When there is an acquittal in a high-profile prosecution -- particularly a prosecution that reeks of political opportunism and racial edginess -- the civil liberties and criminal defense bars often whoop it up.
There was such an acquittal yesterday. But, from the usual criminal defense spokesmen, I'm not hearing any celebration. Indeed, I'm not hearing much of anything.
Why?
It's no big secret: Because the person acquitted was a cop -- the lead Freddie Gray defendant.
He was acquitted notwithstanding a hostile jurisdiction, a grandstanding prosecutor, a courthouse mob outside the building that could be heard inside, a poorly-hidden assumption of malice within the dominant culture, the widespread deep-sixing of the presumption of innocence, a long-ago trial and conviction in the media, and an overall circus atmosphere.
These are exactly the features of criminal justice that civil libertarians frequently condemn. They do so in the name of providing a fair process to all, no matter how ugly the crime or how despised the accused.
Unless, that is, they're the ones doing the despising. In that event, good luck in hearing, from the civil liberties lambs, a single BAAAA.
But Bill, IIRC, you believed that the bringing of these cases was justified--me, I don't see how the prosecutors who prosecuted the bike cop keep their jobs. There was no evidence, only bizarro world theories. This prosecution was little better--is failure to seat belt indicative of criminal negligence? And the murder charge? why should any of them get to keep the privilege of a law license?
I think what I said at the outset was that I couldn't (and still can't) dismiss the possibility that some criminal behavior occurred. Having someone sustain fatal injuries in a ride in a police van is very unusual.
The standard for bringing charges is probable cause. Given the evidence as described by the court in its verdict, you might well be correct that even that low standard was not cleared. But no one at the time knew exactly what the State's Attorney had or didn't have.
What was and is clear is that she's a political hack, a self-aggrandizing fathead, and maybe a racist. I am, however, against judicial removal, on the grounds that the branches cannot be equal if one can bounce the other.
Marilyn Mosby was elected and, like the elected judge in the Stanford rape case, can be removed by the political process. As long as that is available, I think the long run dangers of increasing judicial power exceed those of having an awful prosecutor.
Democracy has to live with its mistakes, because the alternative is not no mistakes, but mistakes from an even less correctable source.
Yes, democracy has to live with its mistakes--but so does that bicycle cop. You fulminate against the prosecutors in the case--but what of the bar of the state of Maryland?
The bicycle cop was put through the wringer. I suspect that race had something to do with that because they probably didn't want to deal with the headaches of not prosecuting an involved white cop. And they get to keep their livelihood licensed by the state. They tried to ruin his life, and he gets to suck a lemon.
I still think prosecutorial immunity is necessary--but if the bar continues its see no evil in cases like this, that view may need to be reassessed. In a just world, Mosby and the prosecutors here would be facing prison time.
If we think it would be hard to get good cops if they faced expanded civil liability, federalist, imagine how hard it would be to get good prosecutors if they faced prison time whenever pushed by a mob to bring charges.
I think a workers-comp kind of structural remedy for police and prosecutorial misconduct/mistakes could/would make a lot of sense, but I fear the Sharptons and tort lawyers would be sure to hinder any efforts to disrupt the status quo that serves them well.
Douglas stated: "If we think it would be hard to get good cops if they faced expanded civil liability, federalist, imagine how hard it would be to get good prosecutors if they faced prison time whenever pushed by a mob to bring charges."
I am not buying it. Look at the formulation of your sentence. You are saying that they would rather not take the job than do the right thing. I am not expecting St. Thomas More, but I think we can do better than a spineless jellyfish who would rather succumb to pressure than act legally. If they cannot, I do not want them in the office anyway.
You stated: "I think a workers-comp kind of structural remedy for police and prosecutorial misconduct/mistakes could/would make a lot of sense,..."
No system that fails to hold individuals responsible will work. You see it with government every day. Bureaucrats will hold an unsupportable position because any damages via lawsuit will be paid by taxpayers, not the government official.
Doug, isn't it funny how the academy sticks together---because, of course, some poor bike cop who clearly did nothing wrong or illegal somehow had to be prosecuted because the mob was calling for it. Imagine being the bike cop reading your casual defense of well, they were pushed by a mob.
Legal ethics rules demand more, and it's a sign of how far our legal system has degenerated to see an esteemed law prof offering up such a defense. There is a "reality" that I am not blind to. But basing prosecution decisions on fear that the"mob" won't tolerate non-prosecution is, by definition, tyranny.
And like I said, the bike cop has to suck a lemon. I don't think society has the right to expect that.