Politics: Onward from New Hampshire

[Hank Chinaski]

Originally posted by Atticus Grinch
Actually, I don't blame the legislature; they're doing the best they can writing laws without knowing the facts of the individual case. They only sound stupid when something like this happens.

By comparison, prosecutors have discretion to charge, including the discretion not to charge at all. It happens every day. Ask a prosecutor --- they'll tell you they keep more guilty people out of prison every month than a defense attorney can hope to in an entire year.

The prosecutor should be ashamed of him or herself, for not realizing that em was ruining far more lives than em was salvaging. What else is the purpose of the criminal law than to make a bad situation slightly better? When you're obviously making it worse for all involved, you shouldn't be able to look at yourself in the mirror without spitting.

At my vocational law school, our criminal law prof. said statutory rape and this sort of statute (actually I never had heard of such a statute, but it fits the thought) were often used to backstop cases where the prosecutor thought there was actual rape, but was concerned about possible "she enticed him" arguments. If the description of the actual rape as being soooo not true was accurate, it is bringing the rape charge that is perhaps the most questionable.

[Atticus Grinch]

Originally posted by bilmore
But I thought the whole "anti-individual-discretion" movement was predicated on the idea that such decisions had to be removed from the hands of individuals, and transferred to formulae. The whole sentencing guidelines concept arose there, based on the idea that we needed to get these decisions out of the hands of anyone who COULD make the decision on unacceptable grounds. How can we now allow prosecutors to do what we don't allow judges to do? (I'm not arguing that this isn't the case - I don't know anymore - just that, if it is, isn't this a step back to unequal justice?)

All of these pitfalls are true, but I assure you that the federal sentencing guidelines and the three-strikes movement have been written with an eye toward decreasing judicial power, but vastly increasing prosecutorial power. Why else are the judges complaining about prosecutors overcharging in order to get better leverage for plea deals?

I do not like the drawbacks of powerful prosecutors, but the drawbacks of a prosecutor who has no discretion --- or who believes em has no discretion --- strike me as far greater. Who wants to see an eleven year old sent up for aggravated destruction of property worth more than $500 for busting out a few double-paned windows? The examples of crimes that are overlooked by prosecutors in order to enhance the QOL of the involved parties are legion. Example on the downside would be uncharged domestic violence. Example on the upside would be not charging every single vehicular death as involuntary manslaughter.

[Secret_Agent_Man]

Originally posted by bilmore
These cases are getting more and more common, and more and more ridiculous. But, place most of the blame on legislatures that write these very detailed laws. (Is a prosecutor supposed to ignore the wording? I don't think they can, without being accused of picking and choosing which laws to enforce.)

Fun Fact: He'll have to register as a Sexual Predator for the rest of his life.

Disagree to the extent that every charging decision by every prosecutor involves the use of discretion.

There is no requirement that you charge every defendant with every crime you possibly could -- and this kid should _not_ have been charged wtih "aggravated child molestation" in a case where the consensual sex would have been legal if the girl were 65 days older.

I think that it is the duty of a prosecutor, to some extent to "pick and choose" in each individual case in the interests of justice. (yes, dangerous argument). If the prosecutor doesn't exercise that discretion, they are no longer professionals fighting for justice with decency and integrity, and are merely hammers at the disposal of whoever signs their paycheck.

In this case, the line guy might have had no choice in the charging decision, but he should still feel like he can't scrub hard enough to get the slime off his skin.

S_A_M

ETA -- Hank's probably right about the "backup charge" theory.

[bilmore]

Originally posted by Atticus Grinch
All of these pitfalls are true, but I assure you that the federal sentencing guidelines and the three-strikes movement have been written with an eye toward decreasing judicial power, but vastly increasing prosecutorial power. Why else are the judges complaining about prosecutors overcharging in order to get better leverage for plea deals?

I do not like the drawbacks of powerful prosecutors, but the drawbacks of a prosecutor who has no discretion --- or who believes em has no discretion --- strike me as far greater. Who wants to see an eleven year old sent up for aggravated destruction of property worth more than $500 for busting out a few double-paned windows? The examples of crimes that are overlooked by prosecutors in order to enhance the QOL of the involved parties are legion. Example on the downside would be uncharged domestic violence. Example on the upside would be not charging every single vehicular death as involuntary manslaughter.

I guess I have to agree with the basic idea, but this still scares me. At what point do we find that only blacks are charged with coke crimes? That only Catholics are charged with DWI? That only non-relatives of prosecutors are charged with . . . anything?

Or am I preaching to the choir?

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch


The prosecutor should be ashamed of him or herself, for not realizing that em was ruining far more lives than em was salvaging.

Well, he gave a white 16 yo virgin a basis to say she was still pure. In some parts, I imagine that's much more valuable than 10 years in jail for a black man.

[Gattigap]

Originally posted by bilmore
I guess I have to agree with the basic idea, but this still scares me. At what point do we find that only blacks are charged with coke crimes? That only Catholics are charged with DWI? That only non-relatives of prosecutors are charged with . . . anything?

Or am I preaching to the choir?

I agree that the risk of abuse of prosecutorial discretion is disturbing, but I've never really thought of its mere existence as alarming in the ways that you describe.

We need discretion in the system somewhere for the reasons that Atticus mentioned earlier. If the legislatures do not trust the judiciary to provide it, at least the prosecutors should have it. At least theoretically, in the event of abuse of discretion, the press will publicize it, and voters can throw the bums out.

BTW, a quick Google search reveals here and here that Marcus' case is before the GA Supremes now.

[Gattigap]

Which must be the case, because I'm surprised noone has posted about this. (Maybe it hasn't hit FNC yet).

The NYT is reporting that Al Quaeda is running into difficulties in Iraq after uncovering a 17 page memo written by a senior Al Quaeda operative.

The memo says extremists are failing to enlist support inside the country, and have been unable to scare the Americans into leaving. It even laments Iraq's lack of mountains in which to take refuge.

Yet mounting an attack on Iraq's Shiite majority could rescue the movement, according to the document. The aim, the document contends, is to prompt a counterattack against the Arab Sunni minority.

Such a "sectarian war" will rally the Sunni Arabs to the religious extremists, the document argues. It says a war against the Shiites must start soon — at "zero hour" — before the Americans hand over sovereignty to the Iraqis. That is scheduled for the end of June.

Though not definitive re: outcomes, it's a good indicator that things aren't all hummus and pita for the local Al Quaeda crew. Good news indeed.

[sebastian_dangerfield]

Originally posted by Atticus Grinch
Actually, I don't blame the legislature; they're doing the best they can writing laws without knowing the facts of the individual case. They only sound stupid when something like this happens.

By comparison, prosecutors have discretion to charge, including the discretion not to charge at all. It happens every day. Ask a prosecutor --- they'll tell you they keep more guilty people out of prison every month than a defense attorney can hope to in an entire year.

The prosecutor should be ashamed of him or herself, for not realizing that em was ruining far more lives than em was salvaging. What else is the purpose of the criminal law than to make a bad situation slightly better? When you're obviously making it worse for all involved, you shouldn't be able to look at yourself in the mirror without spitting.

Its a combination of political whores writing laws and ambitious - and in this case, very obviously classist/racist - prosecutors fucking up the system. Eliot Spitzer has done impressive work on Wall St, but the Stewart prosecution is an appalling waste of tax dollars. If you or I did what she did, we'd be slapped with a fine. The ludicrous securities fraud charge (based on Martha's protestations of innocence), which the judge will undoubtedly throw out at some point, is nothing short of amazing. The stupidest first year law student wouldn't try to float a theory that absurd, and I think - and hope - it will damage the greater case becuase it makes the prosecution look exactly as they should - absurd whores.

The fault at the end of the day really lies with the prosecutors, not the legislature. The legislature are politically minded idiots and most of them don't know any better. They're elected from the masses and have no idea what their "tough on crime" policies do in reality. The prosecutors should be the filter. I am all for prosecutors' offices being forced to pay for and lose their jobs when they bring frivolous cases to court. The State is like a small child. Unless threatened with fines, it will not learn to keep its ambitious politically minded filth in check. Prosecutor should be a rather sacred position, not a place for people to make their political bones.

[Not Me]

Originally posted by Gattigap
Though not definitive re: outcomes, it's a good indicator that things aren't all hummus and pita for the local Al Quaeda crew. Good news indeed.

I think we can all agree that it is good news.


Not only has Iraq served as the flypaper to keep terrorist attacks off of US soil, the defeat and pathetic surrender without a fight of SH followed by the establishment of a democracy in an Arab country will do more to defeat islamic extremism than anything else we could have done.

The plan is starting to bear fruit.

[The Larry Davis Experience]

Originally posted by sebastian_dangerfield
Eliot Spitzer has done impressive work on Wall St, but the Stewart prosecution is an appalling waste of tax dollars.

What does the NY AG have to do with Martha Stewart? Isn't she being prosecuted in fed court by the US Atty?

[The Larry Davis Experience]

Originally posted by Not Me
I think we can all agree that it is good news.

I have this feeling that we'll see the attacks slow down at some point, but that will be more a sign that the folks over there are conserving their ammo as the US prepares to reduce its forces in country this spring. I mean, if there was a well-publicized troop pullout coming up, wouldn't you want to do your best to make sure it happened as planned?

Or maybe I'm giving the insurgents too much credit for armchair rationality.

[Secret_Agent_Man]

Originally posted by Gattigap
Though not definitive re: outcomes, it's a good indicator that things aren't all hummus and pita for the local Al Quaeda crew. Good news indeed.

No mountains? Iraq's got plenty of mountains! Just ask the Kurds to rent you some of their old caves.

S_A_M

[Atticus Grinch]

Originally posted by sebastian_dangerfield
The ludicrous securities fraud charge (based on Martha's protestations of innocence), which the judge will undoubtedly throw out at some point, is nothing short of amazing.

Maybe this is too Inside Baseball, but if this is a fair characterization of her false statements, why doesn't the Exculpatory No doctrine apply to them? Wasn't she charged under 18 U.S.C. § 1001?

I haven't been following this case, but if she merely protested her innocence, she's got an Exculpatory No defense.

[sgtclub]

Originally posted by Atticus Grinch
Maybe this is too Inside Baseball, but if this is a fair characterization of her false statements, why doesn't the Exculpatory No doctrine apply to them? Wasn't she charged under 18 U.S.C. § 1001?

I haven't been following this case, but if she merely protested her innocence, she's got an Exculpatory No defense.

I have it on good information that she's dirty on this.

[Atticus Grinch]

Originally posted by sgtclub
I have it on good information that she's dirty on this.

Hey, I'm sure she lied and all, but if she's being prosecuted under the FSA she's entitled to the protections of the Exculpatory No defense. I was asking whether her statements to regulators/investigators fell outside that doctrine, because you're privileged by the FSA case law to make certain exculpatory statements even when they're flat falsehoods. It keeps the feds from nailing your ass under the FSA for saying stuff like "You've got nothing on me, G-Man!"* even when it's false.

*Or whatever the kids are saying these days to the FBI.