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  • US Prosecutorial Reform

    Posted by Jonathan on July 27th, 2007 (All posts by )

    Mark Steyn, reflecting on the brutal prosecution of Conrad Black, makes excellent suggestions:

    1) An end to the near universal reliance on plea bargains, a feature unknown to most other countries in the Common Law tradition. This assures that a convicted man is doubly penalized, first for the crime and second for insisting on his right to trial by jury. The principal casualty of this plea-coppers’ parade is justice itself: for when two men commit the same act but the first is jailed for the rest of his life and dies in prison while the second does six months of golf therapy and community theatre on a British Columbia farm and then resumes his business career, the one thing that can be said with certainty is that such an outcome is unjust.
     
    2) An end to the reliance on technical charges such as “mail fraud” and “wire fraud”, whereby you’re convicted not for the crime itself but for sending a letter or authorizing a bank transfer in the course of said crime. This gives a peculiar dynamic to the presentation of the evidence: the jury spends months hearing about vast schemes and elaborate conspiracies but in the end is asked to rule only on one narrow UPS delivery or faxed letter, the sending of which is not in dispute, only the characterization thereof. If the non-competes are fraudulent, prosecute the fraud, not the mailing of a memo to Jim Thompson while he’s on vacation at Claridge’s in London.
     
    3) An end to the process advantages American prosecutors have accumulated over the years – such as the ability to seize a defendant’s funds and assets and deprive him of the means to hire good lawyers and rebut the charges. Or to take another example: Unlike the Crown in Commonwealth countries, in closing arguments to the jury the US government gets to go first and – after a response from the defence – last. This is an offence against the presumptions of English law: The prosecutor makes his accusation, the accused answers them. Every civilized legal system allows the defendant the last word.
     
    4) An end to countless counts. In this case, Conrad Black was charged originally with 14 crimes. That tends, through sheer weight of numbers, to favour a conviction on some counts and acquittal on others as being a kind of “moderate” “considered” “judicious” “compromise” that reasonable persons can all agree on. In other words, piling up the counts hands a huge advantage to the government. In this case, one of the 14 counts was dropped halfway through the trial, and another nine the jury acquitted Conrad on. But the four of the original 14 on which he was convicted are enough. One alone would be sufficient to ruin his life. This is the very definition of prosecutorial excess. Why not bring 20 charges or 30 or 45? After all, the odds of being acquitted of all 45 are much lower than those of being acquitted of 30 or 40.
     
    5) An end to statute creep. One of the ugliest features of American justice is the way that laws designed to address very particular situations are allowed to metastasize and be applied to anything a prosecutor fancies. The RICO statute was supposed to be for mobsters and racketeers. Conrad Black is not a racketeer but he was nevertheless charged with racketeering. And, while the prosecutorial abuse of RICO is nothing new, the abuse of the “obstruction of justice” statutes in this case are unprecedented. Hitherto, the only obstruction charges that could be brought in regards to extra-territorial actions involved witness-tampering. In that security video at 10 Toronto Street, Conrad Black may be doing all manner of things, but he’s not tampering with any witnesses. Nevertheless, a hitherto narrowly defined statute has now been massively expanded to enable prosecutors to characterize actions by foreign nationals on foreign soil in a way never contemplated by the relevant legislation. Statute creep is repugnant and should be stopped.
     
    6) An end to de facto double jeopardy. Conrad Black is likely to wind up back in court to go through all the stuff he’s been acquitted of one mo’ time, this time in a Securities and Exchange Commission case. That would be a civil case, not a criminal one, and the US Attorney insists that the SEC is an entirely separate body. Oh, come on. The US Attorney and the SEC are both agencies of the US Government. They work in synchronicity. It’s not the same as Nicole Brown’s family suing OJ after the state’s murder case flopped. In this instance, two arms of the same organization are bringing separate cases on exactly the same matters. That’s double jeopardy – or, in fact, given the zealousness of the SEC, triple and quadruple jeopardy.

    The problem is that there is little constituency for such reforms. The police, jailers, courts, government lawyers, and legislators (who have nothing to gain politically by opposing the other groups) aren’t likely to do anything. The people who get victimized by prosecutors too often end up ruined — broke, jailed. Even if they emerge from their ordeals with some of their resources intact, most of these people probably don’t want to attract any more governmental attention. And many voters take the position that people who are convicted of crimes deserve whatever gets done to him. Prosecutorial reform may be like the issue of prison rape in that nothing will change until many more people come to see themselves as potential victims.

    (via Maimon Schwarzschild)

     

    2 Responses to “US Prosecutorial Reform”

    1. Lexington Green Says:

      This won’t happen.

      Who has an incentive to pass any law that would do this?

      Then run against an opponent who says you are soft on crime?

      “A liberal is a conservative who has been prosecuted.” That is a tiny minority. Most middle class Americans think criminal prosecutions happen to black and brown people and rich guys committing “crime in the suites” — not to them. And they are mostly right.

      There is no political motivation whatsoever for any reform such as you suggest to happen. To the contrary.

    2. Jonathan Says:

      Well, yes. This was the point of my concluding paragraph. I think it’s still very important to make the pro-reform case, however.