosecutors do this? They already have tons of ways to screw defendants to get exactly what they want and they do it regularly. I need some context to this no limit nightmare scenario. I would surely like to compare it to who gets screwed right now and by how much.

TM

Exactly. And let's not forget that the police have plenty of ways to screw defendents, too. In the real world, it's often about "street justice", and courts are just there to put some icing on the cake.

We have an outrageously high prison population. When we go complaining about repressive regimes, it's important to note many of those we complain about use force much less than we do. (Not to say it's still not worth complaining about places like Saudi Arabia, Israel, Egypt, or Russia, even if their rates of incarceration are all significantly lower than ours). You don't get a prison population like ours without giving police and prosecutors extraordinary powers.

Our cops also kill people at rates that would make many a dictator blush.

[Tyrone Slothrop]

Originally Posted by Atticus Grinch

Really? A special prosecutor with exclusive jurisdiction over criminal cases based on a characteristic of the defendant? Once again, either that will be struck down in five minutes by the court, or, in the best case scenario, it will be upheld and then we’ll have all kinds of special prosecutors for all kinds of things.

This sort of arrangement happens all over the place, only the "jurisdiction" (that's a weird way of referring to the way that prosecutors divide cases within their offices) turns on the type of conduct, not the characteristic of the defendant. Here, Adder will tell you that the conduct is abuse of police power or some such thing, and that it would benefit from prosecutors who focus on this special area, and Bob's your uncle.

If a prosecutor has a conflict of interest sufficient to be disqualified, it goes to the AG. But usually it means a preexisting relationship with the defendant or the victim that would deprive the defendant of a fair trial. Not my area in particular, but I don’t think a victim usually has an enforceable right to this prosecutor or that one.

Of course, Adder is trying to tell you that he thinks that prosecutors have an institutional relationship with police that creates systemic problems akin to a conflict of interest, even if it doesn't fall within the requirements for that rubric as the law currently stands. That's the starting point for this conversation, not an incidental point of law.

[taxwonk]

Originally Posted by Atticus Grinch

I want them to bring cases they think (or believe) they can win, and never bring any case they think they will lose, rape or otherwise. I do not want them to bring charges for the purpose of deterring crime, or to encourage victims to come forward, ever. I would prefer that the state bar impose discipline on any prosecutor who brought a case for that reason. Of course, most will say they thought they would win, and I hope to God that’s true. If I started to disbelieve it, I would vote for any qualified challenger. I think a prosecutor who brings criminal charges as impact litigation is a vomitous idea.

Fourteen men stand accused of rape on different occasions. The crimes are in no way related. Fourteen armed burglaries have occurred. Fourteen separate persons are accused of committing each burglary.

Simple logic says: 5 of each, right? But suppose you wanted to deter rape. Maybe you try 6 rape cases and 4 burglary. What is the danger to the people?

[Greedy,Greedy,Greedy]

Originally Posted by taxwonk

Fourteen men stand accused of rape on different occasions. The crimes are in no way related. Fourteen armed burglaries have occurred. Fourteen separate persons are accused of committing each burglary.

Simple logic says: 5 of each, right? But suppose you wanted to deter rape. Maybe you try 6 rape cases and 4 burglary. What is the danger to the people?

Under the current system, all the rapists go free, ten of the burglars are beaten to a pulp, four of those ten actually charged and convicted, and the four white ones are let off with a warning.

What's wrong with that? Crime is down.