Re: Tall white mansions and little shacks.
 

A weak case is not that same as false charges. Once again, you avoid the difficult questions and answer an easy one instead.

And it's not the inverse, it's exactly the same thing. You said:

Re: Is Ted Cruz Satan? Discuss.
 

I like how you changed the hypo to soften your point, but I think what you're saying is absolutely insane. There has to be some kind of thought to the balance between what the evidence shows and what you may know the jury will do.

Based on what you just said, prosecutors should ignore murder when they have a cut and dried case if the victim is one that the community refuses to value. You have a strange sense of justice.

If you live in Alabama and you can't get your white jury to convict a white man of murdering a black man, bring the case and at least force the fact finders and our system to violate the Constitution and carry out the injustice. Jesus fucking Christ.

TM

Re: Tall white mansions and little shacks.
 

I am struggling with your definition of ethics.

No. It's not based on a "particular kind of bad." It's based on the case you have. If you have an airtight case but live in the most racist county in the country, it's unethical for you to bring that case because the jury pool is full of assholes? What you're saying is absolutely next-level crazy.

TM

Re: Tall white mansions and little shacks.
 

I think the only one proposing any rules to be enshrined is you.

The rest of us are talking about what should be done in difficult circumstances.

Re: Is Ted Cruz Satan? Discuss.
 

What I was getting to is that if, because of governmental involvement, or particular notoriety, the defendant can't get a fair and impartial review, take it elsewhere. Do the same for a trial.

What I'm suggesting is that if there is a risk the prosecution will be less than impartial, take it our of their hands. I'm not saying it's a good solution, or even that it would work. Hence the tentative tone of my post.

Re: Tall white mansions and little shacks.
 

I am losing more and more respect for you by the post.

You put someone through a trial because the evidence warrants a fucking trial and both the defendant and the victim deserve the completion of the process and a decision. Absolutely no one is saying that you put the defendant through the trial as some form of punishment. It is part of our process when you commit (or are arrested for committing) a crime. Prosecutors should have a duty to go through with the entire process if the amount of evidence of guilt hits a certain level.

You are being an asshole because you're taking a principle that makes sense when you're talking about whether or not one has sufficient evidence and changing it to whether that evidence would be sufficient enough in the minds of unreasonable people. The "reasonable person" standard is there for this exact reason.

"I like to provoke conservatives and liberals." You're full of fucking shit. And this type of bullshit is what racist, homophobic, or sexist criminal assholes depend on. This whole conversation disgusts me.

TM

Re: Tall white mansions and little shacks.
 

If I didn't post it in the post you are responding to, I know I have said it elsewhere: take the whole process out of the "tainted" hands. (I use the quotation there not to suggest I mean the opposite, but because I am using it as a term of art). Presumably, if the review is impartial, it will reveal whether or not there is a case, and the decision to indict will be more favorably received.

I know, I know, Kenneth Starr. But nobody's going to spend Kenneth Starr money on a shooting resulting from two drunks fighting with each other.

Re: Tall white mansions and little shacks.
 

I wasn't saying "false" charges but rather weak charges. And, no, I was not suggesting that you would actually support such a decision.

I was suggesting that your view, that prosecutors should give consideration to whether a jurors are likely to ignore their oaths, is more closely related to that circumstance.

Re: Tall white mansions and little shacks.
 

Yeah, but to imply I mean a prosecutor could bring charges that even he or she himself believes are not supported by the evidence is not something you could reasonably infer from my position.

Re: Tall white mansions and little shacks.
 

"Should be," in the sense that we need to genetically engineer a better kind of citizen?

We could have a lot more democracy than we now do. All sorts of government decisions could be decided by an electronic referendum of anyone who cares to vote. I do not believe you think this would make for better policy, at least when you are not trolling liberals.

Re: Tall white mansions and little shacks.
 

Can you imagine how Atticus would react if zoning issues were all decided by referendum?

It'd be sort of fun to watch.

Re: Tall white mansions and little shacks.
 

Now that’s a discussion worth having. If a prosecutor ran for office saying he would only charge cases that a “reasonable” jury would convict on, but left out the part where he didn’t believe his jury venire consisted of reasonable people, and brought a bunch of charges where his juries kept acquitting, but “justice” was being served because “the process” was being respected, I think he’d avoid bar charges for sure, but it wouldn’t be a thing to be proud of.

I don’t get how someone with progressive principles thinks it’s good to have state agents who say “Well, at least we tried, and that’s something.” Again, I think everyone is fantasizing that we can change the rule so the exception only applies to hate crimes and (maybe) rape, but that is a fantasy. If a prosecutor is allowed, or Wonk and Adder say compelled, to bring charges that the prosecutor expects will result in acquittal, brace yourself for a shitload of point-making and a whole lot of misery for the historically victimized.

But I get that everyone here thinks we should have Cop Court where special rules apply and you’re prosecuted by a different person than the usual guy and you’re tried by a jury that is somehow less racist than the community in which the crime occurred. Try it. My guess is that it will be more excruciating to real justice than you might expect.

Re: Tall white mansions and little shacks.
 

You mean like in San Francisco? Yeah, it IS fun to watch.

Re: Tall white mansions and little shacks.
 

There is real estate between “I can prove every element to my satisfaction and I’m very reasonable” and “I can get 12 people chosen at random in my jurisdiction to agree that I have proved it beyond a reasonable doubt.” I’m saying the second is the better rubric in every single case for a decision to charge, and I want the people with the authority to bring criminal charges to use it in every case. I’m sure we vote similarly on all other issues; perhaps we would vote for different DAs.

It appears the only difference in our positions is whether a DA should account for the jury he will have rather than an imaginary one that is perfectly reasonable. The rubric you’re using is one that results in a lot more charges. I’m sorry this conversation disgusts you, but I find it weird that it does. These are ideas, after all.

Re: Tall white mansions and little shacks.
 

Arguably an area where we have too much democracy for everyone's good.

Re: Tall white mansions and little shacks.
 

Do you really see no daylight between a "weak" case and one that is not supported by the evidence?

Re: Tall white mansions and little shacks.
 

So, in drafting laws where we use the standard of what a reasonable person would or should do, we can apply the standard intelligently to create the law. But when it comes to determining whether to bring a case based on whether someone's actions have violated those standards, the prosecutor must just abandon a case because it's been brought in a jurisdiction filled with unreasonable people, and outright ignore the law and evidence because we shouldn't put the defendant through a trial?

I think you really think what you're saying makes sense and that we are all upset because we're liberals being hoisted by our own petards. But I don't really don't get it.

You are being disingenuous above when you say, 'There is real estate between “I can prove every element to my satisfaction and I’m very reasonable” and “I can get 12 people chosen at random in my jurisdiction to agree that I have proved it beyond a reasonable doubt.”' If a prosecutor can look at the evidence (eg., I have clear video of a white man walking into a church and shooting an 80 year old black minister in the face) and make the determination that he has an overwhelming amount of evidence to convict, then he absolutely has a duty to go to trial even if he sits in the most racist county in the country and he knows his jurors will completely ignore the law. If you want to talk about what amounts to sufficient evidence to get a conviction, that's a different story. But if there is no such thing because the jury refuses to consider it, what's the issue? That we shouldn't put a defendant through the ordeal of a trial? Fuck outta here.

What is this awful alternative you have in mind? That we are constantly bringing people to trial unnecessarily when the prosecutor knows he can't get a conviction? That this is somehow a form of punishment for the poor? Cops and prosecutors will get together and arrest, indict and try people with very little evidence to teach them a lesson?* That police officers will be put through a trial because victims deserve it even though we know we won't get a conviction? In what world are you living? From what perspective is not trying someone based on juries ignoring the law preferable to subjecting someone where the evidence most definitely indicates that he committed a crime to a trial? If we aren't going to apply the laws we have written based on whether the prosecutor thinks the jury likes the victim enough to convict, what's the point of having laws at all? Cops should just arrest someone, talk to a prosecutor, and then let the person go, depending on who their neighbors are. Better yet, let's just make all the prosecutors cops too. That will be even more efficient.

The reason why this conversation disgusts me is because your thinking is the type that empowers racist and homophobic murderers or rapists. It's what makes the system so distasteful and why it has been that way for so long.

By the way, this conversation is especially disturbing given your fucking moniker. You should change it immediately.

TM

*By the way, if this is your argument, you are being intentionally disingenuous because choosing to go to trial with little or factually insufficient evidence is completely different than putting someone through a trial with overwhelming evidence even though you know such evidence will be ignored. The fact that you're arguing that the latter is or could be a problem for our judicial system is laughable.

Re: Tall white mansions and little shacks.
 

Are you just not reading or something? Do you need a dictionary?

I know you think this is a fun way to score points, but how exactly would this work? The historically victimized are already being victimized by actually getting convicted in a law enforcement system that is designed to victimize them.

You think that given the discretion to bring cases supported by enough evidence to convince a reasonable jury that prosecutors would suddenly start bringing losing show-cases instead? What makes you think there are a ton of juries out there waiting to nullify in favor of the victimized?

I think we should have a cop prosecutor because the local one is inherently conflicted when a case of alleged cop wrongdoing comes up.

I actually don't think that's a special rule.

Re: Tall white mansions and little shacks.
 

All I want, at the end of the day, is never to have a prosecutor say to himself “We’re very unlikely to get a conviction, but let’s file anyway because the public deserves a trial.”

If instead we have a world where a prosecutor holds a press conference where s/he says “We knew it was a tough case, but we were convinced of the defendant’s guilt and we’re surprised the jury did what it did,” that’s the present condition and I wouldn’t tinker with it.

Does anyone want a prosecutor who brings more weak cases? Again, I’m surprised anyone would want that, and I reassert you can only claim to want that when you compartmentalize the cop cases, the race cases, and (possibly) certain sex crimes, but I’m reasonably certain that compartmentalization won’t last 30 seconds in reality, and will be net-terrible for civil rights. If that makes me history’s greatest monster, so be it.

Re: Tall white mansions and little shacks.
 

Both juries are imaginary when the prosecutor is making the charging decision. It's just that in your scenario, the prosecutor is supposed to make assumptions about the biases of the people randomly assigned to the jury.

An assumption of reasonableness sounds a hell of a lot better to me.

How you can claim your way is worse for the victimized is beyond me. Your way, they go to jail every time.

And just so we're clear, assumptions about credulity, intelligence, openness to particular kinds of charges or evidence, etc, may well be reasonable. But assumptions specifically about racial, class, religious or whatever bias only serve to reinforce those forms of bigotry.

Re: Tall white mansions and little shacks.
 

Framed that way, I understand and to a degree agree with that sentiment.

But I'm okay with, "We're very unlikely to get a conviction, but let's file anyway because the evidence is overwhelming and we would get a conviction if this county wasn't so racists that they will ignore it."

I don't think anyone has said anything to indicate they would.

Re: Tall white mansions and little shacks.
 

I'm not sure how I could be more clear that stating in virtually every post that I believe the whole process should be taken out of the hands of the related (in the politically symbiotic way) persons and run by an independent person. I have not always said, but I believe that another jurisdiction close enough to not be hard to get to and from for witnesses and juror, but not so close as to generate the response that Ferguson pulled off so beautifully. I know that in one of my last three posts I have specifically stated that, if the independent body or person decides there is no case, there should be no indictment.

But don't let what I actually say get in the way of your making a point.

Re: Tall white mansions and little shacks.
 

Exactly.

Exactly.

TM

Re: Tall white mansions and little shacks.
 

From a traditional liberal perspective. But hey, if the world has moved on to one where we trust prosecutors not to abuse their power with political point-scoring, but we DON’T trust juries because they are too frequently unreasonable in the number of ACQUITTALS they issue, then we really do seem to be living in different worlds. I see strong incentives for prosecutors to bring splashy charges with no prospect of conviction, and I don’t see a practical way to carve out cops without violating the Equal Protection Clause, so I'm unenthusiastic about encouraging prosecutors to bring charges they don’t think will result in conviction.

And BTW, my position “empowers” racists, rapists and other shitbags no more than the reasonable doubt standard or the requirement of unanimous juries, so if being in favor of people getting away with crimes when certain conditions aren’t met means I’ve empowered a bit of evil in the world, then I’m guilty. But that does not convince me we should do as you propose. I think those things hold back a greater evil, which is why we tolerate them. Or, at least, I do. Maybe someone out there thinks we should alter the standard of proof or have non-unanimous juries in special cases where there have been unjust acquittals. If so, I disagree with them, too.

Re: Tall white mansions and little shacks.
 

You are doing a clever dance. I don't think anyone has argued what you are pretending we are. What you are doing is taking a strong case and defining it as weak based on the unreasonable actions of any particular jury pool. No one here will argue that prosecutors should take a weak case, based on the evidence, to trial to prove a point or as a form of punishment. You know that. The danger of a flood of pointless trials that you are ascribing to that scenario does.not.exist when the evidence of a crime is overwhelming and the jury pool is completely unreasonable.

But it sure sounds like you wish it did.

TM

Re: Tall white mansions and little shacks.
 

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.

Re: Tall white mansions and little shacks.
 

I think those incentives are already in place and unchanged in the scenarios we're talking about.

I also don't see the traditionally victimized as the most likely targets of those scenarios (Sheriff Joe aside) nor do I think they aren't already getting charged and convicted on those weak cases already, perhaps in part because the "ethical" prosecutor is allowed to consider the fact that his county hates people from "Mexico."*


* El Salvador.

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?

And I think why they think they won't get a conviction matters.

Re: Tall white mansions and little shacks.
 

Maybe more price fixing cases, with more jail sentences, because he thinks it will help get the attention of others who otherwise may not think much about the illegality of the deal they reached with Mortimer on the back 9 after the annual trade association meeting?

Seems like I mighta read something about that kind of prosecutorial thinking once or twice.

Re: Tall white mansions and little shacks.
 

Good fucking grief.

In your world and the real world, prosecutors already have the ability to bring cases for political point-scoring reasons. We are not arguing about whether or not they should be able to do so. What we are arguing about is whether they should go through with a trial in cases where the evidence of criminality is overwhelming, but they don't think the jury pool of isolated, privileged, scared white people would convict a cop of anything, even murder. If the evidence is clear, you're worried about the political grandstanding? That's your issue? How about whether cops should be treated like everyone else by our officials and justice system? How about whether the victims are represented by the people? Why the fuck are you so concerned with grandstanding in the situation where the evidence is clear but the conviction might not be because the jury is made up of assholes? Please explain.

Bullshit. Cops and prosecutors work hand-in-hand. Having a different prosecutor handle cases where cops are the defendants is not a violation of the equal protection clause. You are absolutely full of shit.

Ha ha ha ha ha!

First correct thing you've said all day. Except the "certain conditions" part of that sentence is the PB board-equivalent of "yada yada yada."

Translation: "Hey! Look over there!" Stick and move. Stick and move.

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.

TM

Re: Tall white mansions and little shacks.
 

There are some prosecutorial decisions which can be expected to have a wider impact, and there are some that won't. I wasn't thinking about price-fixing, but I think a lot of companies and executives would be deterred by the threat of a trial, even followed by an acquittal.

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