Recently in Notorious Cases Category

Should Marilyn Mosby Be Disbarred?

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Al Regnery presents a strong case in behalf of the petition to disbar Baltimore State's Attorney Marilyn Mosby.  The points he makes below bear particular emphasis:

[Ms.] Mosby has done enormous damage to the jurisdiction that entrusted her with [her] office. First is the staggering increase in crime in Baltimore since the Freddie Gray incident - much of it attributable to the "Ferguson effect" of police reluctance to put themselves in danger of prosecution. She has also made it more difficult for other prosecutors to bring difficult cases, since she has generated distrust and suspicion of the justice system among her constituents. Even beyond that, however, is the damage she has done, and continues to do to the justice system itself, which relies on public trust and reliance, by the people affected by it, that it is run professionally, without bias, and without political interference.

The second and third points are especially telling, because they go to the long term, and thus less visible, consequences of Ms. Mosby's behavior.

The BLM movement often warns us that the system lacks the people's trust.  But I hear nothing from it when the most basic form of trust the public needs in prosecutors  --  that politics is out and law is in  --  is dumped over the side, replaced by a floridly political approach to wielding this awesome power.
William Horobin and Inti Landauro report for the WSJ:

The man who killed 84 people in Nice on Bastille Day appeared to be planning the attack since last year and had the help of several people, France's top antiterror prosecutor said Thursday.

Investigative magistrates on Thursday were interrogating five people suspected of providing support to 31-year-old Mohamed Lahouaiej Bouhlel, said Paris Prosecutor François Molins, who laid out a timeline suggesting the attacker and his suspected accomplices had embraced Islamic extremism as early as the Charlie Hebdo attack in January of last year.

The details disclosed by Mr. Molins threaten to fuel public anger at French President François Hollande and his ministers, who have spent days defending their handling of the terror attack.

The new evidence appears to contradict claims made by top French officials immediately after the rampage that Lahouaiej Bouhlel was radicalized in a matter of weeks, leaving security services little chance of stopping him when he plowed through throngs of revelers on Bastille Day with a 21-ton truck.

Instead, Mr. Molins suggested Lahouaiej Bouhlel may have conducted surveillance on his target a year before he acted and communicated more than a thousand times with suspected accomplices.
Accomplices who share the specific intent are just as culpable as the triggerman.  Presumably some of them will be caught.  What will France do then?   Will they do like Norway with Anders Breivik and sentence them to less than four months in prison per life taken?

Are you really sure you don't want capital punishment, mes amis?
And yet another wrongly maligned prosecutor is exonerated.

AP reports from Manassas, Virginia:

For much of the last 15 years, Justin Wolfe was both a death row inmate and a cause célèbre. His supporters, as well as a federal judge who heard his appeal, believed he was a victim of malicious prosecutors who covered up the truth in an effort to execute an innocent man.

Now Wolfe's 15-year legal saga -- which at one point had him days from execution and later on the brink of total exoneration and freedom -- has concluded with a 41-year prison sentence and an admission that prosecutors had it right all along.
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After years of denying responsibility for the 2001 murder of Daniel Petrole, Wolfe on Wednesday apologized to Petrole's family in a packed Manassas courtroom.

The Collateral Consequences of Acquittal

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Those who see criminals as victims tend frequently to complain about the collateral consequences of conviction.  And while it's true that there are likely to be such consequences if you're found guilty of, for example, being a smack pusher, con artist, strong arm or thief, etc., our opponents misapprehend the true source of the problem.  

It's not that the offender has an adverse adjudication (although certainly that's in the mix). It's the behavior that led to the adjudication in the first place. An adjudication of criminal conduct provides a prospective landlord or employer with a more reliable than usual indication of potential problems any sane person in that position would want to know about  --  and, in this day and time, probably has to know about to avoid liability if an employee whose, shall we say, behavioral anomalies the employer could and should have learned about through due diligence  --  but didn't  --  goes on to harm a co-worker or customer.

Who do you think will be on the hook for that?

But I digress.  Those showing the most concern about the collateral consequences of conviction oddly show none at all about the just-in-the-news collateral consequences of acquittal.

Now you might be saying:  Hold on there.  How can there be collateral consequences when you're acquitted?
Legal academia is famous for its criticism of prosecutorial high-handedness. Employing the power of the state to serve the social or political goals of the prosecutor gets scorched as the fast road to, at best, arbitrary government  -- and, at worst, tyranny.

This view is 100% correct. I've said this before, albeit in a context not necessarily beloved by liberals.  Prosecutors are servants of the law, not vice versa.

What are we to make, then, of this remark from law professor and former public defender David Jaros of the University of Baltimore's School of Law (quoted in the Washington Post concerning Marilyn Mosby's conduct of the "no-convictions-anywhere" Freddie Gray prosecutions):

If [a prosecutor] believes a crime was committed and they believe they're sending a valuable message to the community about the value of a poor black man's life or what is appropriate responsibility for a police officer, there are benefits of this trial that can't be measured in convictions and acquittals. 

How's that?  Legal guilt is over there somewhere?  The important mission is for the prosecutor to decide what's "appropriate responsibility?"

Gads.  And here I spent 18 years as an Assistant US Attorney and never realized the extent of my Regal Portfolio.  


Amanda Lee Myers reports for AP:

Minutes after former Los Angeles County Sheriff Lee Baca acknowledged failing the public by lying to federal authorities investigating jail beatings, a judge overseeing his corruption case shocked a packed courtroom Monday by rejecting the ex-lawman's plea agreement as too lenient.

Dear Ms. Mosby: Give It Up and Go Home

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This morning, the highest ranking police officer of the six charged in the Freddie Gray case, Lt. Brian Rice, was acquitted on all charges.

That makes the record of the State's Attorney, Marilyn Mosby, perfect.  She has tried four officers on several counts each, ranging from homicide to dereliction of duty, and has failed to secure a single conviction.  In 18 years in a prosecutor's office, I do not recall even one time that we charged multiple defendants in one episode and could not convict any defendant on any count.

I was one of the few conservatives who was willing to give Ms. Mosby a chance, notwithstanding her inauspicious beginning, starting with a glitzy courthouse "news conference" that resembled a campaign rally more than anything else.  The circumstances of Gray's death were too suspicious and too fraught for me to conclude ab initio that no charges were warranted.

I now confess error.  I suppose it's still possible that there was criminal wrongdoing somewhere in the police handling of Freddie Gray, but Ms. Mosby is too ideological, too inbred in a culture of racial snarling, and, frankly, too much of an amateur to prove anything.

Obama and Dallas

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Jason Riley has this commentary in the WSJ.  Here are some excerpts.

President Obama is scheduled to speak in Dallas Tuesday at a memorial service for the five police officers gunned down last week--but haven't we already heard enough from him?
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Time and again during his presidency, in matters large and small, Mr. Obama has assumed the worst about police.
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Like others on the political left, Mr. Obama has made a habit of minimizing or ignoring the high black crime rates that obviously underlie tensions between poor minority communities and cops. More than 95% of black shooting deaths don't involve the police, which would seem to undercut the notion that trigger-happy cops are hunting black men. Sadly, rates of murder, rape, robbery, assault and other violent crimes are 7 to 10 times higher among blacks than among whites, but liberals who don't want to alienate black voters go to great lengths to explain away this behavior and focus instead on police conduct.

Yes, Mr. Obama has denounced what happened in Dallas, but he has also been winking at a Black Lives Matter movement that has spent the past two years holding rallies that call for (and sometimes feature) violence against cops. Like the president, these protesters maintain that the police are motivated by racial prejudice, not by the behavior of suspects. They insist that a biased criminal-justice system explains the black crime rate, not antisocial behavior. By indulging this narrative, Mr. Obama and his fans in the liberal media were playing with fire, and the Dallas carnage was the result.

I haven't posted on the shootings of the last week because, frankly, what little I have to say at this point has been said well by others.  Matthew Hennessey has this article at City Journal. Here is the concluding paragraph:

The anti-cop Left never hesitates to run with its preferred narrative--that racist police are hunting down young black men and murdering them. But those with an interest in truth and justice should wait for the facts. It could turn out that the killings of Alton Sterling and Philando Castile were entirely unjustified, much like the 2015 death of Walter Scott, shot eight times in the back by a North Charleston, South Carolina, police officer as he tried to flee. Or, it could turn out that Sterling did have a gun, and that Castile either argued with the officer or disobeyed his instructions (which may or may not justify the officer's actions). We just don't know yet. Until we do, reckless allegations and media-driven narratives won't do us any good. 
In the same publication, Bob McManus has this article:

Baton Rouge and St. Paul, like so many of the similarly tragic police-custody deaths that preceded them, may have been the product of circumstance, or of incompetence, or maybe they were even crimes. Each must be examined in context and judged accordingly. But Dallas was cold-blooded murder--nothing more, nothing less. Attempts to assign equivalence to the horror of it--to suggest, as some are doing on social media, that Dallas is somehow just deserts for Baton Rouge or St. Paul or Baltimore or Ferguson, or even for Eric Garner's death on Staten Island two long years ago--is morally repugnant.

Justifying the Dallas Murders

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I have from time to time recommended reading Doug Berman's blog, Sentencing Law and Policy.  It's not just that Doug has wonderfully eclectic sources; it's that his commenters  -- overwhelmingly on the defense side  --  every now and again pull back the curtain on what goes on in the pro-criminal mind.  There was a beauty this afternoon, in a discussion thread about where responsibility lies for the Dallas police massacre.  Readers will guess correctly that it was not with the sniper or snipers.

For all you troglodytes, here's your education:

The apologies should cascade from all the sanctimonious prosecutors and authoritarian badge lickers who wear black robes who have established a legal superstructure (via decisions not to prosecute and case law) which fails to hold murderers with badges accountable. A substantial portion of the American citizenry does not believe the justice system is legitimate--and that is a very real problem. Where those who are aggrieved have no effective outlet to address those grievances, other outlets will appear.

The remarkable thing about this comment (from "Mark M.") is not its odiousness but its honesty.  The more widely published police bashers know their PR rules better, and have trotted out a display of restraint, or even moping regret, about the murders. 

Mark M., whoever and wherever you are, I appreciate your saying out loud what so many of your allies are thinking.
I noted in my last post that, when you peddle hatred of the police, you get hatred of the police. This is not rocket science.  

Nor is it rocket science  --  indeed, it's nothing but history  --  that when you peddle hatred, violence is next in line.  Those who'll be claiming today that there is no relation between (1) banshee condemnation of the police and (2) violence against the police, are lying.  There's no polite way to put it, and I decline to gussy it up for pundits who, yesterday, were in the banshee business but, today, find it useful to feign prissy high-mindedness.

Racial grievance is a part of all this.  I don't have to like it  --  and I don't  --  but I'm not going to gussy that part up, either.  I didn't invent the race-huckstering Black Lives Matter narrative.  They invented it for themselves.

After Barack Obama was elected, seven in ten Americans thought he would improve race relations.  It hasn't happened.  To the contrary, a recent Gallup Poll Reveals Obama Has Turned Back Clock on Race Relations (emphasis added):

[S]ince he took office, national tensions over race have gotten worse than ever, with the share of Americans who worry a lot about race relations soaring to 35% from a bottom of 13% just after Obama took office, according to a shocking new Gallup poll.

In fact, racial strife is the highest it's been in the poll's 15-year history.


There doesn't seem to be a flash transcript of today's hearing in its entirety, but CNBC does have a transcript of the exchange between FBI Director James Comey and South Carolina Representative Trey Gowdy, both former prosecutors.  I will paste it after the break.

Mens Rea, and Justice, Upside Down

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Question 1:  Under what circumstances will Barack Obama's Justice Department charge and convict you, and seek and obtain a prison sentence, on the basis of a crime (production and shipment of infected produce), that you committed out of gross negligence, but without criminal intent?


Question 2:  Under what circumstances will Barack Obama's Justice Department refuse to charge or convict you, or seek any criminal  punishment, on the basis of your grossly negligent, but putatively unintentional, exposure of top secret national security information? 

A:  When you're Hillary Clinton.  See Director Comey's testimony today.  Director Comey's position is that Hillary's conduct matches the behavior prohibited in Section 793(f), but that it would be "unfair," and "constitutionally suspect," to seek criminal punishment because that provision allows conviction merely on the basis of gross negligence.

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I thought it was possible that, for the first time in 50 years, I would go an entire campaign and agree with almost nothing the Republican candidate said.

I was wrong.  The system is rigged.  And it's rigged especially quaintly if you're a Clinton. If Madame Hillary is, not merely exempted from punishment lesser people face for criminal negligence, but rewarded with the Presidency, for God's sake, the anthem "Equal Justice Under Law" becomes a bawdy joke.

Seven Questions for Director Comey

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Director Comey will appear before Congress today.  Here are seven questions I hope he'll be asked.

1.  You said that no reasonable prosecutor would have brought a case against Sec. Clinton on the facts you found.  But four well-regarded former federal prosecutors  -- Attorney General and Judge Michael Mukasey; former Deputy Attorney General Rudy Giuliani; former Division Chief Andy McCarthy of the USAO for the Southern District of New York; and former Appellate Chief for the Eastern District of Virginia (now Georgetown Law Professor) William Otis have all said that a prosecution could have been brought and probably would have succeeded.  Do you think these are all unreasonable judgments?

2.  The statute most obviously suited for prosecution is 18 USC 793(f), which forbids improper exposure of classified national security information through gross negligence. You correctly characterized Ms. Clinton's behavior with such information as "extremely careless."  Doesn't extreme carelessness provide a fully adequate basis to put before a trial jury the question whether Ms. Clinton's conduct showed gross negligence, and thus breached the statutory standard?

3.  You began your statement by reciting what the law requires for a felony or misdemeanor conviction in cases like this. You noted that gross negligence is the standard for a felony conviction. You then recited a host of facts as the FBI found them. Isn't there, at the minimum, a reasonable prospect that a trial jury would have found these facts taken together, to  constitute gross negligence?

4.  When it came time to merge these two strands and explain your decision whether to recommend an indictment, you then, oddly it seems, made no reference to the legal standard you correctly articulated a few minutes earlier.   Instead, you formulated a new standard based on features you said have been present in past cases where prosecutions have been brought for the mishandling of secret/classified information. Gross negligence  --  the statutory measure  --  was no longer included in your description, and was replaced by intent to harm the U.S.or disloyalty.

Doesn't that amount to a re-interpretation of the statute, not by the courts or Congress, but by the investigative arm of the executive branch?  And doesn't it, in effect, transform a gross negligence statute into a more typical  --  but not constitutionally  required  --  mens rea statute?


5.  Putting that entirely to one side, have there not indeed been prosecutions for 793(f) offenses based strictly on the statutory standard of gross negligence?   For example . United States v. Roller, 42 M.J. 264 (1995) (affirming 18 U.S.C. 793(f) conviction of a military serviceman who inadvertently placed classified materials in his gym bag and then took them home, which the court determined to be "gross negligence" as the statute required).  Does that case call into question your statement that a Clinton prosecution on these facts would be "unprecedented."


6.  Even if one takes the problematic view that the very unusual and prominent features of this case warrant taking into account more than "merely" the existence of probable cause and gross negligence, does it seem to you that  those features  -- principally the need for accountability from high officers of the government, and for public confidence in equal application of the law to big shots as well as ordinary people  --  suggest even more strongly that an indictment should have been recommended?


7.  If Ms. Clinton had been an employee of the FBI; had engaged in the same pattern of extreme carelessness; and had in addition displayed the same failure to be truthful in describing what she had done, and in having her lawyers delete thousands of emails before your investigation could assess their national security significance, would Ms. Clinton have been promoted or demoted  --  or fired?

Q: Did Director Comey Make a Mistake?

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A:  In my opinion, based on publicly known facts, he did.  There was probable cause to believe Ms. Clinton committed one (or more likely, numerous) felonies, to wit, illegal exposure of classified information through gross negligence, in violation of 18 USC 793(f). And if one is of the view, as I am, that the very unusual and prominent features of this case warrant taking into account more than "merely" the existence of probable cause, it seems to me that those circumstances  -- principally the need for accountability from high officers of the government and public confidence in equal application of the law  --  suggest even more strongly that an indictment should have been recommended.

The case has been made by former star federal prosecutor Andy McCarthy, here; by Judge Michael Mukasey, here (noted earlier by Kent): and by the WSJ editorial board, here.  In addition, Paul Mirengoff notes what certainly seems to be the disjointed logic of Director Comey's analysis:

Comey's explanation was odd and unpersuasive on its face. He began by reciting what the law requires for a felony or misdemeanor conviction in cases like this. He noted that gross negligence is the standard for a felony conviction. He then recited the facts as the FBI found them. These facts suggest gross negligence.

When it came time to merge these two strands and present his decision whether to prosecute, Comey made no reference to the legal standard he had articulated a few minutes earlier. Instead, he pulled a switcheroo, formulating a new legal standard based on the elements he says have been present in past cases where prosecutions have been brought for the mishandling of secret/classified information. Gross negligence exited stage left -- replaced by intent to harm the U.S., disloyalty, etc.

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