If It's Not One Thing, It's Another

It's one of the great paragraphs from the opinions of the Supreme Court.  It was written by Justice Sutherland in Berger v. United States.  Not surprisingly, I suppose, I've quoted it here before.  (No links.  Search the archives if you want to find the times I've done it.)

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

The obligation of the U.S. Attorney as described by Justice Sutherland is no less the obligation of the local prosecutor.  As with most noble ideals and aspirational goals, it is honored far more in the breach than in practice (though I imagine most prosecutors would say that's just the bullshit lie of a sleazy criminal defense lawyer, but I digress). But there are times.
We've seen it honored in, of all places, Maricopa County, when prosecutors from nearby counties (e.g., Sharon Polk from Yavapai County) denounced the abusive tactics of Andy Thomas and Sheriff Joe.
Now, from the wilds of Clarksville (Red River County), Texas (not far from Paris, Texas which is in Lamar County and all of which is northeast of Dallas and pretty close to Oklahoma), comes the story of another.  Let us, now, praise Nicole Habersang.
Ms. Habersang is an attorney in the Criminal Prosecutions Division of the Texas Attorney General's office.  She was assigned to the prosecution of Vergil Richardson.  Vergil was charged with drug possession after the local SWAT team broke down the door of a house he owned but did not live in (Kevin Callaway, Vergil's half-brother, lived there).
In any event, the SWAT team broke down the door, shot the dog (oops, wrong story, that was Missouri) searched the place, found what they say are drugs, and arrested everyone present including Vergil and his brother Mark who happened to be at the house at the time.  Both said they didn't know anything about the drugs, but hey, we know suspect are all guilty or they wouldn't be suspects, so who was gonna believe them?). And because there just isn't that much fun stuff to do in Red River County, the local prosecutor, Val Varley, went along on the raid waving a gun around.  Which makes him a witness, which is a no-no for a lawyer who wants to try a case.  So Varley removed himself and asked the Attorney General to appoint someone to prosecute.
Enter Nicole Habersang, whom we shall now praise.
She looked at the evidence and said (or thought)  something like (I don't actually know what she said, and she might never use words like this, but she probably should have),

Shit, there ain't no fucking way this turkey turd gets done.  What was going that asshole D.A.'s mind when he got that indictment?  Shit.

Or maybe not.  Maybe she spoke or thought something delicate like.

Oh my stars.  There really is no case here.  Whatever shall I do?

Whatever the language, though, the key is what she did next.  She moved to dismiss the charges for lack of evidence.  
Now, a moment's digression from the story.  We in the criminal defense business routinely decry not just lying cheating prosecutors but also judges who are, at heart and too often in action, prosecutors.  The cries come loud and long from prosecutors and judges.

Not so. Not so.

So when there's a prosecutor caught playing fair, she deserves praise.  
Like I say, let us praise Nicole Habersang, she who moved to dismiss the case because there was no real evidence that Vergil was guilty.
But when there's a judge like John Miller of the 102nd District Court (that's him to the right), well, that's a different story.  Miller refused to dismiss the case.  He explained.

Dismissal is not in the interest of justice.

Got that?  The interests of justice require that Vergil Richardson must be prosecuted despite the fact that the prosecutor believes there's not enough evidence to convict him.  And, remember, that when the evidence is insufficient to prove guilt beyond a reasonable doubt, the person charged is legally innocent.  So, let me rewrite and set off that last sentence, adding a reference to His Honor.
According to Judge John Miller of the 102nd District Court in Clarksville, Texas, the interests of justice require that a Vergil Richardson must be prosecuted. 
Let is, as I said, praise Nicole Habersang.  Lots of prosecutors would not do what she did.  Good for her.
And let us, equally, heap scorn upon Judge John Miller, who insists on the criminal prosecution of the innocent.


Thanks to Grits for the story and Friends of Justice and the Paris News for more detail.