Re: Is Ted Cruz Satan? Discuss.
 

I couldn't have put it better myself.

Re: Is Ted Cruz Satan? Discuss.
 

As I'm sure you know better than I do, there are all sorts of governmental bodies whose functions are essentially executive who get insulated from voters. Who runs mass-transit in the Bay Area, and when did I vote for her? When there's a traffic jam, who does a voter vote out of office? Are you truly frightened by that, too, or is only the police who need unfettered discretion?

Re: Is Ted Cruz Satan? Discuss.
 

Who said anything about the police having unfettered discretion?

Yeah, I don’t like the BART Board either — they’re appointed by other politicians, but that’s because it’s a JPA, not for the purpose of insulating them from voters. The only people we intentionally protect from politics are federal judges, the Fed chairman, and schoolteachers. I do not favor expanding that list.

Re: Is Ted Cruz Satan? Discuss.
 

I think this is unrealistic for a number of reasons. First, the way it's stated -- I don't know if you mean it this way -- suggests that you don't believe prosecutors should ever "settle", as in accept a plea to a lesser crime when they believe they can prove a more serious crime. Again, I don't know if you mean it that way (depends on whether you mean "bring charges" to refer only to the actual charging phase, or to pursuing charges through trial). If you do, you certainly know that's unworkable without a lot more courts and money. If you don't, then the minute you accept that prosecutors, or any other person within the state structure, can settle a case, you've accepted that discretion has a place within the system.

Second -- and this may be a chicken-and-egg issue -- criminal statutes have proliferated in a way that makes all kinds of charges available for any given kind of conduct. In that way, the statutes allow for discretion, and almost require it. The "chicken/egg" issue is that this is often designed, I believe, to maximize the prosecutors' ability to leverage a plea.

Consider the death penalty example. How many "special circumstances" are there in California now? Several dozen? Virtually any murder can be tried as a capital crime. I don't think that is desirable, nor practical.

Finally, once you introduce the concept of judgment - i.e., when a prosecutor thinks he can get a conviction -- then you have introduced some form of discretion, no? These things are not always yes/no questions. How sure does a prosecutor need to be that she can get, say, a first-degree murder conviction, before she should decide to charge only second-degree murder or manslaughter?



Anyhoo. Discussing this stuff reminds me of how much I hated my Crim Law professor (who would have turned this discussion into a lecture about Hegel), and how complex it all is, especially when so much of our societal structure has developed around choices that are in many ways bad. Perhaps we should go back to topics where we all just bunker down in our zones of self-assuredness and lob curses at each other (and at Hank).

Re: Is Ted Cruz Satan? Discuss.
 

The BART Board is elected. Just sayin'.

Re: Is Ted Cruz Satan? Discuss.
 

Oh, right. I’m not in their jurisdiction so I don’t get a say. Much like me and Bob McConnell.

Re: Is Ted Cruz Satan? Discuss.
 

Cool. Which of you guys is going to run?

Re: Is Ted Cruz Satan? Discuss.
 

I am highly confused by what you just posted. If a prosecutor does not believe that he can prosecute a man who has murdered a gay woman, because he knows for a fact that no jury in his community will ever find that man guilty, he shouldn't prosecute?

I used this hypo because it seems stupid to me to lay out a fact pattern about police who commit crimes since the news is littered with them.

TM

Re: Is Ted Cruz Satan? Discuss.
 

Isn't that what a petition for a change of venue is for? I realize it's an extreme step, and one that often isn't worth the expense, but for the really egregious acts, it is an option, albeit one I don't know is effective.

Re: Is Ted Cruz Satan? Discuss.
 

I'm pretty sure that a prosecutor cannot request a change of venue. The prosecutor chooses the venue in the first place, and doesn't have jurisdiction elsewhere.

Re: Is Ted Cruz Satan? Discuss.
 

One of my colleagues was on the BART board many years ago. Talk about a cluster-fuck. At the time, the guidelines required the trains to do things that were literally physically impossible.

Still, I asked him what it was like (he had a campaign poster in his office), and he pointed out that he met one of his biggest clients there, and that "it was worth it just for da' bitches."

Re: Is Ted Cruz Satan? Discuss.
 

You're a wanker.

Re: Is Ted Cruz Satan? Discuss.
 

Yes, I’m saying that if a prosecutor does not believe he/she can get a properly-constituted jury to return a verdict of “guilty” as to a charge on admissible evidence, he/she is ethically bound not to bring that charge, even if he/she is personally convinced of the person’s guilt. So, for example, if the prosecutor has read a sworn confession but it’s inadmissible, and the remaining evidence is insufficient to support a conviction, then the prosecutor commits an ethical breach in bringing it.

Re: Is Ted Cruz Satan? Discuss.
 

Oh. Okay.

Re: Is Ted Cruz Satan? Discuss.
 

Wankers rule the world.

Tall white mansions and little shacks.
 

I could be wrong, but I understood TM's question to be more directed to a hypothetical prosecutor who thinks that an all kitty cat jury would acquit Tom for attempted murder of Jerry.

Or, you know, deciding to prosecute Byron De La Beckwith for the murder of Medgar Evers in Mississippi state court in 1964. That was unethical?

Re: Tall white mansions and little shacks.
 

Putting someone through a trial where you’re expecting an acquittal is unethical, even if the defendant is a shitbag who deserves to sweat a little bit. As is holding them pretrial for as long as possible even though you know you won’t charge and/or won’t win.

It’s weird how modern liberalism makes exceptions to some principles of state power if the bad guy is a particular kind of bad. But no, we don’t want a justice system where putting a person through a trial is a form of punishment for those we cannot convict. And that’s true for racists, murderers and child rapists, in case we’re going back to the well for more hypos.

ETA: "insufficient evidence" in my example was designed to cover the all-cat jury who would never convict Tom.

Re: Tall white mansions and little shacks.
 

Perhaps we are speaking past each other. Let me be clear - I am not talking about insufficient evidence or losing a motion to suppress. I am talking about a jury pool who will almost certainly not convict regardless of evidence. White defendant accused of killing black man in Ross Barnett's Mississippi. Or maybe a "traditionalist" Mormon accused of bigamy in rural Utah, Arizona, Colorado. Greenpeace eco-saboteurs who sink a Japanese whaling vessel in Portland. They all get a pass when arrested?

(Deleted the hypo re the Hasidic scholar accused of sexual assault, which was loosely based on a real case, because that was more about difficulty in getting witnesses from that community to testify.)

Re: Tall white mansions and little shacks.
 

You aren't troubled by the decidedly anti-democratic implications of allowing the inherent biases of the jury pool to nullify the duly enacted will of the people?

I take your point about the inadmissible confession but there seems to be some difference between a lack of sufficient admissible evidence and no conceivable amount of evidence that would convince a biased jury.

And what's the basis for the prosecutor's assumption in the latter scenario? How does he really know he's not going to luck into a jury pool of 12 self-loathing cats? Does he check the latest polling first? How does he know it's not his own biases that are leading him not to bring the case?

Re: Tall white mansions and little shacks.
 

How do you feel about jury nullification? Is that "anti-democratic"?

I’m sure there is, when we write hypos where we can just write a bunch of shit down and say "Assume there’s overwhelming evidence and no reasonable jury could ever do anything but convict . . . ."

You can fight my hypo all you want by saying it will never happen, but my guess is you’re often confused when your local prosecutor calls a press conference to announce that a case is being dropped. I’ve just given you the framework they use. “We decided we couldn’t get a conviction” is what they mean whenever a case is dropped. There’s usually something about his years of trial experience, plus a reference to some pretrial motion by a fucknut state court judge. I’m sure Sidd had a case where some of the charges were dropped pretrial and others weren’t. It only makes the news when the last one is dropped, but this is the mushy calculus: Am I going to lose? It’s the thing that keeps thousands of people out of jail.

Re: Tall white mansions and little shacks.
 

I'm hep to your jive, man.

Re: Tall white mansions and little shacks.
 

Now just you wait a minute. We totally convicted Tre Arrow! Okay, he ultimately plead, but why would he do that if he didn't know we would TOTALLY convict his hippy eco-saboteur ass?

Re: Tall white mansions and little shacks.
 

I'm going to go out on a limb and suggest that when the local prosecutor does that, it's not because she has a case in whose merit she completely believes but which she believes she cannot win. The two are not independent variables, and things are rarely that cut and dried.

In my experience, it's not uncommon for the government to develop a case which has some merit but which will not be easy to win. Prosecutors must balance the odds of winning with the significance of the case, both in its immediate effects and also, sometimes, other less proximate effects. A case that can't be won would be an easy call, in part because cases that can't be won don't usually have much merit.

Consider the appellate lawyers for a government agency which can appear as an amicus. Should they always make the arguments they think will ultimately prevail, or should they advance legal positions which they think better law and policy but which might not win?

Re: Tall white mansions and little shacks.
 

The latter, I hope, but analogizing a brief in the appellate court to a criminal trial against a flesh-and-blood man is not particularly illuminating.

We’ve had this argument before and no minds were changed. I just enjoy provoking conservatives to admit liberal principles, and fairness dictates that occasionally I should provoke a liberal or two to espousing some frighteningly illiberal ideas, and “We should make people go through a trial because that’s the worst we’re allowed to do to them” is something I can provoke a liberal to say if we start with the presumption the defendant is a cop, or a racist, or best of all a racist cop. But it’s a terrible policy to have prosecutors who “vindicate” the victims of crimes by bringing charges that in their judgment are doomed to failure. It makes charging someone with a crime a noble act, and if God forbid it is ever made the official policy of the land, it will harm the poor and disenfranchised and minorities a million times more than it will afflict the comfortable.

Re: Tall white mansions and little shacks.
 

Sure, but at least it's twelve random citizens instead of one prosecutor with a handy excuse.

Sure, and the easy cases are easy. Which is why you keep retreating to them.

What about the hard ones?

Re: Tall white mansions and little shacks.
 

Are you fucking kidding me? I answer “yes” when NotBob asks if I’m standing on principle to let a racist murderer get away with it, and you call that “retreating”? I’m leaning in, bitch.

Re: Tall white mansions and little shacks.
 

Inadmissible evidence is one thing -- your confession that can't be used example.

But you are suggesting that the prosecutor should assume -- or believe, based on experience -- that jurors will not follow their own oaths, and will engage in classic "juror nullification." I don't think that's something prosecutors should bow to.

The flip side of what you are saying is not to attack liberals for supporting abuse of state power when the defendant is someone they don't like. Rather, the flip side of what you are saying is that, if a prosecutor knows that the evidence is weak, but the defendant is black and the victim was white and the jury pool is racist, then he should prosecute. To which I say, no.

Re: Tall white mansions and little shacks.
 

I find it hard to think of too many things that are more anti-democratic.

Re: Tall white mansions and little shacks.
 

Tough guy is not a look that works for you.

Now deal with Sidd's hypo of the weak case against the black defendant with a white victim and a juror pool the prosecutor believes is racist and will convict.

Re: Tall white mansions and little shacks.
 

Present the case, add in any exculpatory evidence, since it is, after all, part of the prosecutor's job to see that justice is served. Make it clear enough that even John Roberts could see the jury was acting inconsistently with the facts and rule no reasonable jury could convict, entering judgment NOV from the bench. At least that's what I would do.

If I was still unable to serve justice, I would find a way to appeal the conviction.

Re: Tall white mansions and little shacks.
 

Why not just decline to prosecute because you believe no reasonable jury would convict?

Same as when you face the inverse and you choose to prosecute because you believe no reasonable jury would acquit.

Re: Tall white mansions and little shacks.
 

I think that prosecutorial discretion goes out the window in some high-profile cases. At some point, people do want to see the process in process. I think that any place you have even the appearance of impropriety or conflict of interest, discretion demands a hearing.

Re: Tall white mansions and little shacks.
 

Since when does a person have to defend the inverse of his own argument? “You believe A; logically you should also believe Not-A” is Amateur Hour stuff. The answer is it would be an ethical breech to bring false charges just because you believe the jury will convict. Sheesh. If you or Sidd think that somehow proves something about what we’re talking about, you’re both nuts.

Re: Tall white mansions and little shacks.
 

I don't think I disagree with the above, but it gets a lot harder (and more realistic) as soon as the prosecution is an uphill battle instead of "doomed."

Re: Tall white mansions and little shacks.
 

Back when the SF DA wasn't charging simple possession cases and everybody else was, what do you think motivated that? Or is it somehow better when the DA also believes that what is California law shouldn’t be the law?

Re: Is Ted Cruz Satan? Discuss.
 

You should read "Just Mercy."

But I don't see how this is responsive to my question. Are you saying that prosecutors who don't think they can get a conviction for all the wrong reasons even when he has tons of evidence should go ahead with the case because the defendant may be able to get the venue changed?

TM

Re: Tall white mansions and little shacks.
 

Agreed. And that’s why there should be electoral consequences for guessing wrong, down to the amount of budget you claim you need to file the cases that are uphill battles.

Re: Tall white mansions and little shacks.
 

That sounds reasonable.

Re: Tall white mansions and little shacks.
 

Then vote against the guy whose discretion you disagree with, or whose idea of what constitutes a "high-profile" case is different from yours. But to enshrine a rule that a prosecutor must file charges that he or she predicts will result in an acquittal is incredibly dystopian, but you can’t see that because you assume it’s a weapon that will only ever be pointed at the enemy. Funny thing about the criminal justice system: the more you empower it, the worse it gets for the people for whom it’s always been bad.

Re: Is Ted Cruz Satan? Discuss.
 

This wasn't directed to me, but (1) yes, it would be an ethical breach IMHO; and (2) what defendant would be so stupid as to file for change of venue when even the DA thinks acquittal is a sure bet?