How to Prosecute Abusive Prosecutors
nytimes.com
nytimes.com
That's an odd way to word that. It's essential not because there is more scrutiny, but because it's wrong to allow it to continue. Whether it's being looked at more often is a problem for those that are worried about their conduct, not those that are concerned that justice is not being done.
It's essential for both reasons. As you correctly point out, it's important to end abuses simply by virtue of the fact that they are abusive and illegal; but it is also important to end practices which bring the justice system into disrepute, since the very functioning of the justice system relies upon the trust which society places upon it.
This is a case where both the facts and the public perception thereof are important.
Not an end in itself, but I'd say it's a very important component in maintaining an ordered society.
Whether you consider that to be a worthwhile end may depend on your political leanings; I'm a Canadian, and where the US constitution exhorts the "blessings of liberty", ours speaks of "peace, order, and good government".
Are the police and prosecutors really focused and achieving the maintenance of an ordered society, or are they just keeping their jobs?
[1] http://www.cnn.com/2015/03/10/us/georgia-officer-fatal-shoot...
[2] too many citations to put here
There needs to be a systematic and reasoned standard way for people to have redress of grievances, which does not take things to excess.
Having this be handled by the government seems to be a reasonably good solution.
Having people handle things themselves isn't reasoned or systematic or standardized and does tend to excess, and is bad for everyone. As tends to be demonstrated fairly clearly every time it happens.
If the current system of having the government handle this collapses or loses people's trust -- assuming this isn't due to some better system being implemented -- it would only leave people to handle things however they feel, and would be rather harmful.
Its basically an alternate way of saying the police must be clean. Sadly, some politicians forget that in order to respect police we need to see them as non-corrupt. They just expect blind trust.
This is not to say that trust causes lower crime rates, but when agents of the government behave in ways that break trust and jeopardize the legitimacy of their station, the public is less willing to cooperate and more likely to operate outside of the system of law. Therefore, what is essential is that law enforcement act in ways that preserves trust, especially when the eyes of the nation are upon them. Trust and government behaviour form a feedback loop, such that if either one is maligned, it can disturb the stability of the entire system.
I agree citizens are what matter, and that no government agency should be legitimized merely by its own existence. However, I do believe that the enforcement of the law leads to more optimal societal configurations than the Nash equilibrium. I'm not arguing for the preservation of a corrupt and self-serving government agency, I'm arguing that an institution which behaves in a manner that the public can trust will lead to greater utility for society.
If public trust is an important part of effective and good governance, it's important to combat the efforts to destroy it, especially if we're talking about some statistically insignificant infractions being blown by journalists out of proportion, like it seems to be e.g. with the police brutality issue in the US.
There is evil in all of us, I'm sure, and there those who allow themselves to be consumed by it. When I read these words, it's hard for me to see a person but instead, a monster.
> William Roper: So, now you give the Devil the benefit of law!
> Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
> William Roper: Yes, I'd cut down every law in England to do that!
> Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
-- A Man for All Seasons, 1966.The chart in this post shows the relationship between court outcomes and time since the judge last ate (tho it is from Israel). http://blogs.discovermagazine.com/notrocketscience/2011/04/1...
Scary.
But I do believe solving this would be an important victory for rule of law, giving wrongfully-prosecuted citizens a viable legal path for redress of grievance. Just off the top of my head, I would say that the worst penalty anybody should have for not doing their job properly is to lose that job, and that the system should be set up to properly train them and to absorb the costs of someone screwing up. Any other kind of work environment is abusive. So limiting liability to civil damages paid out by the government in malicious prosecution cases makes sense to me. Much as I want to clap these assholes in irons and make them serve alongside the people they wrongfully convicted, I don't think that's objectively the right move here.
Ordinarily, mens rea is necessary for any kind of criminal liability. Mens rea comes in a bunch of different flavors, and different crimes are committed depending on the flavor. For example, if you kill someone, it is murder if you purposefully killed them, but could be manslaughter if you were merely reckless.
So, you can prosecute a prosecutor who knowingly withholds forensic evidence, and the prosecutor next door who is reckless and throws evidence out will just lose his job. You even have to establish beyond a reasonable doubt that the prosecutor was knowingly withholding forensic evidence. That is how criminal law ordinarily works.
That way the thuggish ones will price themselves out of the business.
So of course elected prosecutors will rabidly go after any easy case that comes their way, justice be damned.
Law of unintended consequences at work again.
> As for having an attorney, yes, the U.S. Supreme Court ruled in 1963 that defendants have a right to one but the debate about just when the right-to-counsel “attaches” continues to evolve. While the U.S. Supreme Court ruled in a 2008 case, Rothgery v Gillespie, that the accused are entitled to an attorney at every “critical stage” of the process, it did not clearly define what constituted a “critical stage.”
> Most places have interpreted this to mean at the initial bail hearing. But not Mississippi.
It doesn't seem to be entirely a case of a renegade judge ignoring a well-settled Constitutional right.
What if it were for you personally? A year of your life? Would you calmly agree that it's not a well settled constitutional right and happily wait it out?
There are a lot of shitty state governments trying to read stuff like Roe v. Wade out of existence. Singling out one particular judge who happened to make stupid comments in an interview won't change those policies. That has to happen at the state level.
The issues are far worse than this one judge of course, they are widespread as the article states but it's very nice to have an example of the thought process and behavior of some of these people for those of who haven't encountered the criminal justice system before or aren't trained in law.
Too bad, but starting with the destruction of the careers of people who should have exercised discretion may be what has to happen when the system is unresponsive. Too bad about whether it should be a matter for the people of that state. They don't get to run a legal swamp in isolation.
Arguably they should get to do that, if that's what the people want. After all, framers never intended for the federal government to impose uniform standards on state justice systems.
Technically correct, but you have to ignore the XIIIth and XIVth to make that relevant to today.
But, yeah, Reconstruction and subsequent events shaped those Amendments.
It's one reason that I'll be voting for Trump in 2016.
I'm a liberal; he's the most opposite of everything that I believe in. But, he's also going to be the one to take the whole system down, one way or another.
When the OS doesn't respond to a signal, time for a hard reboot.
Or, how to burn a house down to kill a spider.
Listen: if he's the most opposite of everything you believe in, voting for him is the stupidest idea you could have. Trump won't bring about much change; he's benefited from The System all his life! How many times has he declared bankruptcy?
The best chance for real change, which doesn't involve torching the house, is Bernie Sanders.
My girlfriend had ended up in the behavioral health wing of the hospital emergency room when she decided to quit methadone cold-turkey, without any medical support for the withdrawal. When they wouldn't let her go after she'd come to her senses, I went to the courts and obtained an order that the hospital release her. The hospital staff, acting on incorrect legal advice from their staff attorney (who decided to not attend my court hearing), didn't want to hear about the court's order.
I went to the area of my girlfriend's room. The windows are one-way mirrors, but she saw me and started tapping gleefully. I showed her the court order, and did a little dance while waiting for the police to arrive.
Then the entire security staff showed up to deal with me. The "old man" security guard freaked out when I took out my camera-phone to take selfies to document the situation, and tried to remove my phone from my hands. I backed away while trying to switch my phone to video mode...
The wanna-be-cop escalated the fight. Three or four of them wrestled me to the ground while trying to remove my phone from my hands. Eventually I was over-powered and handcuffed. The security guards finally managed to pry my phone from my handcuffed hands. It dropped to the concrete a few feet away, and I got a good view of a boot stomping down to break the screen.
The police officer I'd called for showed up shortly thereafter, but it was six hospital security guards vs. me. The police officer and his superior called the superior court to verify that the case number on my court order was genuine, but it didn't matter. My arresting officer was almost apologetic for taking their side. At the booking area, the officer took pictures of my scuffs and bruises, and of my phone's broken screen (apparently this is much more than is done for most who are arrested).
As I was taking my concrete nap, I thought to contact a facebook-friend who went to Harvard Law School & ask him if he had anyone to recommend. I was released on my own recognizance after spending the night in the city jail's holding cell. The next day I dropped $1000 on a retainer, which isn't much lawyer-time at all, but it's all I had. He's been very helpful in helping me navigate the legal system.
When I got the police report a month later, I learned that the security guard told the police that I'd dropped my phone and hit him 3 times when he went to retrieve it. My video is quite brief, but strongly suggests that the security guard was not at all truthful with his statements that got me arrested for assault.
The next court date was a pretrial conference, about 3 weeks later. The city prosecutor offered a "disorderly conduct" plea. I signed up for a public defender, who I met after another month. He used to work for that hospital, a long time ago. He said something that was informative, but which greatly irritated me, so I borrowed a few thousand dollars from family for a private attorney.
This is going to take a while.
It is very hard to protect people from the system. If you ever find yourself getting caught up in something where the police might get involved, remember that video is much more valuable than photos... (There was a recent story about someone who was vindicated by photos/videos which were automatically-uploaded from his phone which went missing after an police altercation).
Everyone at the hospital thought their behavior was justified. My brother said something about the foolishness of getting in an altercation with $10/hour security guards.
Eventually their insurance company is probably going to intervene to help rewrite their policies & procedures.
Sadly, that's the entity that actually has the power to force these institutions to stop doing dumb things.
I think the answer is simply that we've always been here and you're just coming to realize the truth and justice propaganda was bullshit all along.
"We've always been here" is also false in the sense that, of course, things used to be quite a lot worse everywhere, and that the current rule of law in many countries today would be considered utopian by the people who died in worse periods of human history.
Which point of view is more beneficial for society to embrace?
Hands down, I think it's "truth and justice propaganda was BS." It's in society's best interests to watch everyone with power like a hawk.
Which while absolutely true, makes it no less corrupt. Better doesn't mean good. Less corrupt than before is still corrupt.
> It's in society's best interests to watch everyone with power like a hawk.
More importantly, that that power be continually forced to justify itself else the power be removed.
"The goal of the preservation letter is, of course, to remind opponents to preserve evidence, to be sure the evidence doesn’t disappear." - http://www.craigball.com/perfect%20preservation%20letter.pdf
It reminds me of this story written by a startup founder who got a bit beat up and jailed by idiot cops for no good reason: https://human.parts/good-samaritan-backfire-9f53ef6a1c10#.jv...
"Once within the system, resistance is futile. I couldn’t help but recall a wise criminal lawyer’s (and friend’s) remarks: “Extricate yourself from the system, don’t try to vindicate yourself within it.”"
Is it possible to figure out, from court proceedings, when such a thing happens? I'm wondering if a "search engine" could be built, that trawls PACER reports and digs up cases where poor people are being sent to jail for small amounts of money. I'd be willing to chip in a little bit of money into a Kiva-style pool, from which the poor can tap the money and repay it later.
The father (the one who is charged) is well-connected politically in town and has a long-standing family history, whereas my sister's family has not lived in the area as long. The father has "good buddies" in the sheriff's office, and has even pulled strings to get free or nearly free legal representation, while my sister and I are struggling to afford astronomical costs.
In the civil parenting time case that resulted from this, virtually any time there is an issue that could go either way, we get stuck paying for it. For example, if the criminal case itself creates a date conflict that requires a civil hearing to be rescheduled, the father and his attorney will push the issue as far as they can, unto the point where we just have to pay our attorney to write up a full motion for continuance, when it's not our issue causing the rescheduling or anything.
So far, the judges and prosecutors have gone far, far out of their way to avoid placing strict penalties or punishments on this person, even so much so that it becomes the victim's (my sister's) financial burden just to see that minimal justice is preserved and that a somewhat morally congruent result is achieved.
So it bugs me that people want to jump on a bandwagon of counter-intuitive support for the side of those who are charged or accused -- there are many places where people go out of their way to be lenient towards people who truly do deserve more severe penalties, and this is often at the expense of regular citizens who have done nothing wrong.
1. Don't become outraged about the legal system based on news articles...keep in mind for each and every judge/prosecutor who does something wrong, there is a lawyer on the other side who has discovered the wrong and brought it to light
2. In general don't expect the government to fix systemic problems, and specifically, problems within the justice system (prosecutors, judges, public defenders)
3. If you are truely outraged (which should occur only when you have personal knowledge a wrong took place):
A. File a bar complaint (a disbarred judge/prosecutor will never again have the chance to do wrong);
B. Go on avvo/Martindale and publically rate them.
Disagree completely. Public outrage at non-personal wrongs is very important for the wrongs to eventually be remedied. It's a good thing. Without this, wrongs can be committed and as long as the numbers are fairly low and the people powerless enough, no one does anything about it.
That aside, people generally get too outraged at things they shouldn't and not outraged enough at things they should.
Otherwise, could you give me a single example when it is ok to be outraged about some wrong when you don't know if that wrong even happened? Without an example, to me that is the equivalent of saying guilty until proved innocent, or shot first and ask questions later.
As far as shoot first ask questions later... yep. This is exactly what seems to happen much of the time. The US is bad enough in this regard but from my limited understanding there are worse places. I see videos of outraged mobs in the street in the Mideast for instance based on rumors someone may have said something against Islam or in Africa burning suspected witches.
To your point (as I understand it) I guess I have to agree.. it is far too easy to get people riled up on rumor and this causes problems.
And it would appear Judge Gordon:
1. Is shooting first asking questions later (not appointing counsel before indictments),
2. Seemly made disgusting comments about the nature of the criminal system.
Not supporting the judge and what he did/said, but:
1. The law of the jurisdiction may not require the appointment of a lawyer prior to indictment (in other words, the judge was sworn to uphold the constitution and did not violate it, even though some/maybe a majority want greater safeguards).
2. Looking at the Judges comments they appear disgusting, but more of a description or a matter of fact telling of the way the system works, but not necessarily the Judge supporting the way it works (many of us may do our job as required even though we think it's not the best way)
3. The individual was not appointed counsel and this individual sat in jail for a year without bond (n=1). This is a judge who has been on the bench ~30 years, so in this instance personal knowledge would be the facts of this case (either the defendant was shown to be a danger to the community or a flight risk) and to a greater degree more insightful statistics (how many people with lawyers vs those without lawyers did not recieve bond). May be statistics would show defendants with lawyers are denied bond at a hire rate in front of Judge Gordon than those would could not afford one and were not appointed one.
2) This is the very definition of the job of the government. Why should we not expect this. You are simply telling us to stop trying to make things better; not acceptable.
3) No, we don't need to wait to be outraged until we are the targets of the justice system. This is truly terrible advice. We should be outraged when anyone is wronged because it could just as well be us next, not wait until it's too late.
4) A bar complaint and banning the person from ever practicing law again sounds like a good start (honestly how many prosecutors are disbarred in circumstances of abuse? The article discusses remedies and bar complaints are not the methods professional rights advocates are choosing to use. You need to tell us why before recommending them) but realistically these people should be in prison.
This is the type of outrage without fact I am speaking of, please give me a citation. You are essentially alleging a nationwide conspiracy between prosecutors, defense attorneys and judges. You can take all the victim-less criminal defendants (i.e. drug charges) and the generally accepted % of false convictions out of prison and an overwhelming majority remain in prison. US crime statistics are obscene, a sexual assualt every 2 minute (>200k/year), 2 murders every hour (less than 65% ever solved). No doubt there instances of good-faith errors and worse corruption (violation of rights, withheld/destroyed evidence), but outrage and made up statistics don't make for change, understanding of the problems and ideas/plans do. Lets say you come up with a scientific/technological way to minimize potential false convictions (e.g. DNA), the system is already set up to allow such things.
>because someone doesn't decide to be a hero and potentially sacrifice their career and working relationship with prosecutors and judges to be a whistleblower.
I'm a lawyer and regularly conclude officers are "lying" with that exact word in court and I have filed a Motion for Fraud Upon the Court against a Supervising Assistant State Attorney in a County I regularly practice. Believe it or not, most lawyers probably got into law to help people, and recognize their career would be more jeopardized not doing a good job for their client rather than ruffling the feathers of a judge or some prosecutor.
>This is the very definition of the job of the government. Why should we not expect this. You are simply telling us to stop trying to make things better; not acceptable.
Government pays for the justice system but it does not regulate the practice of law. Think Bill Clinton lying under oath, that is perjury a criminal offense. Yet no charges filed/no impeachment...but you better believe the sitting President got disbarred even though his lie had nothing to do with the practice of law and he was likely never going to practice again anyway. Bars are the equivalent of internet mob justice, they will take your ass down, they protect the profession not the lawyers.
>We should be outraged when anyone is wronged
Not what I said, rather before being outraged on should have knowledge a wrong actually occurred. Tell me when is it ok to be outraged over something that actually did not happen? That is basically what the article is saying Judge Gordon did. Again n=1, and while Judge Gordon did/does not appoint counsel pre-indictment, is that a wrong? My point is even if the defendant was appointed counsel pre-indictment, it is certainly conceivable the Judge would have properly denied bond, and done so properly...I only suggest people discover the facts before being outraged and believing if a lawyer was appoint bond was guaranteed or even more likely. I would be willing to bet that in ~30 years on the bench the Judge has permitted bond to many defendants who subsequently commit new crimes while out on bond...and guess what there will be equal outrage from victims of those crimes against the Judge too, but again the numbers would show overall the courts get it right a majority of the time.
>but realistically these people should be in prison.
I think that is a fair suggestion; however, that is the premises of the article, that despite the public's general understanding of immunity, judges/prosecutors can and have been criminally/civilly liable.
People don't know if evidence is suppressed by the prosecution until much later, a journalist digs deep and finds out. We have evidence that journalists are able to do this in many cases. It is not a logical leap to assume there are many more undiscovered cases, it is a logical fallacy to assume otherwise.
We are allowed to be outraged about (in fact should be outraged about), yes, even one case. This judge as quoted is completely disgusting. Publicly stating anyone accused of a crime has no rights as a judge and then proceeding to take them away is not even close to comparable to following the law and letting people free on bond and having them commit crimes. One is an unfortunate aftereffect of having a justice system that does not simply execute everyone, one is the wholesale destruction of the rule of law and every protection citizens have. It's worrying to me that you would even draw that equivalence for the purpose of argument.
Not long ago there was a story about a head prosecutor in Louisiana who was a member of the KKK and was quoted as saying something to the effect of 'God wants me to punish black people, my only regrets are that the black people I executed didn't suffer more' who unsurprisingly fabricates evidence constantly. What is troubling and telling is that you as a lawyer are not horrified by this and instead say "well, n=1 so who cares, show me another, at which point I'll say n=2, and we can play this game until we get to n=10000, and then I'll say 'it's just some bad apples'".