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Why the Decision Not to Prosecute David Gregory Was Correct

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In a recent Sunday news show, NBC's David Gregory held up an empty ammunition clip to demonstrate to his guest, an NRA spokeman, the dangerousness of allowing people to possess a clip that can hold many (I think it was ten) bullets.  As it happens, it was a clear violation of DC gun control law for Gregory to have the clip, empty or not.  There ensued a heated debate about whether Gregory should have been prosecuted.

Many on the pro-Second Amendment side (a side I generally agree with) thought that he should have been charged.  They mocked the gun control crowd's flaunting the laws they so eagerly foist off on others.  They derisively noted that Gregory got a free pass from the DC Attorney General, Irv Nathan, wondering whether Nathan, the same sort of liberal Democrat that Gregory certainly seems to be, would have been similarly deferential to, say, a pro-gun rights TV talk show host on Fox News who held up the same ammo clip.

On the well-known conservative blog Legal Insurrection, I agreed that Nathan should have recused himself from the decision whether to prosecute Gregory.  In my view, however, Nathan's substantive decision not to prosecute was correct.  This provoked a firestorm of criticism from some of my fellow law-and-order conservatives.  But, as I explain after the break, their criticism partakes of exactly the prosecution-as-politics ethos that, in the gun control debate as elsewhere, they correctly decry.    

The decision whether to prosecute a citizen of the United States should not be about making a point or showing the world that the potential defendant and his political cohorts are hypocrites. The power of the state to imprison a particular person is too fearsome to allow an individual defendant to be swept up in the general, and quite heated, debate about gun control or other controversial laws.

A prosecutor needs to remember that his official function is to do justice in the individual case before him. Now what constitutes "justice" is not always so easy to discern, and that's what generates the heat. But in the Gregory case, the answer to that seemed pretty clear to me.

Would a normal person consider David Gregory a criminal? Would he be leary about having him as a next door neighbor? About allowing his kids to go trick-or-treating at his house? About leaving a valuable package outside where he could see it?

I doubt it. I've certainly seen no evidence of it.

Given that, and given that a prosecutor's office does not have the resources to take every case it could (or anything close to every case), a decision has to be made about which ones to prosecute and which to leave behind. That decision should rest principally on which cases will do the most to advance public saftey.

The idea that public safety would be advanced by putting Gregory in jail seems strained if not absurd. Thus, if one were to apply my proposed maximize-public-safety standard, the decision not to spend scarce tax dollars prosecuting Gregory seems correct, even simple.

The objection was simple too, however. "But what about the average Joe who would have been prosecuted? Is this fair to him? Isn't Gregory skating by just because he's a bigshot?  Or, more specifically, just because he's a liberal media bigshot?"

There are two answers to this. First, it's far from clear to me that the average Joe would have been prosecuted for the specific behavior Gregory undertook. That is, while the average Joe might have been prosecuted for having an empty ammo clip in one bedside stand (and a revolver in the other), would he have been prosecuted for holding up the ammo clip while doing nothing more than debating his neighbor about gun control laws? I would be amenable to seeing hard evidence that he would have been, but I have no such evidence now.

Second and even more important, assuming arguendo that the average Joe would have been prosecuted in the those circumstances, does that mean that the law should compound its fecklessness or even perversity by repeating it? And should it do so by pushing aside the standard criterion (maximize public safety) for deciding when a potential defendant should become an actual defendant?

 The place to address wrongheaded laws is not in some tiny prosecutor's office but in Congress. A potential defendant, be it Gregory or anyone else, is first and foremost a citizen of the United States.  He is not a cipher in a national debate no matter how important that debate may be or how earnestly its partisans may feel about their views, or the hypocrisy and sleaziness of the other side's views. The answer is not to prosecute Gregory, but to think again about whether others similarly situated should be prosecuted.

The argument in favor of prosecuting Gregory reminds me of one of the arguments made against having the death penaty: That because capital punishment is not imposed (and sometimes not even sought) for some of the most grotesque killers, it's hypocritical, or at the minimum unfair, to impose it on people whose crimes are no worse. The answer to this has always seemed obvious. The fact that the law sometimes mistakenly or even obtusely gets some things wrong is hardly a reason intentionally to get everything wrong.

It seems to me that what some of my fellow conservatives want to do here is make Gregory the scapegoat for liberal hypocrisy. He is certainly an inviting target given, among other things, his amazingly fawning interview with President Obama, in which he did everything but kiss the President's ring. But the impulse to hoist the other side on its own petard is just that -- an impulse.  Impulsiveness and the delicious revenge that gives it its zest are tempting indeed. But impulsiveness and temptation are poor substitues for sobriety and restraint in wielding the power of the state. Conservatives and libertarians, above all others, should find this easy to remember.

5 Comments

While I agree that, given the known facts, filing a case against Gregory would not be a good use of limited prosecutorial resources, I do not entirely agree with BO that justice consideratios are as limited as he suggests.

Here, in crazy California, we have a rule of court (written by judges, not prosecutors and surely not defense attorneys given the language) laying out several objectives in sentencing, one of which is "deterring others from criminal conduct by demonstrating its consequences." CA Rule of Ct. 4.410(a)(4). Prosecuting Gregory would have been high profile and would have made clear to others that the statute prohibits possession of a high capacity magazine regardless of innocent intent. That has value if you want to deter anyone from having such a magazine.

Frankly, the choice not to prosecute Gregory demonstrates the danger of discriminatory prosecution. Since the statute is written broadly to include possession, even with innocent intent, it gives prosecutors great power to decide who is, and is not captured by the law. This discretion, while most often handled appropriately, as it was in the Gregroy case in my opinion, allows the executive decide who is a criminal. Political winds blow one way for some, and another way for another. Over time, you will get some people with innocent intent prosecuted, and some (Gregory) not. Of course with good and ethical prosecutors, this is not an issue. However, politics have crept into prosecutorial decisions in the past, and will do so in the future. As career prosecutor in a large CA county, political winds pull all too frequently, even if compared to overall numbers it is extremely infrequent.

I believe that the reasons for not prosecuting Gregory really reveal a weakness in the law as written. Either use his case as reason to write a more narrow statute, or prosecute an obvious and easily proveable violation to show the public that the law is serious about people who possess high capacity magazines. His intent could be dealt with at sentencing.

While I agree that, given the known facts, filing a case against Gregory would not be a good use of limited prosecutorial resources, I do not entirely agree with BO that justice consideratios are as limited as he suggests.

Here, in crazy California, we have a rule of court (written by judges, not prosecutors and surely not defense attorneys given the language) laying out several objectives in sentencing, one of which is "deterring others from criminal conduct by demonstrating its consequences." CA Rule of Ct. 4.410(a)(4). Prosecuting Gregory would have been high profile and would have made clear to others that the statute prohibits possession of a high capacity magazine regardless of innocent intent. That has value if you want to deter anyone from having such a magazine.

Frankly, the choice not to prosecute Gregory demonstrates the danger of discriminatory prosecution. Since the statute is written broadly to include possession, even with innocent intent, it gives prosecutors great power to decide who is, and is not captured by the law. This discretion, while most often handled appropriately, as it was in the Gregroy case in my opinion, allows the executive decide who is a criminal. Political winds blow one way for some, and another way for another. Over time, you will get some people with innocent intent prosecuted, and some (Gregory) not. Of course with good and ethical prosecutors, this is not an issue. However, politics have crept into prosecutorial decisions in the past, and will do so in the future. As a career prosecutor in a large CA county, political winds blow all too frequently, even if compared to overall numbers it is extremely infrequent.

I believe that the reasons for not prosecuting Gregory really reveal a weakness in the law as written. Either use his case as reason to write a more narrow statute, or prosecute an obvious and easily proveable violation to show the public that the law is serious about people who possess high capacity magazines. His intent could be dealt with at sentencing.

Actually, proscecuting Gregory would have been the best use of prosecutorial resources. Making an example of him for other violators would have discouraged other offenders seeing that even the rich and powerful would be prosecuted for such a crime.

Prosecutors don't have enough money to go after all the cases that actually cause palpable harm, much less those that don't.

Gregory's didn't. He wasn't going to use the clip to do anything harmful, and everyone knows it.

Targeting the rich and powerful is very Politically Correct, but I don't buy it. Anyone planning to knock over the liquor store with a handgun would hardly be deterred by a prosecution of Gregory. Indeed, the more likely prospect is that such a person would have thought (if they thought anything), "Gads, these prosecutors are such a bunch of dopes they indict some talking head on TV!!"

I am no big fan of gun control laws because, if for no other reason, I doubt they do any good. As gun backers say -- and I have never heard refuted -- if guns are outlawed, only outlaws will have guns. But if we are to have gun control, prosecutions should be targeted at those most likely to USE the guns for a bad purpose. The idea that David Gregory is such a person is ridiculous. It would be like going after a rich guy smoking a joint, when you barely have enough resources to go after a biker gang selling meth.

I hesitated to respond to the post. I find it hard to secern my glee at the prospect of a self-righteous prig like David Gregory hoisted by his own petard from a dispassionate evaluation of the merits of a hypothetical prosecution of him.

But I have to come down on the side of prosecution. Gregory, if news reports are to be believed, willfully and publicly violated this statute. Such a willful disregard of the law, particularly after other less famous people have been put through the wringer for non-willful violations of DC gun laws is a travesty. The DC prosecutors office has doubled down on non-willful alleged violations, and yet decides to leave Gregory alone?

I get the idea that two wrongs don't make a right and that the abuse of others doesn't justify making an example of Gregory. But what's the lesser evil here? The non-prosecution of Gregory, given the history here, sends an unmistakable message of a rigged game. Now, of course, the history isn't Gregory's fault--but he was the one, through his willful acts, which presented prosecutors with this Hobson's choice (i.e., prosecuting a non-harmful criminal act and letting a law being so obviously flouted with the attendant bad impression of a rigged game.) I don't see how he gets to create this issue and walk.

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