
How to Prosecute Abusive Prosecutors - pavornyoh
http://www.nytimes.com/2015/11/27/opinion/how-to-prosecute-abusive-prosecutors.html?ref=opinion
======
kbenson
> It is absolutely essential to bring rogue law enforcement officers to
> justice, particularly in a post-Ferguson world in which violations of
> constitutional rights have come under intense scrutiny.

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.

~~~
cperciva
_It 's essential not because there is more scrutiny, but because it's wrong to
allow it to continue._

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.

~~~
nickff
So maintaining the 'justice system' is an ends in itself? Why should I care
whether or not the government has a particular department? Your argument seems
to presume that the 'justice system' is good, or that it needs to be kept
around for some other reason.

~~~
cperciva
_So maintaining the 'justice system' is an ends in itself?_

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".

~~~
nickff
My political leanings are skeptical; it seems to me that the objectives of the
police and prosectors are (respectively) to preserve the police and the
prosecutors. When crime increases, the police say they are underfunded and
overworked, while prosecutors call for additional funding and powers. When
crime goes down, they claim it is thanks to their intelligence and dilligence.
Both groups are also known for avoiding being held responsible when they fail
at their jobs (such as by shooting unarmed people who happen to also be naked,
or convicting the innocent through fraudulent evidence).[1][2]

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...](http://www.cnn.com/2015/03/10/us/georgia-officer-fatal-shooting/)

[2] too many citations to put here

~~~
cperciva
I never said that I thought we should protect every individual member of the
justice system. Quite to the contrary, I think preserving and enhancing the
public trust in the justice system requires that individuals who have acted
abusively are _not_ protected.

~~~
nickff
My point was not that there have been individual failures, but that the
'justice system' is plagued by a lack of accountability, misaligned
incentives, and entire organizations who do not feel any obligation to the
citizenry.

------
hitekker
> In a recent interview, the judge, who sits on the Mississippi State Circuit
> Court, was unapologetic about his regime of indefinite detention: “The
> criminal system is a system of criminals. Sure, their rights are violated.”
> But, he added, “That’s the hardship of the criminal system.”

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.

~~~
orib
There's one quote that I see people refer to quite often:

> _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.

------
mgalka
Because most people have never experienced it, I don't think they realize how
much of our legal system is at the discretion of judges and their own personal
views / mood.

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...](http://blogs.discovermagazine.com/notrocketscience/2011/04/11/justice-
is-served-but-more-so-after-lunch-how-food-breaks-sway-the-decisions-of-
judges/#.Vlj-9l88KnM)

Scary.

------
vinceguidry
Really excited to see how this develops. My main objection to criminal charges
for abusive prosecutors is that bringing criminal charges against someone for
doing their job has always struck me as being one step away from mob justice.
I know I would never take a job where part of what I'm being paid for is
running a risk of criminal prosecution. You just never know where the
political winds are blowing at any given time. You can hedge against a risk of
civil litigation, but not against criminal prosecution, nobody in their right
mind should go anywhere near that shit unless they absolutely have to. I
personally wouldn't mind rolling the dice on a world where there's no
prosecutors because nobody will take the job and therefore no criminal justice
system, but perhaps that's not the best solution here.

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.

~~~
dietrichepp
I understand your worries about mob justice, but I think they are misplaced.

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.

------
Zigurd
They should also be bonded so that their employers are not carrying the risk
for torts they commit, and their immunity needs to be reduced.

That way the thuggish ones will price themselves out of the business.

~~~
sitkack
This is a great idea.

------
throwaway_pros
The United States has gamified prosecution so that those with the most
prosecutions can get elected as governors.

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.

~~~
IndianAstronaut
Probably going to continue if people keep electing people like this into
office.

------
rayiner
This Salon article has a bit more context:
[http://www.salon.com/2014/09/24/challenging_mississippis_dep...](http://www.salon.com/2014/09/24/challenging_mississippis_depraved_justice_system_months_in_jail_with_no_indictment_and_no_lawyer)

> 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.

~~~
paulsutter
Do you honestly think that proceedings that could place a person in jail for a
year could credibly be considered not a "critical stage"?

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?

~~~
rayiner
I'm not saying it's a reasonable interpretation. I'm pointing out that the
article tries to make it seem like one judge is throwing the Constitution out
the window, while it seems more a case of a state policy of trying to save a
buck at the expense of the accused.

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.

~~~
Zigurd
> _Singling out one particular judge who happened to make stupid comments in
> an interview won 't change those policies._

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.

~~~
rayiner
> 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.

~~~
Zigurd
>* 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.

~~~
rayiner
While that's the Supreme Court's _post hoc_ interpretation, you have to admit
it finds little support in either the text or history of those amendments.
It's unlikely the states that ratified those amendments realized they were
giving up the right to set local standards of how to treat the accused, etc.

~~~
Zigurd
I would base minimum federal standards of local criminal justice and election
conduct and etc. on the commerce clause, if it were up to me. Not meeting such
standards amounts to claiming you should be allowed to build highways that
won't accept heavy trucks. It would make it hard to do business nationally.

But, yeah, Reconstruction and subsequent events shaped those Amendments.

------
twblahblah
The judicial branch is corruption and distortion all the way down. And, it's
not limited to the poor and minorities. I see the fiefdoms and bastardization
in even the wealthiest of areas.

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.

~~~
discardorama
> 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.

------
tcj_phx
I was recently arrested for the first time.

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).

~~~
e40
What you describe (people in positions of power telling lies to get out from
under bad behavior) seems so common these days that it really makes me wonder
how we got here. How did truth and justice get demoted so far, and how did we
create so many people that can clearly sleep at night after these lies?

~~~
gnaritas
> seems so common these days that it really makes me wonder how we got here.
> How did truth and justice get demoted so far, and how did we create so many
> people that can clearly sleep at night after these lies?

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.

~~~
mr_luc
"We've always been here" is true, in that even in countries that enjoy
_relatively_ good justice systems have people who fall through the cracks ...
and people with power at every level for whom the theoretical good functioning
of the justice system is a terrible nuisance.

"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.

~~~
gnaritas
> 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 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.

------
discardorama
_Nonetheless, advocates across the country continue to expose judges who
unlawfully deprive defendants of lawyers or throw people in jail simply
because they are too poor to pay small amounts of money._

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.

~~~
licoricetic
[http://brooklynbailfund.org](http://brooklynbailfund.org)

~~~
discardorama
Thanks, that sounds very interesting. I wonder if we can automate some of that
and do it nationwide?

------
p4wnc6
While the issue in this article is certainly important, it is frustrating for
me to hear about it because I am currently dealing with the opposite
situation: small-town local politics are being used by a local prosecutor to
justify reducing charges / pursuing less-aggressive sentences in a case that
involves the biological father of my nephew being charged with a high number
of counts of a very serious and child-endangering crime.

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.

------
ommunist
How else will you maintain incarceration rate, so necessary for American
economics. Enslaving is such a good tradition of the US no one should easily
abolish.

------
will_brown
Few simple suggestions:

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.

~~~
jqm
"If you are truely outraged (which should occur only when you have personal
knowledge a wrong took place)"

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.

~~~
will_brown
pretty sure you are misreading what I wrote. I am not suggesting one should
only be outraged when they are personally wronged. Rather one should only be
outraged when they have personal knowledge a wrong actually occurred.

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.

~~~
jqm
Fair point and maybe I read a little fast. Or maybe I don't understand what
you mean by "personal knowledge". Is seeing it on TV personal knowledge or do
you have to have witnessed it in person?

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.

~~~
will_brown
Personal knowledge of a wrong would depend on the wrong. Seeing the wrong on
TV/video _could_ give one personal knowledge but could equally mislead.
Example, if you saw video of a cop shot someone without any provocation, you
might think that is a wrong, but what if seconds before the video began
recording the cop was stabbed with a knife. Again the concept I'm getting at
is generally having all the facts.

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.

