
Judge says prosecutors should follow the law. Prosecutors revolt. - Cadsby
http://www.washingtonpost.com/news/the-watch/wp/2014/03/07/judge-says-prosecutors-should-follow-the-law-prosecutors-revolt/?tid=pm_lifestyle_pop
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Crito
In situations where accusations of widespread corruption, misconduct,
unethical action, etc are made, a phrase that is often trotted out in defense
of the accused is _" just a few bad apples"_. It's not WhereEver Police
Department that has an issue with racial bias and violent escalation, _it 's
just a few bad apples_. Our school district does not have a bullying problem,
_it 's just a few bad apples_. Etc.

What is interesting about this cliched defense is that it is actually a
malformed statement of the _original_ cliche, "A few bad apples _spoil the
barrel._ "

The original cliche refers to a phenomenon where overripe or rotten apples
release ethylene gas, which is a ripening agent. This ethylene gas will
accelerate the ripening/rot of nearby apples. If you are not _vigilant_ in
weeding out the bad apples, the rot will rapidly spread and soon there will be
_no_ good apples left to rescue.

Human "bad apples" don't release ethylene gas, but they corrupt their peers
nevertheless. When a good cop backs the cover story of his corrupt cop
partner, he becomes a bad cop as well. When prosecutors take up arms in
defense of their corrupt prosecutor peers, they become no better than the
initially targeted. If school administrators allow a bully to have his way for
too long, then everybody else sees that they can get away with it too and
before long you have daily fistfights behind the school at the end of the day.

Institutions that have had widespread unchallenged corruption for decades
rarely need keyhole surgery, they need amputations.

~~~
MBlume
Related: I don't understand how the "few bad apples" defense always seems to
be used to argue for "so ignore it" rather than "and by the way, when we find
a bad apple, it goes straight in the garbage disposal where it belongs". Like,
all these prosecutors are going apeshit because a judge dared to say they
should possibly lose their licenses -- what about the idea that they should
serve time, time comparable to what they may have capriciously caused
innocents to serve? "Law and order" is all well and good, but I'd like to see
it go both ways once in a while.

~~~
fleitz
I don't think they should lose their licenses, they should be tried for
contempt and the mandatory minimum applied.

Prosecutors might be well served in these instances by the judge refusing a
plea bargain as is their prerogative.

~~~
sseveran
Mike Nifong is a good example of someone who abused his office. Wikipedia
calls him a "rouge" prosecutor. Maybe he wasn't so rouge...

~~~
thesteamboat
Off-topic pedantic point. Ro_gu_e is an adjective that means without guidance
or lacking oversight. Ro_ug_e is a type of cosmetic, namely one for making the
cheeks redder. While the image of a red-faced prosecutor screaming at his
clerks is amusing, I don't think it's what you had in mind.

Sorry to distract from your otherwise valid comment.

~~~
bertil
Completely relevant point, I would say: I assumed ‘rouge’ meant ‘red’ in that
context, _a.k.a._ presumed socialo-communist, _a.k.a._ a prosecutor trying to
redress economic and political injustices, going after the rich and powerful
and ignoring petty crimes, like several prosecutors have been accused of doing
in France and Italy. That made the original common odd.

------
DiabloD3
I'm glad someone is finally standing up for the rights of common citizens. I
really don't want to see the social experiment of the United States end in a
failure, and every day our rights are eroded, we get closer to that. I like
this country, and consider myself a patriot. I just also have to recognize
that the people who participate in running this country do not always have our
best interests at heart.

~~~
kiba
_I really don 't want to see the social experiment of the United States end in
a failure, and every day our rights are eroded, we get closer to that._

If you watch television, you will think that the world is becoming worse.
After all, news is only when rare things happen, and usually very bad things
at that. Now, I am not saying that that criminal justice system is in need of
a huge overhaul. It is a real human right problem that needs to be fixed.

But what you're saying is that you think that we are losing rights. Are we
really? Consider that in the last 50 years or so, we are gaining more rights.
Even animal gains more right. Perhaps this is not the case in the last 10
years or so. Maybe we really are losing rights.

Consider this: When somebody brings a human right problem, that is a good
omen. That mean somebody acknowledges the problem. If a human right problem
remains hidden from view, our perception will be wrong, because it means we
think we have more right or freedom than we really have and we can't do
anything about it. So the Snowden revelation is good news, but the bad news is
that Snowden is necessary in the first place and the fact that it had remain
hidden across two presidency.

So if the media is openly reporting abuses done by prosecutors and other
agents. That is a good thing. It means that our error correction mechanism is
starting to work, which will hopefully lead to a change that curb the abuse
and prevent it from happening.

But what about our freedom over the last ten years? What's the reality? One of
the freedom index graph says that our freedom across the world is quite
stable, maybe increasing.
[http://en.wikipedia.org/wiki/Freedom_in_the_World#Trends](http://en.wikipedia.org/wiki/Freedom_in_the_World#Trends)

I have yet to look at other graph. But if you're going to say that we are
losing our rights, maybe it's a good idea to quantify how much over what time
period.

~~~
humanrebar
I don't disagree with your analysis, but people don't gain or lose rights
based on government whims. People have inalienable rights that can be
respected or violated. This may seem like a semantic point, but I think it's
important that to remember that fundamental rights, like the right to to a
fair trial, exist no matter whether the law and its agents honor those rights.

When governments fail to respect inalienable rights, they lose legitimacy.

~~~
XorNot
Inalienable rights is verbage that sounds good, but means practically nothing.

Do you have a right to life? Well no - America is one of the only first world
nations to still have the death penalty.

Liberty? The standard faire of our justice systems is to remove that.

Pursuit of happiness? This is the only one I'd argue everyone does have, that
actually is inalienable. The loss of that tends to actually cause problems.

But everything else comes stamped with some big provisos about one's place and
actions within society, and a discussion where we hamstring ourselves over
what is and isn't a right ultimately is what erodes those we do have -
worrying too much about whether something is a right, rather then if what
we're doing _is_ right.

~~~
humanrebar
I sounds like you agree that what is right exists outside of legal
definitions, which was my point. The point being that moral authority does not
derive from the legal code. To the extent that governments can be blamed for
failing to protect the rights to life, liberty, property, conscience, etc.,
they can be found to be immoral or unjust. And at a certain point, the laws of
the government (or even the government itself) loses legitimacy.

This was really the thesis of the Declaration of Independence.

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iamthepieman
I applaud this judge. I also feel like I'm not hearing the full story.

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rbcgerard
Two things:

1\. I suspect the genisis of this immunity was to inoculate prosecutors from
coercion by politicians - which is probably a good thing. But I would be
curious to know about the logic behind it.

2\. While perhaps it might be worthwhile to have some level of immunity that
logic frays somewhat when acts that would generally be considered immoral and
perhaps criminal are unaddressable.

~~~
vilhelm_s
The "absolute immunity" for prosecutors was established in Imbler v. Pachtman
(1976). The logic is that if prosecutors could be sued by people they accused
but failed to convict, that "would cause a deflection of the prosecutor's
energies from his public duties, and the possibility that he would shade his
decisions instead of exercising the independence of judgment required by his
public trust."

([http://scholar.google.com/scholar_case?q=Imbler+v.+Pachtman&...](http://scholar.google.com/scholar_case?q=Imbler+v.+Pachtman&hl=en&as_sdt=2,14&case=5758861728040203406&scilh=0))

~~~
rbcgerard
interesting, thank you!

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etanazir
One problem with the Judge's statement is that it is beyond the scope of an
actual case or controversy. A Judge should judge each case individually not
make up general rules and policies to prospectively apply to future behaviour,
since that is for the legislature and executive in a separation of powers
system. If the Judge wants to issue a warning or punishment to a particular
prosecutor for a particular inappropriate behavior that would be in bounds;
but media statements designed to influence elections are out of bounds for
american judicial behavior.

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_greim_
In the interest of hearing both sides of the story, can someone explain what
legitimate complaints prosecutors may have about these developments, if any?

~~~
bagels
They fear corrupt judges, perhaps, theoretically. Maybe the proliferation of
laws that make everything illegal.

But probably, they just want immunity for their crimes.

