Scalia Redux

We are not Scalia haters here at Lawyers on Strike.  Far from it.  We’re actually pretty agreeable to much of what you might call his world-view.

But we part company in some serious ways.  Very serious.  And, him being wrong in that regard and all, we’ve been forced to conclude that he’s done a lot of damage to the law, and to the country.

By way of illustration, let us run a little further with that Scalia quote from yesterday, about how we can’t bother with “actual innocence” because wow much limited resources.  This thought suffers from appalling empirical deficiencies, in addition to the fatal axiomatic flaw we pointed out yesterday.

In other words, it’s a stunningly ignorant thought, in addition to being logically and morally disordered.  Nino literally has no clue as to what he is talking about, even as he upends centuries of axiomatic western tradition in taking the position that actual innocence is not a big enough deal to command any attention or effort.

Now, in the past (such as here) we have alluded to some statistics, more or less unarguable because they come from the Department of Justice and properly interpreted are not flattering to the Department of Justice.  Or us, as a society if you will.  Statements against interest, in other words.  Much reliable.

We know many of you are not keen on clicking on our links, because wordpress tells us very few of you ever do and we are sometimes annoyed since way much trouble to insert them.  Nevertheless, we’ll indulge you just this once and reproduce here what we wrote almost four years ago:

In 2006, there were about 1.1 million felony convictions nationwide in state courts alone.  There were 14.4 million arrests.  DOJ BJS Statistical Tables 2006, NCJ 226846

In that same year there were – at most – 18,000 constitutional civil rights complaints filed in federal courts stemming from state and federal enforcement of criminal laws, excluding prisoner petitions.  NCJ 222989 I exclude prisoner petitions not because they significantly alter the statistical ratios, but because the comparison is more apt when only those civil rights claims from people who have something to do other than sit in a prison cell are considered, and also because non-prisoner petitions are more likely to involve a Plaintiff who has been genuinely wronged, even by the government’s own estimation.

Let’s put these statistics in context.  In 2006 the number of civil rights complaints was less than 2% of the state felony convictions in the same year.  But the fairer comparison would be to the number of arrests, which are more closely analogous to the filing of a complaint in the civil setting.  That ratio would be 18,000 over 14.4 million – more like 1/10th of 1%.

But it gets worse.  If historical ratios hold, something less than one-third of the civil rights complaints that are filed will meet any significant degree of success.  Two-thirds will be dismissed at the complaint stage or upon “summary judgment” – a remedy, by the way, that is widely available and granted to defendants in civil cases but not defendants in criminal cases, 7th amendment considerations be damned.

Thus, of the 18,000 civil rights complaints filed in 2006 stemming from state and federal enforcement of criminal laws, something less than 6,000 will attain any degree of success.  NCJ 222989 Thus, based on these statistics, the incidence of valid claims of constitutional civil rights violations in the constitutionally laden area of criminal law enforcement is 6,000 over 14.4 million.

This is considerably less than one-tenth of one percent; in other words, a statistically almost insignificant amount.  It would be fair to just call it zero violations of civil rights in the United States stemming from criminal law enforcement.

These ratios are substantially confirmed by an entirely distinct set of statistics comparing the 2006 nationwide government “direct expenditures” on all law enforcement functions at the federal, state and local level – $214 billion (NCJ 224394) – and the collective median awards for the successful civil rights actions stemming from law enforcement activities for the same year, which could not have exceeded 6,000 at $100,000 a piece for a total of not more than $600 million.

In other words, the awards for civil rights violation stemming from criminal law enforcement could not have exceeded one-quarter of 1% of the expenditures on law enforcement, and were likely considerably less.

In that post our focus was civil rights actions brought in federal courts.  For reasons that aren’t important to delve into in any detail here, federal habeas corpus litigation – where the “actual innocence” controversy* takes place – has a lot of similarity to federal civil rights litigation, both conceptually and, unfortunately, statistically.

Let us quote from one of the few studies on federal habeas corpus for non-capital cases since the enactment of the AEDPA in 1996**, based on sample cases from 2007:

By December of 2011, only 12 of the 2384 study cases were still pending in the district courts, and petitioners had received some sort of favorable decision from the district courts in a total of 14 cases.

14 out of 2384 equates to about 6/10ths of 1 percent.  This again is a statistically insignificant number.  It’s fair to say, in other words, that the remedy of federal habeas corpus for state prisoners in non-capital cases has ceased to exist as a practical matter.

Now let’s go back to 1998’s Bousley dissent by Nino.  Given the statistical certainties in the time since of which we are now aware, does he appear to be in the grip of some kind of arm-waving, near psychotic hysteria?  Oh, yes:

Second, the Court has given as one of its justifications for the super-generous miscarriage-of-justice exception to inexcusable default, “the fact that habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare.”…That may be true enough of petitions challenging jury convictions; it assuredly will not be true of petitions challenging the “voluntariness” of guilty pleas….

To the undeniable fact that the claim of “actual innocence” is much more likely to be available in guilty-plea cases than in jury-trial cases, there must be added the further undeniable fact that guilty-plea cases are very much more numerous than jury-trial cases. Last year, 51,647 of the 55,648 defendants convicted and sentenced in federal court (or nearly 93 percent) pleaded guilty. Administrative Office of the United States Courts, L. Mecham, Judicial Business of the United States Courts: 1997 Report of the Director 214.

When all these factors are taken into account, it could not be clearer that the premise for our adoption … of the super-generous “miscarriage of justice” exception to normal finality rules—viz., that the cases in which defendants seek to invoke the exception would be “extremely rare”—is simply not true when the exception is extended to guilty pleas. To the contrary, the cases will be extremely frequent, placing upon the criminal-justice system a burden it will be unable to bear—especially in light of the fact, discussed earlier, that on remand the habeas trial court will not have any trial record on the basis of which to make the “actual innocence” determination.

Not only does the disposition agreed upon today overload the criminal-justice system; it makes relief available where equity demands that relief be denied. When a defendant pleads guilty, he waives his right to have a jury make the requisite findings of guilt—typically in exchange for a lighter sentence or reduced charges.

Yes, our “super-generous miscarriage of justice exception” results in a 6/10ths of 1% success rate for non-capital state habeas petitioners, and the remedy itself has essentially disappeared.

Good call, Nino.

Our cup runneth over.   Nino lives on a different planet from the one he’s administering and he hasn’t even been watching through a telescope since the 1980’s.***

And, under what conception of “equity” does equity deny relief to a person who is actually innocent, simply because they pleaded guilty in exchange for lesser punishment?  Jesus Christ, Nino.  We’re not supposed to be punishing the actually innocent at all.

And finally, Nino, why all the selective hand wringing over supposedly finite resources?  When expenditures on law enforcement and prisons nearly tripled in the 20 year period between 1982 and 2002 you weren’t worried about finite resources then.  Beyond that, do you have any idea of the sheer magnitude of resources that are spent by the Department of Defense just to put a bomb on a target, in terms of construction of delivery systems (ships, aircraft, etc.), weapons procurement from Lockheed Martin or some such, recruitment and training of personnel, and I can’t even begin to count what else?

And forget government expenditures.  Just look at all the resources thrown at the NFL to play a game, for Chrissakes.

Even Kim Kardashian’s butt appears to be a huge resource attracting phenomenon:



Doesn’t it seem more than a ridiculous position for you to take, then, that we just can’t devote “unlimited resources”***** to making sure we don’t wrongfully convict and punish people, especially when even according to Justice Rehnquist – no bleeding heart he – “…the central purpose of any system of criminal justice is to convict the guilty and free the innocent.”  Talk about inexcusable.  Defaulting on the one and only thing you absolutely have an obligation not to default on, and then rationalizing it.  Because “resources”.  This is a quasi-criminal outlook.

And now, having advanced for decades a hugely distorted, apparently maliciously false and borderline malevolent view of the matter of actual innocence, Nino is busy rationalizing how federal courts have nothing to say about the federal government engaging in torture.

Ugh.  Time to retire, Nino.  Your moment has passed.


*  Obviously, there should be nothing “controversial” about giving relief to those who are actually innocent.

**  The Bureau of Justice Statistics hasn’t published any statistics on non-capital state habeas cases in federal courts since 1995 – prior to the passage of the AEDPA.  In view of the negligible statistical utility of the remedy it is hard to argue that any significant resources should be spent on finding out how it’s working; but then maybe this is another illustration of the same problem.

*** Received Washington DC wisdom in 1984 was that there had been “explosion” of federal habeas corpus cases from state prisoners over the previous 20 year period (see here, for example).  Note well, however, that however many petitions there may have been, the success rate was still dismal – about 1.8%.  Of course that is 3 times higher than today’s rate.  Perhaps this accounts for Nino’s impression that we are “super-generous” with federal habeas corpus relief in the US, because 1.8% crosses the threshold of being statistically meaningful.

In any case, the concern about too many federal habeas filings may well have been legitimate in 1984.  Up to a point.  The problem we are looking at here, however, is that in the intervening 30 years Justice Scalia continues to hold an antipathy to federal habeas corpus long after the earth has shifted.

****  It’s a slightly censored version, of course, because we’re a bit prudish at Lawyers on Strike.  Sometimes.  The point is, that somehow when Nino says we don’t have the resources to free innocent people we’ve wrongfully convicted, imprisoned and ruined, my mind wanders to Kim Kardashian’s butt.  It’s some kind of 21st century reflex.  Maybe she really did break the internet.

*****  And what the hell is this “unlimited” resources idea anyway?  We incarcerate a lot of people, way too many, but it’s still less than 1% of the general population.  To make sure that 1% doesn’t contain people who shouldn’t be incarcerated at all can’t possibly command “unlimited” resources, even if every single one of them are contested.  The resources required, in other words, are absolutely “limited” by the number of people we incarcerate in the first place.  The whole “resources” argument is founded a fatuous postulate.

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A Take On Our Profession

..from an observer.  Puts some gloss on our previous post:

At the same time, Columbia is a scrupulously politically correct institution, one that wrings its hands over racial injustice. Back-to-back no-bills in two high-profile police homicides involving white officers and black decedents is a perfect scapegoating opportunity. It allows students and administrators alike to save face by blaming students’ academic difficulties on their exposure to disturbing news stories rather than on the intractable awfulness of Ivy League law and its practitioners. It allows them to avoid stating the awful truths that their institution is a crazymaking racket, that the study and practice of law drives people out of their minds, that the law has been overrun by high-hat aristocrats and cutthroat social climbers, that equity has been purged from the system and they don’t know what to do about it, that the whole goddamn thing is pervasively fucked up but they don’t see any alternatives to trying to make a go of it.

It all relates to a recent flap about Columbia Law School doing something or other about exams due to the trauma caused to their students by the Ferguson and Eric Garner episodes.  Judge Kopf had his standard breezy and dismissive take on it all here, for example.  In this case probably appropriate, but then who am I to second guess Columbia Law School?

It doesn’t help matters to punt.

I am reminded of a quote from Scalia that I’ll look up later*, to the effect that there are limits to the resources a society can devote to criminal justice and so, you know, finality.  I’ve pondered that quite a bit.  Seventy-five years ago, I think, such a statement coming from a Supreme Court Justice would have been seen as not just wrong but monstrous.  And the simple reason is this:  it’s an inversion of the truth.  Economic considerations do not constrain the law; the law constrains economic considerations.  If we don’t realize that as a society we are become barbaric, as they say.

But when lawyers and judges and even Supreme Court Justices don’t realize it we are doomed.

I have to disagree with Andrew a little:  it’s not difficult to figure out what to do about our fucked up profession.  It’s just difficult to actually do it.


That wasn’t hard, so I just looked it up more or less now.  From Bousley v. United States, 523 US 614 (1998):

It would be marvellously inspiring to be able to boast that we have a criminal-justice system in which a claim of “actual innocence” will always be heard, no matter how late it is brought forward, and no matter how much the failure to bring it forward at the proper time is the defendant’s own fault. But of course we do not have such a system, and no society unwilling to devote unlimited resources to repetitive criminal litigation ever could. The “actual innocence” exception this Court has invoked to overcome inexcusable procedural default in cases decided by a jury “seeks to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case.” Schlup, 513 U.S., at 324. Since the balance struck there simply does not obtain in the guilty-plea context, today’s decision is not a logical extension of Schlup, and it is a grave mistake. For these reasons, I respectfully dissent.

By way of a little explanation, there is a fairly recent doctrine in federal habeas corpus law that a claim of “actual innocence” will clear a bunch of hurdles that would otherwise bar relief, most recently the rather onerous hurdle of a one year “statute of limitations” (See McQuiggin v. Perkins).  But actual innocence has not been ruled to be a “stand alone” ground for relief; at this point, it just clears some debris so that a constitutional violation will be considered and summarily denied – just kidding, they will grant one in a thousand or so.

But on the other hand, it has never been held that actual innocence is not a stand alone ground, either.  Because embarrassing.  Legal doctrine speaking, we are in actual innocence limbo in federal habeas corpus law.

Scalia’s point is that we’re no more likely to get it right later than we were the first time.  And that’s probably true much of the time.  But it’s also completely beside the point, because no one’s going to do anything unless we pretty much know that we got it wrong the first time, so the whole subject under discussion is those times, not the other times Scalia is talking about.  Agnosticism about what is true or isn’t true is fine where we in fact (dare I say truly?) don’t know; but where we do know it’s dishonest.  Or obstinate.  Or stupid.  I mean, take your pick but none of the alternatives are good.



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Truth Redux Redux

A good read in the NY Times for SHG.

AndJudge Kopf.

The dogmatic denial that there is any such thing as truth is an intellectual fad/luxury that is only tenable when it isn’t official policy.  When it becomes official policy – that is, when you gentlemen have your way – it is invariably an Orwellian nightmare.

And it’s an intellectually lazy way to look at things.  Mostly self-serving, too.

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The Echo Chamber

Very good title.  Wish I could think of titles like that.

Anyway, the subject is the Supreme Court and the lawyers that argue before it.  Turns out it’s a very insular group, much white, much government, much corporate, which should not be a surprise to anyone who has been paying attention.

I might have more to say about this later.  It’s not only an interesting subject, it’s what some people would call “impactful” which is a word that gets tossed around that I never use because, well, it isn’t a word or something.

The idea, at any rate, is that this phenomenon affects the law in profound ways that I’m sure even the participants themselves do not realize.  Or maybe they don’t want to realize it.  Because if they did realize it they would want to see it changed, and since they are apparently the only group that matters if they wanted to change it they could.  So there’s at least one advantage to essentially having a monopoly and being a small, insular group.

Once again, just today, we glimpse two-tiered justice from top to bottom and this, of course is the top.

It explains a lot.

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Empty Posturing

That’s all the Michael Brown and Eric Garner tragedies mean to our officials.

That, and a photo op.

At one time I had high hopes for Attorney General Schneiderman, and thought that maybe we were returning to a more principled and even handed view of the law at the highest level in the state.  Like I imagined things were under Bob Abrams.


“It is time to acknowledge that the public has lost confidence in this part of our criminal justice system,” Schneiderman said at a news conference today.

Of course, it’s way, way past time.   And, you know, “this part”?  Like everything else in the criminal justice system is humming along just fine?

Yet the reaction from a couple of District Attorneys would be laughable if the situation wasn’t so serious:

Brooklyn D.A. Ken Thompson said he is “adamantly opposed.”

“Local prosecutors who are elected to enforce the laws in those communities should not be robbed of their ability to faithfully and fairly do so in cases where police officers shoot, kill or injure someone unjustly,” Thompson said in a statement. “The people of Brooklyn have voted for their district attorney to keep them safe from all crimes, including those of police brutality.”

Nice appeal to irrational fear there, Ken.  The District Attorney isn’t elected to keep anyone “safe” from crime, to say nothing of “all crimes”.  The death of a man for selling some loose cigarettes is not a campaign sloganeering opportunity, but that’s what Mr. Thompson apparently thinks it is.

Then of course one of the police organizations has to weigh in:  some “Benevolent Association” or other:

Patrick J. Lynch, president of the Patrolmen’s Benevolent Association, also opposed the proposal.

“There is absolutely no reason to alter the existing system because if the rule of law and rule of evidence as they stand in the State of New York are followed dispassionately and honestly, then the outcome will be right and just regardless of what office handles a case,” Lynch said.

God what a revealing quote.  The office handling the case won’t matter, because of course the police will have it right at the beginning and nothing should change from there.  In other words, the “rule of law” and “the rule of evidence” being “followed dispassionately and honestly” is what the police do in the first place.  Anything after that is dispensable.  And there’s “absolutely no reason” to change anything.  The police run everything.  What’s not to like?


This tawdry display of politics and power from one man that should know better (the AG) and others not refined enough to appreciate the significance of the Ferguson moment we are in is a perfect illustration of how dysfunctional the system is.  And how terminally resistant to correction:  how much civil unrest to we need before unserious reactions like this are seen for what they are before they get aired?

Ugh again.

And finally, please take note of one more important thing, this one an omission:  why does ABC news in their article feel no need to quote a private attorney of the criminal defense variety, or for that matter even a public defender?  The criminal defense bar is invisible, powerless and irrelevant.  And they have brought this on themselves.  And their country.

Thrice ugh.

The march towards widespread civil unrest proceeds apace.  There are a few speed bumps along the way, at best.  The justice system and in particular the legal profession are incapable of fulfilling their proper role and show no signs of having even the slightest awareness of their ongoing failure.

If we don’t clean up our act, and soon, there might be alternatives.  But they’re pretty ugly:

At this point the cops’ leadership isn’t doing the cop any favors, straining to stick to a false narrative while the consequences fall on the street cop.

87,000 views on that video in just a few days.  Let’s face it, we might be doomed.

UpdateThis may seem unrelated, but it isn’t.  There’s no reason for the appellate court to overturn that verdict, but they do it all the time, and they did it here.  And it was unanimous.

Taibbi has it right, and this is another example of a two-tiered justice system.  It can’t go on like this much longer.  At least, I don’t think so.

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Fabricating Ferguson

Sometimes, cops and/or prosecutors fabricate evidence.  And I’m glad they do.  Simple, out and out lying can be very difficult or even impossible to expose, but when amateur fiction writers – and that’s what cops and prosecutors are when they fabricate evidence – make things up they are liable to screw up, revealing themselves as evidence fabricators and, you know, bad fiction writers.

Like say I’m writing a novel today but set in the 1920’s and I have a scene where some characters are having a conversation and one of the characters mentions the Japanese attack on Pearl Harbor, or the Kennedy assassination.


So apparently this “diary” mysteriously appeared and was used in the Ferguson Grand Jury presentation, from some unidentified witness (#40), describing the relevant events consistently with an account that would exonerate the police officer.  I came across this story courtesy of the brilliant Andrew Roth and can’t improve upon what he has already set forth here.  And you need to follow the links.  Because this story should really get around.

Bottom line is that this “diary” is an obvious fabrication – because preposterous – and let’s hope Charles Pierce, Esquire’s politics blogger, connects the dots more fully and we get answers from the Ferguson DA about using that evidence, which he knew was false, before a Grand Jury.

Now, I know this is hard for a lot of people to swallow, the idea that someone has had to confront not just inaccurate evidence, but wholly made up evidence, and wholly made up evidence by the government at that.  For most people this is unthinkable, unspeakable, and highly disturbing, not least because this could happen to them.  Obviously.

This reluctance – this denial – can lead to bizarre results, where people become, let’s face it, functionally stupid.  The prosecutor here should have a lot to explain along the “what-did-he-know-and-when-did-he-know-it” lines, and if he can’t that might just be the end of his “career” as a prosecutor, and frankly there might be no good explanation because he’s either complicit in the dishonesty or…stupid.

Yes, he should have a lot of explaining to do.  Operative word is “should”.

But will anyone in the mainstream press, as opposed to just a few bloggers, pick up on this story and run with it, generating the pressure that will force him to have to explain?  I guess we’ll see, but believe it or not there’s a good chance the mainstream press won’t, and that nothing will come of this smoking gun type evidence other than Pierce and Roth and me blogging about it.

After all, nothing has come of the Ashley Baker statement, which surfaced in September of 2006:


And a lot of intelligent people seem to have trouble seeing that the story told in that statement is obviously preposterous and therefore a fabrication by whoever generated it, and we know who generated it, and who used it (or, properly speaking its derivatives) before a Grand Jury, and this wasn’t done to exonerate someone but rather to indict and ultimately imprison someone.

Need more?


I’m going to let readers put two and two together there rather than walk them through all that.  For anyone even remotely paying attention, there should be at minimum a horrible fascination about it all.  For anyone new to these pages, background can be found here.

Of course, to say that it is frustrating when, after all the lying and cheating you can’t prove screws things up for some poor bastard – because, you know, you couldn’t prove it – it then turns out not to even matter when you absolutely positively have proven it beyond a shadow of a doubt – well, to call that ‘frustrating’ doesn’t seem to quite capture it, does it?

So I hope this time it matters, and that a prosecutor who deliberately presented false evidence to a Grand Jury to get the result he wanted – mocking them and the whole system, including me – is punished for doing that. Or something.

Just remember, there is a school of thought among prosecutors that it’s okay to deliberately present perjury and/or fabricated evidence to a Grand Jury. Or was some such school of thought.  Maybe the Department of Justice has changed its mind, since they have removed the Grand Jury training manual that used to teach this from their official web page (used to be right here; now as you can see, you just get a blank page).


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Candor And Cynicism

Clearly, as far as I am concerned, candor is Judge Kopf’s long suit, with little to nothing else a distant second.

Too much of a good thing sometimes, though?  Iohno.

Candor breeds candor, I guess.  And it’s not pretty.  Discussing the recent Ferguson goings on, not just the judge but a number of lawyers chime in, with one main subject of discussion not lamentations concerning a dead teenager, nor dismay about the civil unrest the whole thing – our “process”, let’s face it – has sparked.

No.  These are secondary concerns at best.

At least one main thing is, how will this affect Eric Holder’s political career and standing?  What’s the right thing for him to do, career-wise?  How does he balance the interests of two warring factions in such a way that he comes out on top?

Think I’m kidding?

From the Judge’s main post, one of two questions he finds interesting:

1.  Is the failure of the Missouri grand jury to indict Mr. Wilson (a) a godsend for Attorney General Holder or (b) a curse for Attorney General Holder?

It’s a profoundly cynical question.  The idea is that it’s a “godsend” if Holder can successfully make political hay out of his own department’s prosecution after the state officials don’t prosecute, solidify his boss’ political base, and so forth.  It’s a curse if it fails at that, while upsetting the other side, of course.  You know, the police, prosecutors, whatnot.

Kind of appalling.  An updated and far more cynical version of fiddling while Rome burns.  At least Nero had the excuse of being crazy.

“Simple lawyer” BDC responds with calculation:

I agree with shg that the answer to the first question is “curse”. If the Missouri grand jury had indicted, then Holder could simply point to the ensuing state prosecution as a reason for not going forward with seeking a federal indictment. Essentially, it would have given Holder an “easy out”, especially if a state court trial had ended with a guilty verdict. Now, no matter what Holder does will subject him to criticism.

Prosecutor-professor Bill Otis, highly credentialed (Stanford!!) and not to be out-cynicaled by anyone:

1. The state grand jury did no favors to Eric Holder because it left him with a lousy choice: Either cater to the President’s political base (which needs goosing, given the last election) by returning an indictment; or go with the facts, which pretty clearly establish that Darren Wilson did what any of us would have done in the same dire circumstances.

I am no fan of Mr. Holder, but I think it likely that he has enough integrity to go with the latter. To make this less painful, however, I suspect that this will get done the same way Bowe Bergdahl is getting dealt with, to wit, keep saying “we’re gathering more facts” until the clock runs out on January 20, 2017.

And former “sex crimes prosecutor” Roger:

For me, the case in Ferguson falls in that category of legally sufficient but likely to result in a defense verdict. I’ve read as much of the transcript as I could get through so far, and it seems clear that (1) there is probable cause and (2) if the jury chose to believe witnesses they would be legally entitled to believe the evidence would be sufficient to sustain the conviction but (3) knowing what I know about St. Louis County juries, the odds of them convicting a nice young officer for shooting a 290-pound dope-smoking strong-arm robber who grabbed the cop’s gun after telling the cop to STFU when nicely asked to get out of the middle of the road are roughly a million to one against. I understand why the prosecutor didn’t want to press charges in a case with a likely twofer of pissing off the cops he relies on for all of his other cases and losing at trial. I think it was BS that he hid behind a faux grand jury proceeding rather than owning the decision himself, and if I were the feds I would be inclined to pursue the case, but I don’t expect that to happen.

I guess dead teenagers and violence in the streets boil down to facile characterizations (“dope-smoking strong arm robber blah blah) and crass political calculation (a “twofer” of “pissing off the cops blah blah) when you’re a “sex crimes prosecutor”.

And Greenfield’s over there – and, mixed bag that he is, first he takes the Judge’s bait:

The first question strikes me as easier to answer. The “no true bill” from the Ferguson grand jury puts the problem squarely on AG Holder’s plate. If he refuses to present, based upon the grand jury outcome, he then ties his integrity to McCulloch’s presentment. If he pursues a civil rights indictment, as in Rodney King, he will be tarred as doing so because of racial affinity, cop hating and/or ignoring the evidence. But either way, it’s a curse to Holder.

Then, with respect to a fairly easy second question – regarding whether a prosecutor should prosecute when he only has “probable cause” or whether he needs enough for a conviction – he’s flat wrong:

The second question is harder for me, as I’ve never been a prosecutor, and I don’t know the “real” evidence available in the case. The best response I can offer is that if, as a “straight up” prosecutor, I believed that there was probable cause to pursue a civil rights violation, I would do so, do so zealously, obtain the indictment in the ordinary course and try the case with the same zeal as any other, within the bounds of the law.

Greenfield likes his “I argue either side, just pay me, wind me up and watch me go” image.  Or self image, at any rate.

Gamso’s a lot better on that question:

If I’m convinced that the evidence is insufficient for a conviction then I can’t try to indict because I would be attempting to obtain a conviction of someone I believed to be legally innocent. That would be mere harassment, a clear violation of the prosecutor’s duty to do justice.

But still not quite.

A prosecutor who prosecutes believing that he doesn’t have sufficient evidence to convict violates the target’s right to due process of law, not just his “duty to do justice”.

Is that distinction important?  Oh yes.  One way the target has a remedy; the other way he doesn’t.

Ugh.  Our profession is in serious trouble.  But I guess we already knew that.

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