Re: Tall white mansions and little shacks.
 

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.

Re: Tall white mansions and little shacks.
 

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.

Re: Tall white mansions and little shacks.
 

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?

Re: Tall white mansions and little shacks.
 

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.

Re: Tall white mansions and little shacks.
 

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.

Re: Tall white mansions and little shacks.
 

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.

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?

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

Re: Tall white mansions and little shacks.
 

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?

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

Re: Tall white mansions and little shacks.
 

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.

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.

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.

Re: Tall white mansions and little shacks.
 

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?

Re: Tall white mansions and little shacks.
 

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

Re: Tall white mansions and little shacks.
 

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."

Right.

See above.

TM

Re: Tall white mansions and little shacks.
 

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.

Re: Tall white mansions and little shacks.
 

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.

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.

Re: Tall white mansions and little shacks.
 

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?

Re: Tall white mansions and little shacks.
 

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.