Their oath was to the Constitution, not the President. Hope restored?
Um, that sounds like something I'd like to agree with, but I'm not getting it.
Link busted. Needs an http:// or no www.unfogged.com.
2. I am agreeing with you. If we were truly in the first phase of next next reich, these officers would find a way to enforce the policy of the leader, even if they had to fudge a little. Clearly this officer is doing the opposite. Who knows, he may even have voted for Bush.
Exactly: that's the same way I feel about the US Attorneys who got ousted. Given that they were Republican appointees to begin with, I probably disagree with them about almost any political issue you could name, but that doesn't mean they were going to fake up 'voter fraud' prosecutions without a basis.
the only thing necessary for the defeat of evil is for enough people, in the right positions, to simply do their jobs
I wish I had a job such that this statement applied to me. I think the fact that it doesn't means I probably made a bad decision or two somewhere along the line, but I'm not really sure where.
I wish I had a job such that this statement applied to me.
Tell me about it. The problem is, for someone with 'fight the corrupt system' instincts, is that the important people in this regard are the ones who make up the system.
I've thought about being a prosecutor, and always backed away from it because I don't think I could handle putting people away for drug crimes that I think shouldn't be crimes at all. But that sort of job is exactly where someone with concerns like mine should be; I don't know if that means I should just get over my squeamishness or what.
Maybe you can fight the system at night. With cool capes, and tights. Masks even, to hide your true identity.
I do already have a secret identity, although the costume design is going to get weird.
And Brock Landers is obviously the name of someone with a secret identity. Clark Kent, Peter Parker, Brock Landers...
The question is, what would his system fighting name be? One that implies both his politics and superpower.
All in all, the JAGs seem to have acquitted themselves fairly well through this whole mess. It's still taken 4-5 years to get to where we are now, and even this (a) still isn't good, and (b) might not have happened if the war in Iraq had been more successful and Bush was still riding high, but it's something.
13: I dunno. Possibly the CSRT this guy sat on had unusually weak evidence, but let's imagine it was pretty typical. There have been a lot more determinations that a detainee was an enemy combatant than that one wasn't.
It could be those were evidence based, but it could also be that CSRT panel members weren't doing their jobs.
There are certainly JAGs who have done good work, but I'm not sure it applies globally.
Too bad the show was canceled, or we could get him a guest spot.
8: the problem is, I don't know how much discretion individual prosecutors have. I mean: you could not do anything unethical, and you have some latitude in a given case, but I think prosecutors are evaluated by number of convictions and length of sentences.
But I don't actually have real knowledge of how it work--it probably varies quite a lot from office to office.
I thought about this in the immigration context--I wrote decisions whose results I didn't like at all, but overall I think I did more good than not, & I liked my job. But that's one thing when you're supposed to be the neutral decision maker; another when you're supposed to be a zealous advocate of a position you don't agree with. I'd be completely miserable as a DHS trial attorney.
14: I guess what I should have said is that the JAGs as a class have performed as well or better than any other group I can think of that's been faced with similar pressures. I'm sure there's been lots of cravenness too, but there aren't all that many JAGs and they seem to have produced a disproportionate number of the competence + moral courage stories that have become public.
14: I guess what I should have said is that the JAGs as a class have performed as well or better than any other group I can think of that's been faced with similar pressures. I'm sure there's been lots of cravenness too, but there aren't all that many JAGs and they seem to have produced a disproportionate number of the competence + moral courage stories that have become public.
I, of course, am still incompetent even at stuff like only hitting "post" once. But my employer is spending good money to improve that. IM ON UR CONTNIT, ATTENDIN UR CONFRENZ.
It's very reassuring that there are decent people on these CSRTs. The This American Life episode about them made it sound like they were hopelessly unjust.
20: Probably it doesn't comport with most theories of justice for the government to declare a do-over when it accidentally runs into a CSRT panel with a majority of decent people, though.
20: they were hopelessly unjust.
My favorite is the suspect who I'm pretty sure we found to be an enemy combatant based on a videotaped confession that stated his desire to become a martyr for jihad. The catch: he made the video after weeks/months of torture by high level al Qaeda members, and the "battlefield" we captured him on was a Taliban jail in Kandahar since he had been held since early 2000.
I don't think there's any comfort to be had, about the CSRTs, based on this affidavit. The good news is that the Supreme Court has a copy of the thing, in its packet of stuff to consider at the next conference (Friday, I think). I can't imagine that Mr. Justice Stevens is particularly impressed with the quality of the administrative process at work here. What does Kennedy think, that's the big question.
8: Your reasoning is why I became a prosecutor. As for drug crimes, many offices here have specialized units that handle all the felony cases. Many prosecutors just don't care to handle them because they're so boring -- same witnesses every time (the same 5-6 police officers in the police drug unit), same crimes, same penalties, etc. Plus, one of the reasons many of us got in the business was to help victims of crime seek justice, and it's tough to find a tangible victim in a coke possession case.
16: This is either a common misconception or things work very differently in other states. Here in NC, I have NEVER heard of a prosecutor being evaluated based on wins at trial or lengths of sentences. Generally, prosecutors are judged based on how well (read: quickly) they move cases through the system, which makes sense in a criminal justice system bursting at the seams. Reducing charges by means of a negotiated plea bargain is the way that nearly all felonies are resolved -- very few cases ever actually go to trial -- and this is simply the way it is. Remember the scene near the end of "Say Anything" where the defense attorney and the federal prosecutor are having lunch and negotiating the plea bargain for Diane Court's dad? That's pretty much how it goes, although it usually take a couple of weeks of conversations and posturing on the part of the defense attorney.
Winning or losing at trial is a crapshoot for any number of reasons -- how sympathetic or unsympathetic the defendant and victim are, the jury that is selected, and of course, the judge who presides. Also, a particular jury might be influenced by events completely outside a prosecutor's control -- think about trying to prosecute a rapist in Durham (or anywhere else in North Carolina) right now. Management in a DA's office by and large understands this.
We now return you to your regularly scheduled thread already in progress.
Damn, did I just kill this thread or what?
Yeah, I get squeamish about plea bargaining too -- I did some pro-bono criminal defense work once where I advised a client with what I thought was a defense that would probably have been successful at trial to take a plea that got him out of jail with time served, rather than waiting months more and risking a sentence of years. I gave him good advice, but he's got a felony conviction now, and I think he shouldn't. The amount of bargaining leverage prosecutors have is disturbing, and I'm uncomfortable about being in the position of exercising it.
27: You think your client shouldn't have a felony conviction because he didn't deserve one in some larger sense (as in, the crime shouldn't be a felony, or he didn't commit enough of it to be convicted of a felony)? Or because you might have been able to get him off using the defense you had in mind? Seems to me that the possibility of your ultimate success at trial was factored in when the prosecutor negotiated the plea -- to the benefit of your client.
On a broader level, I'm curious : Do you think that a system in which prosecutors did not have the ability to agree to lesser charges or specific sentences would result in more just outcomes for criminal defendants? I shudder at the ramifications of such a system.
Oh, and one last thing. You're spot on at number 8: if people like you (and, I expect to a slightly lesser extent, me) don't do the job, who will?
28: I can't be certain, but I think there were good odds he didn't do anything wrong at all. (The crime was knowingly buying a stolen car. The case against him was (1) the car was cheap, albeit not absurdly so; (2) there was a dent on the door characteristic of cars that have been broken into with some tool; and (3) he was an immigrant from the same country as the car theft ring that stole the car, but there was no evidence of a particular connection between him and the thieves.) I don't have significant experience in criminal defense, but that looks to me like nonsense, if we're really using a beyond-a-reasonable-doubt standard. But I couldn't tell him to spend another couple of months in jail, particularly without a guaranteed good result.
Now, I know the system would be unworkably overloaded if everything went to trial; I don't have a workable plan for getting rid of plea bargaining. But I'm really uncomfortable with it, and being involved with it on a daily basis would make me unhappy.
29: Your case is a perfect example of why good lawyers with common sense values need to be prosecutors. In the great state of North Carolina, most prosecutors would take a misdemeanor plea to probation on that case and move on to the next (assuming no prior criminal record). I know I would have done it in a heartbeat and never looked back or had a second thought about it.
Having said that, local customs vary widely on this sort of thing, and not all prosecutors would agree. Ergo, your comment 8 and the last sentence of my comment 28.
Hey, where's the Hating-on-the-Roberts-Court post already?
31: I was already loaded up to write "Hey, what's up with the Roberts Court siding with a murderer and against families who want their kids to go to integrated public schools," but I'm feeling quesy and may go home early.
28: out of curiousity (don't answer if you prefer not to), was he naturalized, & if not did you look at the immigration consequences? I get the sense sometimes that criminal lawyers & prosecutors aren't aware that e.g. a "nolo contendere" misdemeanor plea which results in no jail time & is supposed to get erased from your record after probation ends for state law purposes, still might qualify as an "aggravated felony" under immigration law.
The argument against the plea bargain system is that it substitutes prosecutors for judges and juries. It enables us to grossly over-criminalize things & make sentences too harsh, and then the prosecutor uses that as a threat to get a conviction & set the sentence even in cases where the evidence is weak, where there are exclusionary rule problems, even where the suspect is actually innocent.
I don't see a workable substitute--there's no guarantee that if it didn't exist we'd lessen sentences as opposed to just building more prisons--but that's the argument against.
No -- he was legally in the country, but with some status short of a green card, and was going to be deported right out of jail. He didn't perceive this as a terrible hardship, though -- after six months in jail, his take was along the lines of "Fuck the US, I'm going home."
I figured. Unfortunately a lot of lawyers aren't as good as you (plus Congress has been known to retroactively change the immigration consequences of a plea).
33: K, can you provide some examples of misdemeanors that might qualify as an aggravated felony for immigration purposes? It's been my experience that it's very difficult to get ICE to get interested in anything less than a full-fledged felony, at least here in NC.
Per your 2nd paragraph, I've heard the argument, but I never cease to be amazed by it. The weaknesses in the state's case are taken into account when negotiating the plea. Innocence aside, that is as it should be. In my mind, all of these issues are premised upon the good faith belief on the part of the prosecutor that the defendant actually committed the offense. The idea that it's somehow a gross appropriation or power by a prosecutor to offer a reduced charge or a reduced sentence to someone for pleading guilty is just nonsensical to me, but hey -- I'm a cog in the machine, right? I can't be expected to know if the machine is malfunctioning! :)
34: Ah. Well, that may explain why he couldn't make bond, and why he agreed to a felony. Was deportation always a known end result here, felony or no?
37: Not for an acquittal -- I'm not sure what the consequences of a misdemeanor conviction would have been.
In my mind, all of these issues are premised upon the good faith belief on the part of the prosecutor that the defendant actually committed the offense.
I have the strong impression that this is conventionally dispensed with, at least with regard to the offense being bargained down from.
You just told LB you'd accept a plea for a client she said she thought might well be innocent.
And a key to the argument is that the sentences our criminal laws impose for various crimes is excessive and unjust. If you don't believe that there's anything wrong with the incarceration rates & penal codes in general, then plea bargaining is a net benefit to defendants, & they are always free to say no, so what's the harm? If you do, it's an essential part of a scam to lock too many people up for too long without actually being willing or able (as a matter of either evidence or rersources) to convict them in court.
On ICE, I don't know what triggered the decision to prosecute. I saw cases of them arguing that Liberian refugees & people who'd been here since they were 6 weeks old should be deported for simple drug possession, and plenty of cases where the conviction did not result in jail time. But there may have been many more cases where they passed it up. Their decisions were a complete mystery to me.
A misdemeanor that might qualify as an aggravated felony would be a first conviction for simple possession of cocaine or a second conviction for simple possession of marijuana--offenses that might be misdemeanors under state law but punishable as felonies under the controlled substances act. It was pretty sketchy, the Supreme Court may no longer let them do that.
39: What, exactly, was the point of your first sentence?
In my mind, all of these issues are premised upon the good faith belief on the part of the prosecutor that the defendant actually committed the offense.
That's not how most people expect prosecutors to work. They're prosecutors, not judges. Just like the defense attorney doesn't refuse a client he thinks is probably guilty.
The idea that it's somehow a gross appropriation or power by a prosecutor to offer a reduced charge or a reduced sentence to someone for pleading guilty is just nonsensical to me
The way I've seen it portrayed is that the prosector tells the defendent "We can do this the easy way or the hard way. The hard way means you go through a trial and you probably get convicted for a harsher sentence because we're going to make you look like a total scumbag who is obviously guilty". The expectation among many people that prosecutors will do their best to withhold evidence that helps the defendant (being one side of an adversarial system and all) makes this a convincing threat.
41: A prosecutor can't ethically prosecute someone they believe is innocent, even via a negotiated plea agreement.
As for your other point, well, I understand that the perception is fairly widespread. That doesn't make it true.
"We can do this the easy way or the hard way. The hard way means you go through a trial and you probably get convicted for a harsher sentence because we're going to make you look like a total scumbag who is obviously guilty."
Sorry, this was supposed to include some element of "If we go to a trial it will be a big waste of everyone's time, and nobody wants to bother with all that when you'll be found guilty anyway."
40: if you'd been assigned to that case, would you have had the option to just drop it w/o any charges or trial? I assume prosecutors who get clear, affirmative, evidence of actual innocence have that option, but that they don't go looking for it or agonizing about that possibility--do you go looking at individual cases & say, "you know, this evidence is pretty weak, he could be innocent, & if I were a juror there's no way I'd convict"?
Do you look at each case & decide whether you thought a defendant was more likely than not guilty before making a plea offer?
43: Sigh. Actually, that's what defense attorneys tell prosecutors all the time. "C'mon, why do you want to waste your time to take this case to trial? Just make us a reasonable offer and we can all get on with our lives!"
Sometimes a defense attorney will say that a case has to go to trial, but that's the exception, not the rule. In the majority of criminal trials I've seen or been a part of, the defendant desperately wants to plead to a lesser charge (or the existing charge for a lesser sentence) and the prosecutor doesn't think that's appropriate, for whatever reason.
The other thing is that indigent defense counsel often lacks the resources to try cases adequately. That's not the prosecutors' fault, but it screws up the the incentives on plea bargaining some more.
44: I agree with nearly everything you say here. The only problem I have is with "if I were a juror there's no way I'd convict," because I know more than a juror ever will -- inadmissible (but true) facts, etc. And frankly, whether or not I can convince a jury of a particular defendant's guilt is simply not a part of the question of whether or not a defendant actually committed the offense. If I believe the latter, the former is just an obstacle I have to overcome to get to justice.
Now, this analysis leaves out victim input into the decision to prosecute and the plea bargain process, but it's a start.
And frankly, whether or not I can convince a jury of a particular defendant's guilt is simply not a part of the question of whether or not a defendant actually committed the offense. If I believe the latter, the former is just an obstacle I have to overcome to get to justice.
Right, but it goes both ways. You get circumstances (say, where the same prosecutor prosecutes two defendants under inconsistent theories of the same crime -- in trial A arguing that defendant A was the trigger man, and in trial B arguing that defendant B was the trigger man.) where a prosecutor may decide that they can convince a jury of the defendant's guilt beyond a reasonable doubt despite the fact that it's impossible that the prosecutor is convinced of the defendant's guilt without a reasonable doubt.
I've been unequivocally taught that it it's not unethical for a prosecutor to pursue a conviction in a case of that nature, which bothers the hell out of me.
49: Agreed. That boggles. But I will say that such things are exceedingly rare, in my experience.
Katherine is 100% right on this. The question isn't really 'felony for immigration purposes' as much as it just is 'renders you a person of suspicious moral character.' And what matters is the statute violated, not the punishment meted out.
So, for example, a 19-year-old is with some friends at a school. They get busted by the cops because one of his friends has marijuana. They all get charged with possession + being near a school, and because it's pretty clear the kid isn't a dealer, they allow him to pay a fine and do some community service even though he could be hit with much worse. Grateful kid & parents take the plea, he goes on with his life.... no harm, no foul. Until sometime later he tries to immigrate, or adjust status to a legal permanent resident and he finds he's inadmissible to the U.S. as a drug dealer. The amount of a shoplifting theft can make a difference between someone having no problems and someone getting deported.
It's the "existing charge for the lesser sentence" that screws people, because USCIS doesn't count whether someone was paroled, but what the sentence could have been.
It's not really the prosector's fault, nor the defense attorney's, since what most everyone cares about is time served. But since ICE pretty much relies on a system of 'we'll deport them as they screw up', a plea can jeopardize someone's status.
51: Ouch. Yeah, that sucks. Although I will say that, on those bare facts, I can't see a 19 year old getting convicted of a felony in my jurisdiction, absent priors.
And prosecutors could really use some info on what does and does not get someone deported. Like I said above, I've seldom heard of any prosecutor around here having much luck getting ICE interested in anything less than a state felony.
The inadmissible thing doesn't quite line up on felony/misdemeanor lines, though it's close enough for most purposes..
Drugs are the thing that due to the whole War on Drugs stuff, doesn't just make someone inadmissible, but usually unwaiverable, too. So chances are the kid wouldn't get deported for the drug offense, because ICE doesn't care to spend the resources. But maybe years down the road he marries an American, and they file for his green card so he's legal. He has to provide a police report, so he does so, and they say, sorry, you can't adjust status. And now that we know where you are.... deportation proceedings can start.
Under most circumstances, if the crime was a long time ago, or a one time affair, and the person's married to a citizen, they can apply for a waiver based on the extreme hardship to the citizen if they had to move to the foreign country. But drug crimes aren't waiverable.
53: Thanks for that (depressing) summary. Sobering.
It's very weird, because while a thief or a violent person might not be granted a waiver (it really depends on the consulate), they'll be able to apply for it at least. More than the x number of grams of pot? Can't even apply.
What's weird about that, Cala? We're at war, and the drugs are our enemies. Those caught with drugs in their possession ought to be grateful we don't charge them with treason.
What if the people arrested were detaining the drugs for the purpose of patriotic interrogation? ("Talk, damn you! Oh, a tough guy, eh? Let's see if you'll talk if I set you on fire!")