The Snowdens of Yesteryear

I've told this story before.

It was back when I was Legal Director of the ACLU of Ohio, and I was to be debating some hot-shot law school professor from some hot-shot law school and about the USA Patriot Act and other post 9/11 measures that involved ceding liberty for the illusion of greater safety.  And, not incidentally, we weren't to know the details, because if they told us, they'd have to kill us.

National security, don't you know.

I'd done this gig before.  I talk about ephemeral benefits and how all these increased powers to protect us against terrorists are actually being used to catch drug dealers and on-line gamblers while invading the privacy of ordinary folks and how the government justifies all this by scaring the public with hypothetical stories of the horrors that could have been prevented and maybe were (but who knows because if they told us the truth it would have given away the store to terrorists) so it was all worth it.
And then he'd talk about protecting America and how we have to give up a bit of privacy for security in this new age.

So we flipped a metaphorical coin, and he went first.  And completely changed the script.

He didn't talk about safety or security or trade offs we had to make because 9/11 changed everything.  Instead, he said that the Pres (it was Shrub at the time, but that was irrelevant to the position he was staking out) had, per the Constitution, plenary unreviewable power to do whatever he thought best in regard to national security and defense.  We had no right to know what he was doing.  Congress had no oversight authority and any it attempted to exercise was unconstitutional.  Ditto the courts.  If we didn't like what he was doing (although we weren't to know what it was) our remedy was to vote him out of office at the next election and replace him with someone else who was to act in secret but whose acts (again unknown to us) we preferred.

Really, that's what he said.  Law degrees, government experience, law review articles, and all.

Which brings me to Edward Snowden and NSA and government secrecy and whistleblowers and finally to His Barakness who said,

I welcome this debate.  And I think it's healthy for our democracy.  I think it's a sign of maturity, because probably five years ago, six years ago, we might not have been having this debate.  And I think it's interesting that there are some folks on the left but also some folks on the right who are now worried about it who weren't very worried about it when there was a Republican President.  I think that's good that we're having this discussion.

Which is, of course, vacuous bullshit of the highest order.  It might even be true except that it's almost wholly content free.  And where there is content, it's misleading.

See, there are these secret surveillance programs where they get everyone's metadata from Verizon and would never never get more and you can be sure because they said that everyone in Congress knows about it and knew about it and they all think it's hunky-dory including those who've been trying to complain about without revealing anything and those who despite knowing all about it are wholly ignorant of it.  And there's strict oversight by the courts which simply say, "how high?" when told to jump.  And it's all a secret from the American people because if we know, then so do the terrorists and if they know Verizon makes their data available to the feds then they'll switch their iPhones to AT&T and that'll make the whole thing worthless.

And ditto for the Prism thing and reading your e-mails and text messages and watching the youtube of your kid rolling around on the carpet in front of the TV or striking out at little league or performing in the school assembly or giving instructions on how to turn sudafed into speed.

And so while thousands urge President O to pardon Snowden as a national hero and others urge his assassination as a traitor (drone strike on Hong Kong, anyone?) DOJ plans simply to turn him into the next Bradley Manning and put him in prison forever - if they can just get their hands on him.  Because he opened the door to the candy store.

But the debate?  He welcomes it.  It's "healthy for our democracy."  Because, you know, the public should get to weigh in on and evaluate the trade-offs we're making between safety and security.  EXCEPT, OF COURSE, THEY HAVE NO RIGHT TO KNOW ANY OF THIS AND HAVE NO SAY.  (Or should that last have been in microscopic print like the fact that one side effect of the prescription drug advertised on TV is that it might turn you into a jellyfish - or a psychopathic killer?)

Over at Popehat, Clark wrote "Edward Snowden, F____ yeah!" which Matt Brown echoed.  Scott Greenfield thinks Snowden's mostly a distraction from the real issue - our lost privacy, a position aligned with Mark Bennett's call for action.

So what’s the solu­tion for those of us who are not will­ing to sell lib­erty cheaply?

We could take the Fried­man approach and say “this far but, golly gee, no far­ther please” in the assump­tion that by giv­ing up some free­dom we can pre­serve the rest. But this approach is doomed to fail­ure because even if we suc­ceed in fight­ing the last war, some­thing else will come along that jus­ti­fies, in the minds of the booboisie, less free­dom. Mean­while, the Fried­man approach trains the 99% to give up essen­tial free­dom for tem­po­rary safety, teaches the gov­ern­ment that we will not push back, and so has­tens liberty’s even­tual demise.

Or we could say “this will not stand” and teach the booboisie to push back. We might never get more than 50% on the side of lib­erty in the face of fear, but we do not need a major­ity to prevail.

What we do need, though, is to know that there's an issue.  Which is where Snowden comes in.  
I don't know, maybe he did jeopardize national security and a nuclear weapon will flatten Sioux City, Iowa because the FBI and NSA didn't find out that some guy with an area code in Saskatchwan has been texting to someone in  Portales, New Mexico.  Frankly, it doesn't seem likely.  I mean what he really did is confirm what the more cynical of us have understood for some time.

What they can, they will.
What power they have, they will abuse.
 

Justice Roberts, with whom I rarely find myself in agreement (and would he stop with that smirky smile, already), got this much exactly right in U.S. v. Stevens.

But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. 

What's true of the First is equally true of the others.  But it's true only if we push back.  And we can only push back effectively if we know where the front lines are.  Which is what Snowden and the Guardian have just told us.  Maybe.  Or maybe their the middle lines they've revealed.  Hell, it might even be the backfield.  But it's a starting point.

Let the debate Obama falsely claims he wants, begin.  And then throw it aside, because we don't need to talk about it.  We need to rise up and say "NO MORE."

Or we can join with Yossarian and ask

Where are the Snowdens of yesteryear?

So What If He's Innocent. We've Got Rules To Obey.

Here's the deal. 

Jonathan Montgomery did not sexually assault Elizabeth Coast.  That wouldn't be newsworthy (I mean, lots of people didn't sexually assault her; in fact, if I read the news story right, nobody did), except that Montgomery has been in prison for 4 1/2 years for the non-crime.  Mila Mimica and Andy Fox tell the story for WAVY.

Jonathan Montgomery was sentenced by Hampton judge Randolph West to 7.5 years in prison in 2008 for the 2000 sexual assault of Elizabeth Coast. Last week, West tossed Montgomery's conviction on the grounds that Coast had fabricated the assault story.

It was learned that Coast, who worked with the Hampton Police Division, confessed to a detective 'that she lied about a sexual assault... lied at the trial... and sent an innocent man to jail."

Coast has been charged with perjury.

Happy ending.

Or not.

See, what's supposed to happen now, actually what was supposed to happen a week ago, is that the wholly innocent Jonathan Montgomery, the man who's served well over 4 years in prison for a crime that did not occur, should be released from prison with apologies and best wishes and what can we do to make up for this.

He got the apology from Judge West.  He got the order from Judge West to let him out of prison.

What he didn't get was out of prison.  Because the Attorney General of the Commonwealth of Virginia, Ken Cuccinelli, says they can't let the innocent guy out.  Not that he isn't innocent or anything.  Just that the judge didn't have the authority (the legal word is jurisdiction) to find him innocent and free him.

Even though he's innocent.  Even though there was no crime.

The problem is that it's been more than 21 days since Montgomery was convicted.  Which means he has to stay in prison even though he's innocent, even though there was no crime.

"Virginia law will not allow the immediate release of Mr. Montgomery, and the attorney general is obligated to follow the law," said Brian Gottstein, the attorney general's director of communication. "Our research shows that the order from the trial court to vacate the three and a half year-old conviction appears void on its face, as the trial court does not have jurisdiction to enter the order according to Virginia's 21-day rule. Authority to get around the rule -- to pardon or commute the sentence -- does not rest with the attorney general."

Rules, after all, are rules. I mean, think what might happen if Virginia started letting innocent people out of prison right and left just because they're innocent?   Then Texas might have to let Megan Winfrey go even though she acted suspiciously.  Then the feds would have to do it.  Soon innocent folk all across the country would insist that they should be let out of prison.

Before you know it, we'd conclude that only the guilty should be punished.  And that maybe close enough for government work isn't really close enough for government work.

Oh my stars and whiskers!

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H/t Radley Balko

Clap If You Believe in Fairies

There are, at the very least, three views of the role of judge.

• There's the Balls and Strikes model advocated by John Roberts at his confirmation hearing.  The pitch is a strike or it isn't. There are no ambiguities, no doubts to be resolved, no judgment to be applied.  All that judge needs is good eyesight and absolute integrity.  It isn't just objective, it's virtually content free.  Since there are no questions, there's no need for answers.  It's nonsense, of course, and nobody on the bench for more than an hour or so has ever actually applied that model.  But a whole lot of people endorse it, at least in public pronouncements.
• There's the rational calculus model advocated by Antonin Scalia.  The one that says judges must carefully avoid fairness or conscience.  Nice things those, but as he argued in a lecture at Harvard (which became an article in the University of Chicago Law Review - take that, Harvard), the "Rule of Law[ is a] law of rules."*  No room in it for such niceties as humanity, morality, fairness, whatever.  If it isn't a rigid rule, it should be eschewed.  There's an apparent rigor to that model appealing to the self-righteous and hyper-intellectual, but it's also a sham.  It's not just that the rules can't really apply to every case (though they can't; there will always be outliers).  It's that even the rigid rules he favors are themselves subject to interpretation.  The objectivity he craves simply doesn't exist in the real world of judging or justicing.
• And there's the case model, grounded in the Anglo-American heritage of common law.  Judges act case by case.  They look to rules, statutes, constitutions, precedent.  Then they look at all the facts and circumstance.  This is closest to the traditional law school model by which the law is applied through analogy and develops incrementally.

Whether one of these or another, pretty much everyone agrees that, at least in principle, judges should follow the law without fear or favoritism.  Maybe they should temper it.  Maybe they should find ways to bend it a bit this way or that to achieve something like equity or fairness or even justice (whatever that might be).  Maybe they should look to purposes or goals or societal values or national consensus or legislative history.  Or maybe not.  But they ought to be looking to the law.

For the rest of us, it's a bit different.

Criminal defense lawyers, we have but one job: To defend our clients.  (No, I'm not going to get involved broader debates about what's involved or how to explain or consider that here.  If you must read about that, search the archives.)  Hell, that's the job of lawyers in general.  To act zealously (even in Ohio where the Supreme Court has specifically and intentionally determined that zealous representation is not called for) in defense of our clients, albeit within the bounds of the law.

And then there are prosecutors.  Theirs is the unique job because although they represent the government, their role is, actually and specifically, to seek justice.

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.

That's from Justice Sutherland's opinion for the Court in Berger v. United States.

A key part of that obligation is the ability to exercise discretion.  Prosecute this guy, not that one.  Bring these charges, not those.  The idea is not to seek advantage, not to demand however much can be demanded, but rather to go after what's right under the circumstances.  Sure, they're constrained by the law as are all of us in the system.  What they don't do, what they aren't supposed to do, is hide behind it.  The law can never be their excuse for not doing the right thing.  The prosecutor must never say, in the face of injustice (which is much easier to recognize than justice),

My hands are tied.

In 1946, the people of Louisiana strapped Willie Francis in the electric chair for the murder of Andrew Thomas.  He strained, he struggled.  But he didn't die.  Before they could do it again, the US Supreme Court stepped in.  And then stepped out.  By a vote of 5-4, the Court said that Louisiana could electrocute Willie Francis one more time.  And maybe, just maybe, more times after that.  You know, until they got it right.

There is no majority opinion in Louisiana ex rel. Francis v. Resweber. Justice Reed wrote for himself, Chief Justice Vinson, and Justices Black and Jackson.  Justice Burton's dissent was joined by Justices Douglas, Murphy, and Rutledge.  The swing vote, the fifth vote to kill, came from Felix Frankfurter.  Foreshadowing Scalia's trashing of the relevance of conscience, fairness, and justice (though unlike Nino expressing his revulsion at the need to do so), but relying solely on a cramped and narrow, constricted model of how a Supreme Court justice should rule, Frankfurter wrote a concurring opinion.

I cannot bring myself to believe that for Louisiana to leave to executive clemency, rather than to require, mitigation of a sentence of death duly pronounced upon conviction for murder because a first attempt to carry it out was an innocent misadventure, offends a principle of justice "rooted in the traditions and conscience of our people." See Snyder v. Massachusetts, supra, at 105. Short of  the compulsion of such a principle, this Court must abstain from interference with State action no matter how strong one's personal feeling of revulsion against a State's insistence on its pound of flesh.[**] One must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation. Strongly drawn as I am to some of the sentiments expressed by my brother BURTON, I cannot rid myself of the conviction that were I to hold that Louisiana would transgress the Due Process Clause if the State were allowed, in the precise circumstances before us, to carry out the death sentence, I would be enforcing my private view rather than that consensus of society's opinion which, for purposes of due process, is the standard enjoined by the Constitution.

Of course, as Gilbert King makes clear in his terrific book, The Execution of Willie Francis: Race, Murder, and the Search for Justice in the American South, Frankfurter was wrong on the facts.  The failed exectuion was not "an innocent misadventure," and it's very far from clear that the "consensus of society's opinion" was that Francis should be electrocuted again.  But that's a quibble. 

So, in 1947, Louisiana got it's pound of flesh.

Frankfurter's acquiescence in the ultimate killing of Willie Francis, however grudging and mean and misguided and misinformed, was grounded at least in a recognizable view of his job. He was, he thought, to apply the law as he understood it even if he hated it. He could not bend it to achieve any end, no matter how repugnant the law or its application might be.  After all, despite having the title "Justice," his job was, as he understood it, entirely divorced from the eponymous concept.

Which brings us, at last, to North Carolina.

From Brad Heath in USA Today.

A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.
Many of them don't even know they're innocent.
The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun. The problem is that none of them had criminal records serious enough to make them felons under federal law.

It sounds more callous than I mean it to when I say that these things happen, but they do.  This isn't a case of wrongful convictions but, rather, of a court (one of the most pro-prosecution in the nation) revising how certain sentences from North Carolina courts should be understood by federal courts. Pardon the long quote here, but it's about the only way to make this clear. Brad Heath again, explaining the felon in possession law and what happened.

Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.
Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.
For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.
Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.

So what you have is a situation where some number of folks (and frankly, it might be hundreds) were properly convicted of what it has just recently been determined wasn't a crime.  As I said, nobody to blame really, and these things happen.

The question is what now.

The obvious answer is to identify all the wrongfully convicted and, as quickly as they're identified, undo the convictions.  In the first instance, that's kind of what happened.

The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.

But then there are all those guys doing time.

Says the Justice Department,

That's for us to know and them to figure out.

Oh, and they can't be released.

Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.

Because, you know, um, you know, it's because, er, what was that again?

I'm probably not being entirely fair.  The folks from Justice Heath quotes all talk about how they'd like to find a way to provide some relief to these folks but how they just can't figure a way that doesn't involve just going to court and saying,

These guys are innocent and we fucked up and so cut them loose ASAP.  Or sooner.

Besides, guys like Terrell McCullum may be innocent, but that doesn't mean they shouldn't be convicted and imprisoned.

"At most," the Justice Department said in an April court filing , McCullum "has become legally innocent of the charge against him." In other words, the law may have changed, but the facts of his case didn't — he did possess the gun, and he had a criminal record — so he isn't entitled to be released.

Even though he's innocent.

Because they need that pound of flesh.

Frankfurter would have understood, perhaps have quoted Shylock this time.

My deeds upon my head! I crave the law.

Scalia would be proud.

Me, I'm with Portia.***

The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy.

And there is that thing about the job of prosecutor being to seek justice, not convictions.  Of course, Tinkerbell is fiction.

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*Which is not the same, or even in conflict with, the contrast between the Rule of Law and what I call the Law of Rule.

** The allusion by the Jewish Frankfurter to Shylock's demand in The Merchant of Venice for a pound of Antonio's flesh as provided by contract.

What judgment shall I dread, doing no wrong?
You have among you many a purchased slave,
Which, like your asses and your dogs and mules,
You use in abject and in slavish parts,
Because you bought them: shall I say to you,
Let them be free, marry them to your heirs?
Why sweat they under burthens? let their beds
Be made as soft as yours and let their palates
Be season'd with such viands? You will answer
'The slaves are ours:' so do I answer you:
The pound of flesh, which I demand of him,
Is dearly bought; 'tis mine and I will have it.
If you deny me, fie upon your law!
There is no force in the decrees of Venice.
I stand for judgment: answer; shall I have it?

*** Also  The Merchant of Venice.

The Men in the White Hats

Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences.  In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.

That's from then Chief Justice Tom Moyer's dissent in State v. Fears (1999).  Fears was appealing his conviction and death sentence.  It was another in a string of cases in which the Ohio Supremes recognized that prosecutors repeatedly engaged in misconduct and warned that one of these days they might do something about it.  Moyer quoted a passage from Judge Jerome Frank's dissent in United States v. Antonelli Fireworks Co., Inc., though he deleted a bit including the choice reference to "The Walrus and the Carpenter."  Here's the whole passage (except for a footnote I'm deleting).

This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, "Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of `disapproved' remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial." Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court — recalling the bitter tear shed by the Walrus as he ate the oysters — breeds a deplorably cynical attitude towards the judiciary.

Cathy Cook, arguing another death penalty case in the Ohio Supreme Court a week after Fears came out, quoted Moyer's words (though not Frank's, I don't think), and told the Justices,

You've got to make them lose to make them learn.

The court didn't make them lose.  Cases since then demonstrate clearly that the prosecutors didn't learn.

It's a recurring problem:  Prosecutors cheat.  Court's say they're being bad boys and girls.  Prosecutors cheat some more. Mostly it's not to convict people they think are innocent. Indeed, it's beyond the comprehension of most prosecutors that an innocent person can be charged with a crime.

As former Attorney-General Ed Meese said,

If a person is innocent of a crime, then he is not a suspect.

Prosecutors believe that.  And with exceptions, they don't want to learn they're wrong. They particularly don't want to learn it after someone's been convicted.  That's why they resist the DNA testing that might prove they made a mistake.  That's why the continue to lie and stonewall and make up new theories to explain away the evidence they hid or the exonerating DNA tests.

As I say, there are exceptions.  But that's the norm.  There's bad guys and good guys and they're the good guys.  Our clients, well, they wouldn't be our clients if they weren't bad guys.

But they're our clients, innocent unless and until proved guilty.  And even after that they're our clients and we fight for them because that's what we do.  We defend.  We defend the ones who did it and the ones who didn't. 

It's supposed to be different for the prosecutors.  Their client isn't the victim of a criminal act (though many think it is).  Their client is the body politic: The township or the city or the county or the state or the whole damn US of A.  And that means that their client is the system of criminal justice and it means, more precisely, that their client is Justice (note the uppercase J) whatever the hell Justice is.

Back in 1935, writing in Berger v. United States, Justice Southerland explained the idea.

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.

Daniel S. Medwed, lawprof at the University of Utah and author of an important but flawed new book, Prosecution Complex: America's Race to Convict and Its Impact on the Innocent, says they're supposed to be "ministers of justice," and that's about right. But of course it's fantasy to imagine that they are.*

Medwed's basic idea is that it's the rare prosecutor who cheats voluntarily.  Instead, they cheat and fabulate and stonewall because they don't really know what they're doing and they can't help themselves and because it's how things are.  It's not because they can't make mistakes but because the prosecutorial culture prevents them from imagining that a mistake actually got made.  It's difficult to admit you were wrong.  It's especially hard when rewards are all for convictions and upholding them.  And it's harder still when nobody but sleazebag criminal defense lawyers and their shithole clients says they might be wrong.

And yet, of course, they sometimes are.  Despite Ed Meese's proclamation, even the most adamantine prosecutor knows that mistakes can happen.  Factually innocent people can be charged with crimes.  Factually innocent people can be convicted of crimes.  And factually innocent people can find themselves needing to undo their convictions. Medwed, who sits on the Board of Directors of the Innocence Network and the Rocky Mountain Innocence Center, sees that as not just a problem, but as the problem.  And much of the cause, he says, is that prosecutors simply fail in their efforts to be those ministers of justice.  Which would rather beg the question, except that Medwed doesn't let it.

There are, after all, prosecutors who show a real interest in prevention and correction of error.  There are (despite the impression I probably give too often here) individual prosecutors who strive to act with integrity and decency.  And many who achieve it.

And yet.

Look, the system gets it wrong more often than it should.  There are all sorts of reasons and no shortage of villains.  But key is the prosecutor.

Why is that?  Why is it that prosecutors charged with doing justice instead do convictions?  And what can be done to change that?  The last of those questions is at the heart of Medwed's book, but it can't be answered without examining the first questions.  So Medwed goes at prosecutor failures before trial, during trial, and after conviction.  Three parts, each with three chapters.

The pre-trial problems he finds involve bringing charges against people who maybe didn't do it; not turning over evidence that throws doubt on the guilt of those they charge, and plea bargaining with those who might actually be innocent.  The trial problems come from coaching witnesses and using snitches, relying on faux forensics, and various sorts of improper comments during closing arguments.  The post-trial problems are resistance to pursuing claims of factual innocence, obstructionist responses to requests for DNA testing, and an unwillingness to believe and acknowledge actual proof of innocence.

So what else is new?

Actually, it's good stuff.  It's not that you didn't know.  At least, you knew if you were in the trenches as a criminal defense lawyer.  And you knew if you were in the trenches as a victim of the prosecutorial mindsets that drive these things.  And you knew, frankly, if you'd just been paying attention.

But too many don't know.  And among those who don't are, far too often, the prosecutors themselves.  

Here's the short version.

• Prosecutors fail to pursue innocence with vigor and twist and cheat to convict and bend and obstruct to uphold convictions because of institutional factors.  They're prosecutors, for godssake.  Their job is to lock up the bad guys.  That's what they get rewarded for.  That's where the high fives come from. That's what they're supposed to do.  Besides, the accused are, all of them, bad guys.
• Prosecutors do what they do for political reasons.  They run for office.  They want big budgets.  They hope for preferment.  None of that comes from dismissing charges or the repeated public mea culpa.
• Prosecutors act, as do we all, for psychological reasons.  There's tunnel vision.  There's cognitive bias. There's the competitive drive of the litigator.  There's the difficulty in admitting a mistake that sent someone to prison for years or to death.

Medwed's analysis of this is generally spot on. But that's just part of the set up.  Because, again, he wants to stop it, to help prosecutors become the "ministers of justice" he thinks they want to be.

What seems safe to say is that most prosecutors aim to do justice, but only some hit that target consistently.

To that end he offers a series of suggestions, repeated regularly with slight variation in chapter after chapter.

• Prosecutors shouldn't charge people with crimes if they can offer an explanation of how it is that they're innocent.
• Prosecutors should provide full open discovery.
• Prosecutors shouldn't offer plea bargains except to the unquestionably guilty because they encourage innocent people to plead guilty and avoid the risk of greater punishment if they lose at trial.
• Prosecutors should stop rewarding convictions and affirmances and should begin rewarding efforts to find the innocent.
• Prosecutors should have committees make decisions rather than individuals who get too close to cases.
• Prosecutors should rigorously examine all their evidence and witnesses with an eye to assuring that they're reliable and accurate.
• The rules of legal ethics should be clearer and should require higher standards for prosecutors than they do now.
• Prosecutors should actually be sanctioned if they don't obey the new rules.

Change the culture, change the politics, avoid the psychological blocks.  It's not that those aren't worthy ideas.  It's that they haven't much real world resonance.  He calls, he says, for incremental change.

The bulk of my proposed reforms embrace a "gradualist" or evolutionary approach to the prosecutorial function.  I do not favor razing the institution of the American prosecutor and installing an entirely new structure in its stead; I prefer renovation to demolition. Lift the legal bar that prosecutors must meet in order to justify major decisions.  Hone the rules of ethics and motivate disciplinary agencies to enforce them. Design internal review committees to improve decision making and counter cognitive bias.

Because they're all men and women of good will who just get sidetracked from their efforts to pursue justice.

Except they're not. Prosecutorial culture is the way it is because, for the most part, they want it that way.  They don't zealously search their cases to see if they might be going after someone innocent because they honestly believe what the cops tell them.  They do what they can to convict, including using jailhouse snitches, getting one defendant to roll on another, presenting forensic evidence they know is bullshit, and then fight tooth and nail to hide evidence of innocence because they want to nail our clients.  They don't care about innocence because they agree with Ed Meese that our clients are never innocent.  Even if they didn't do it. 

And it's a fucking moral quest.

Not all of them.  And not all the time.  But most of them.  Most of the time.  Which when you get right down to it is why they became prosecutors in the first place.

I said Medwed's book was important, and it is.  He does a terrific job identifying a problem, showing how it develops and proceeds, and making clear some of the reasons why it's close to intractable. Those are no small things, and they deserve a whole lot more analysis and discussion and awareness than they get.

And his recommendations are mostly sensible steps.  But they're built on the naive belief that prosecutors should be and want to be pursuing innocence with the same energy and drive they put into pursuing guilt.  And that both American society generally and the legal profession specifically really want that sort of prosecutor behavior.

I think not.

I'm older than Medwed.  I've represented some factually innocent people.  Sometimes they go home when we're done.  Sometimes they go to prison.  I've also had clients who ended up strapped to a table and murdered.  Maybe there's a reason I'm more cynical than he. 

But I'm also right.

Because you know, ultimately, Cathy Cook was right.

You've got to make them lose to make them learn.

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*It's also fantasy to imagine that doing justice is an identifiable task.  I'm not going to reenter the thicket of arguing about what justice means here.  For Medwed, it seems to mean doing everything possible to avoid charging or convicting factually innocent people of crimes - and ensuring that they are unconvicted if it should happen that they do get convicted.

Fear Itself

As the Chronicle's Lisa Falkenberg observed in her column, "If Lykos and her prosecutors have done nothing wrong, there's no reason why a runaway grand jury should have them running scared."

That's from near the end of an editorial in yesterday's Houston Chronicle about the runaway grand jury in Harris County that's busy investigating the local DA's office.  I've kept in the link to Lisa Falkenberg because it doesn't actually link to the column the Chronicle's editorial board is quoting.  In fact, as best I can tell, the Chronicle's quote isn't a quote at all.  What Falkenberg wrote, in what I think must be the column to which they refer, is this.

If she trusts this grand jury to judge the facts in other cases, why not trust them to judge her, and HPD?
Or perhaps there's a reason this runaway jury has Lykos and her prosecutors running scared.

Which is much the same theme, but not the same words (or at least not all of them, and not in the same order) as the ones the editorial board put in quotes.

Despite appearances in the early going, this isn't really going to be a post about language or sloppy reportage or messy copy editing/cite checking or even why it is that if you can't trust the newspaper to quote itself accurately you might plausibly wonder why you should trust anything else it puts out.  (Mark Bennett made a similar point about Pat Lykos's office a few days ago, but that's not my point, either.)  No, this is a post about trust and fear and grand juries and prosecutors and why Lisa Falkenberg (and the Chronicle editorial, for that matter) are naively wrong.  And so was the second President Roosevelt.

You know, the one who said

We have nothing to fear but fear itself.

Because, in fact, there's a whole lot to fear.  And I'm not talking about terrorists or nuclear proliferation or overpopulation or an economic meltdown or the lack of health insurance or the drunk driver in the next lane on the interstate.  I'm talking about fear of cops and prosecutors and grand juries (and courts and all legal process, for that matter) even if you've done nothing wrong.

Because they're ready to bite you on the ass.

Just ask some of the factually innocent folks who've been convicted of crimes.  (Forget legal exoneration here.  I'm talking about the people who didn't do it - even sometimes when the "it" they didn't do didn't happen.)  The ones who were once on death row or just serving long terms in prison.  The ones who pay the traffic ticket they didn't deserve because it's easier and cheaper than finding a lawyer and fighting it.  The ones who entered a plea in exchange for time served regardless of guilt because they couldn't afford bond and needed to get out of jail.  The ones who got fucked by bad lawyers or dishonest prosecutors or cops or just by really bad luck.

And then there are the ones who got caught up in what nobody could have expected to be a crime but damned if some overzealous prosecutor didn't find a way.  (See Harvey Silverglate's Three Felonies a Day: How the Feds Target the Innocent, which isn't as good as it should be and doesn't make the point quite as clearly as the title suggests but certainly points to the problem.)

Yes, you can be charged with crimes, even convicted of them, if you're innocent.  Hell you can be shot by the cops (and no, those aren't the only examples) just because. 

And yet we maintain this fantasy that somehow, someway, innocence is enough.  It isn't.  Not even close.

It's not enough to prevent criminal charges.  It's not enough to prevent criminal convictions.  It's not enough to prevent time in prison.  It's not enough to prevent executions (just ask Cameron Todd Willingham).  And, sadly, it's not enough to prevent being shot and killed by a rogue cop.

And even when it is, it's not enough to prevent ruined lives.

And yet there's this myth embraced by Ms. Falkenberg and by the Chronicle.  If you have nothing to hide, you're secure.  There's nothing to fear but fear itself.

And so:

• Of course I'll come down to the station and answer your questions.  I have nothing to hide.
• Of course you can search my car.  I have nothing to hide.
• Of course I don't need a lawyer.  I have nothing to hide.

Which as any half-smart criminal defense lawyer can tell you is simply (and I'm putting this in boldface for a reason) wrong.

It may be true that you have really have nothing to hide.  

It's still not true that you should go to the station (or sit at your kitchen table, for that matter) and answer questions.  It's still not true that you should consent to the search of your car.  It's still not true that you don't need a lawyer.

What's true is that once they start looking at you, you're in trouble.  Maybe you get out of it unscathed.  Maybe not.

And the "not" happens more often than we like to think.

Let me put this as simply as possible.

You don't trust the government to do much of anything right, but you trust it not to pursue criminal charges against innocent people?  You're living in a fool's paradise.

I don't know whether Pat Lykos and her office have violated any laws.  I don't know whether the grand jury in Harris County will end up bringing indictments against anyone.  I do know that to say she and her minions have no reason to be scared if they didn't do anything wrong is to be grossly naive.

Lykos and her minions know that, of course.  The Chronicle should know it, too.  So should you.

Dangerous Dumpsters & the Armed Generalissima

Really, what I wanted to write about was inanimate objects.I wanted to offer a thought experiment.

Imagine, if you will (and if you won't why are you reading this?), a tree.  Tall and broad, stately.  A thing of beauty.  On a bright summer's day, you could sit under it, perhaps with a lover.

A Book of Verses underneath the Bough, 
A Jug of Wine, a Loaf of Bread--and Thou 
Beside me singing in the Wilderness-- 
Oh, Wilderness were Paradise enow!

 
     Omar Khayyam, The Rubaiyat

A lovely thing, really, though with the potential of great danger, naturally.  You know the rule:  Don't take shelter under a tree in a thunderstorm.  And there are the stories:

• Man killed by falling tree branch in Central Park.
• Man killed by falling tree branch in Radnor, PA.
• 13-year-old girl killed by falling tree branch in Yaxley, Cambridgeshire.
• 16-year-old girl killed by falling tree branch in the Teton Wilderness.

Which are just a tiny sampling.  And don't include all those times when drivers run into trees and die or parachutists fall on them and die or idiots climb up and fall off and die or . . . . Really, the Darwin Awards could have a special category.   But really, mostly trees are pretty safe.

So, to get back to the point, imagine a tree.  But don't think of it on that bright summer day with your lover nearby.  And don't think of it as an accident waiting to happen.  I mean, life is a risk.  Anything can happen anywhere.  No, think of the tree as a weapon.

Break off a branch and hit someone with it.  Or stab someone with it.  Take someone and ram him, hard, head first, into the trunk.

Now, another image.  Think of a wooden box.  A big one.  It could be a weapon, just like a tree.  One could smash someone's head into it.  One could break off a piece and use it as a bludgeon or a spear.  One could, perhaps, drop it on someone.

Or, and now we get toward the point, one could place someone inside the box.

Which brings us to the question: 

If someone is put in the box, does the box become a weapon?

If that box is in Waco, Texas, the answer is now "Yes."

Via Walter Reaves, comes word of Mechell v. Texas which demonstrates, as Reaves says, "anything can be a deadly weapon."

That was apparent in the recent case of poor Prisscilla Mechell. She was charged with aggravated kidnapping, injury to a child, and abandoning a child. The facts were that she took a baby from a friends house, and ended up leaving the child in a dumpster where she was later found. Although the child was severely dehydrated, there were no serious or permanent issues. The issue in the case was whether the dumpster was a deadly weapon.
The court had little trouble deciding that it was. The court found that the defendant used the dumpster to hide the baby, and that in doing so there was the possibility that death or serious bodily injury could result. While I'm not surprised,that seems to me to be a totally unwarranted expansion of the definition.

What's striking about Mechell's case is that there was no need to go there.  Mechell ended up with a 48 year prison sentence.  She'd have been well up into the double digits (I'm not up on the details of Texas sentencing law today so I won't try to figure out just how high) without the deadly weapon specification.  So why would the DA bother?

There are, I think, two answers.

1. Because he could.
2. Because he wanted to get a court to say so.

Here's the relevant Texas law as set out in the court's opinion.

A deadly weapon, as applied to this case, is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West 2011).

From which, the court of appeals in Waco concluded, a dumpster is "capable of causing death or serious bodily injury" because a person abandoned in one might die or be seriously injured. Which is surely true.  But is also a major screw up.  By focusing on whether harm could occur in a dumpster, the court lost track of the issue of causation.

Because the simple fact is that the dumpster as inanimate box, couldn't cause harm.  The cause of harm was abandoning the child.  Causation matters.  (See here, for instance.)  Reaves again.

It was the act of abandoning the child that caused the injury, and the dumpster was simply the place where he was left. Under the court's logic, any place the child had been left could be a deadly weapon. I suppose that if a parent runs off and leaves their children for an extended period of time, their house then becomes a deadly weapon.

And don't think it won't happen.

Which brings us back to the District Attorney.  Maybe it was a power play.  (Let's stack up the charges and make them as bad as possible because we can.)  Or maybe it was an effort, at Mechell's expense, to establish some really awful law to use in the next case.  Offensive either way.

But then, so are the trial and appellate courts for buying into it.  

Except, of course, a child was hurt.  And as they like to say,

Bad facts make bad law.

* * * * *

That's the post I was going to write.  Up until the moment I saw this CNN story via Howard Bashman's post.

Let me back up for a moment.  I've made this point before (here, for instance).

I love westerns, and the gunfight (really it was a duel) is a classic scene with which I'm comfortable and in which, when I was younger, I repeatedly fantasized a role for myself. But I grew up a Jewish kid from New York, and I don't like guns.

I had and played with lots of cap guns and an air rifle when I was a kid. I've shot a .22 a couple of times. I've held handguns with varying degrees of pleasure/fascination (mostly depending on my age). I've learned something about how firearms work as a criminal defense lawyer. But I grew up a Jewish kid from New York, and I don't like guns.

I think we'd be better off if they were completely banned. I hate the Second Amendment. I'm a fan of all sorts of gun control. Heck, I grew up a Jewish kid from New York, and I don't like guns. But I try and be honest about these things.The Second Amendment is part of the Bill of Rights. As such, it has as much clout as, say, the Fourth or the Eighth, both of which I like a great deal. It's the law of the land. And we're stuck with it.

 

I wrote that, as you'll see if you follow the link, in a post arguing that the Second Amendment allows, even encourages, an armed citizenry not for sort or hunting or defense against burglars but to ensure the ability to successfully defend against and even overthrow the government.

If the Second Amendment means what I think it has to mean. If the Second Amendment guarantees the people the right to bear arms in order to prevent the government from becoming tryranical. If the Second Amendment is there so that free Americans can protect themselves from an oppressive government and so that, in a pinch, they can fulfill the duty of revolution and overthrow that government. If all that's so. Then my hyperbolic, jokey response about how, whatever limitations there may be on the Second Amendment right, the government can surely prevent me from keeping an atom bomb in my backyard, is simply wrong.

Regardless, I'm still in some ways that Jewish kid from New York who hates guns.

Another Jewish kid from New York (and no, we've never met, though we both grew up on the upper west side of Manhattan) who presumably hated guns is the former Generalissima, now-Justice Elena Kagan.

The other day, she was in Baltimore helping a temple celebrate its 90th anniversary.  She talked about her family's search for a temple.  About convincing a "modern orthodox" rabbi (whatever sort of orthodox that is) to give her something like a bat mitzvah.  She talked about Jews on the SCOTUS bench and about a case involving a passport from Jerusalem or Israel or Palestine.  And she talked about (you knew I was going to get back to this, right?) guns.

She recalled paying a courtesy call on Sen. Benjamin Cardin, D-Maryland, who is a member of Beth Tfiloh, shortly after her nomination to the court by President Barack Obama in May 2010. Cardin asked her about gun rights, and remarked she may not realize how important the issue is to some Americans.
She admitted never having owned or fired a gun before. "But I told Sen. Cardin if I was fortunate enough to be confirmed, I would go hunting with Justice Scalia."
And she has, joining her conservative colleague on an excursion to a Washington-area shooting range and on several hunting trips, until now never reported. Her host at the synagogue event was surprised.
"You're Jewish," deadpanned Rabbi Mitchell Wohlberg.
"Yeah, but it turns out, it's kind of fun," said Kagan, laughing.

And no, I'm not going to try relating this to the big/game/hunter cops near Zanesville (home of the National Road/Zane Grey Museum, by the way) who just tracked down and killed some 49 "exotic" animals.

Cleveland - Where the Fun Never Stops

So we wait to see what happens in Maricopa County now that Joe no longer has his lapdog Andy Thomas handy. What, you didn't know Thomas resigned as County Attorney so he could run for state Attorney General?

Arpaio said he was not surprised by Thomas' resignation, though he admitted that his departure could jeopardize the prosecution of illegal immigrants in Maricopa County.

"I still have the authority to arrest people," Arpaio said. "We'll see if they prosecute them."

Arizona law says the County Supervisors appoint Andy's successor, but he wants the Governor to make the pick. Who draws the short straw may go some toward answering Joe's question.

Meanwhile Adam Stoddard waits to find out whether he'll have to ask Joe to pay his fine or he'll have to write 500 times, "I will no longer read privileged attorney-client communications when I might get caught."

Up in Connecticut, Steve Hayes has decided not to ask the state to assist him in a suicide attempt, which moots for the time being the question of whether his lawyers' obligation is to assist him in the endeavor or intervene to prevent their client from getting his wish. So the trial can proceed - actually jury selection. The trial is scheduled in the fall.

Then there's Juneau County, Wisconsin where District Attorney Scott Southworth sent a letter warning school boards that he stands ready and willing to prosecute teachers who obey the state law and teach sex education including instruction in contraception. Further, he warns that since the ACLU will be monitoring compliance with the law, teachers should consult counsel.*

So with that set of constitutional crises on hold for the moment, and with another week yet before

So let us drop in again on the ever curious happenings in and around the common pleas courtroom of Judge Shirley Strickland Saffold, Cuyahoga County, Ohio. You remember her.

She's the one who, back in 1995, was lecturing a woman who'd entered a guilty plea credit card fraud as part of an effort to find a good man. From the bench, in open court, Saffold told the woman:

Men are easy. You can go sit at the bus stop, put on a short skirt, cross your legs and pick up 25. Ten of them will give you their money. It's the truth. If you don't pick up the first 10, then all you got to do is open your legs a little bit and cross them at the bottom and then they'll stop.

But I just retell that story because, well, because I can't resist. What's relevant about her now is that she's the judge (at least for the moment) to whom Anthony Sowell's death penalty case has been assigned. And she's the judge who, it turns out, holds the AOL account from which "lawmiss" posts comments to news stories, including those about cases of hers, on the website of the Cleveland Plain Dealer. Saffold, you'll recall, denied that she did the posting. It was all the work of her daughter Sydney, she (and Sydney) said.

To which I, for reasons, that may be apparent a few paragraphs from now, say merely, "No comment."

Anyway, there have been, as they say, developments.

First, she's been asked to recuse herself from the Sowell case. In fact, she's being asked to recuse herself from every case in which Rufus Sims is counsel. As the Plain Dealer reports:

One lawmiss post, regarding a 2009 trial of an RTA bus driver, accused Sims of doing a disservice to a client.

"If only he could shut his Amos and Andy style mouth," the post reads. " What makes him think that is [sic] he insults and acts like buffon [sic] that it will cause the judge to think and see it his way. There are so many lawyers that could've done a much better job. This was not a tough case, folks. She should've hired a lawyer with the experience to truly handle her needs. Amos and Andy, shuffling around did not do it."

She's declined to do that, though she has a hearing scheduled for next week on recusal from the Sowell case.

But, of course, that's not the end of things. Because there's the principle of the thing. That's a $50,000,000 principle, if you were wondering. Or at least, the judge thinks it is.

Yesterday Shirley and Sydney filed suit (copy of complaint here) against the Plain Dealer and related entities and 990

currently unknown individuals that published defamatory and attacking statements against Plaintiffs under anonymous User Names on Cleveland.com that Plaintiffs will be able to locate once Defendants provide their Registration Information.

As I say, Shirley and Sydney want a cool 50 million - 25 in actual damages and 25 in punitive damages. Their complaint? Six counts:

Breach of Contract
Tortious Interference with a Contract
Promissory Estoppel
Fraud
Invasion of Privacy/False Light
Defamation

OK, the various forms of contract claims make some sense. Lawmiss signed up as a commentor with the promise of privacy and anonymity, a promise the PD broke. But the false light claims seems to rest mostly on the fact that the PD described the lawmiss e-mail address as the judge's personal address when she claims it's a family address used jointly by she and her daughter. As for defamation? That's all those folks who read the story and think the judge is a . . . . I don't want to say it lest I be sued.

Then there's the small matter of 25 million in actual damages. Hard to see how they came up with that figure. (Actually, it's not hard at all. Shirley, Sydney, and their lawyer pulled it out of their collective asses; that's how it's done.)

Here's what I do know.

They just ensured a whole lot more people would read the words of "lawmiss." And it seems that their lawyer, at least according to the PD, has conceded what neither Sydney nor Shirley would: The judge is responsible for at least some of what "lawmiss" said.

Cleveland. Someplace special.

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*I haven't a clue why he thinks ACLU monitoring will be a problem for teachers who obey the law, but I can see that he might think just flinging the words ACLU around will scare the bejesus out of the Juneau County locals.

He Left the Smoking Gun

It's always nice, and far too rare, to see a prosecutor slapped around for being a heavy-handed, moralistic, jackass.
And so we turn to Miller v. Mitchell.
It's the sexting prosecution case out of Wyoming County, Pennsylvania,* and yesterday the Third Circuit Court of Appeals said that the district court was right to slap down the prosecutor.
You remember the case. It's the one where the elected prosecutor George Skumanick (misspelled Skumaniack in some early reports) got all hot and bothered by cell-phone pictures of pubescent teenage girls who weren't nude and decided to bring felony charges against them if they didn't submit to brainwashing moral re-education.

In October 2008, school officials in the Tunkhannock, Pennsylvania, School District discovered photographs of semi-nude and nude teenage girls, many of whom were enrolled in their district, on several students’ cell phones. The officials learned that male students had been trading these images over their cell phones, and turned the phones over to the Wyoming County District Attorney’s Office. George Skumanick, then District Attorney, began an investigation.

In November 2008, Skumanick stated publicly to local newspaper reporters and an assembly at Tunkhannock High School that students possessing “inappropriate images of minors” could be prosecuted under Pennsylvania law for possession or distribution of child pornography or criminal use of a communication facility. A few months later, Skumanick sent a letter to the parents of between 16 and 20 students—students on whose cell phones the pictures were stored and students appearing in the photographs—threatening to bring charges against those who did not participate in what has been referred to as an “education program”:

[Child’s Name] has been identified in a police investigation involving the possession and/or dissemination of child pornography. In consultation with the Victims Resource Center and the Juvenile Probation Department, we have developed a six to nine month program which focuses on education and counseling. If you[r] son/daughter successfully completes this program[,] no charges will be filed and no record of his/her involvement will be maintained. We have scheduled a meeting with all of the identified juveniles and their parents to discuss the program in more detail and to answer your questions. Following the meeting you will be asked to participate in the program. Participation in the program is voluntary. Please note, however, charges will be filed against those that do not participate or those that do not successfully
complete the program.

The education program was divided into a Female Group and Male Group. The “Female Group” syllabus lists among its objectives that the participants “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages.”
In the first session, students are assigned to write “a report explaining why you are here,” “[w]hat you did,” “[w]hy it was wrong,” “[d]id you create a victim? If so, who?,” and how their actions “affect[ed] the victim[,] [t]he school[, and] the community.” The first two sessions focus on sexual violence, and the third on sexual harassment. The fourth session is titled “Gender identity-Gender strengths,” and the fifth “Self Concept,” which includes a “Gender Advantages and Disadvantages” exercise.
At the group meeting scheduled by the letter, held on February 12, 2009, Skumanick repeated his threat to bring felony charges unless the children submitted to probation, paid a $100 program fee, and completed the education program successfully. One parent, whose daughter had appeared in a photo wearing a bathing suit, asked how his child could be charged with child pornography based on that picture. Skumanick responded that she was posing “provocatively.”
When plaintiff Marissa Miller’s father asked Skumanick who decided what “provocative” meant, Skumanick refused to answer and reminded his audience he could charge all of the minors with felonies, but instead was offering the education program. He told Mr. Miller, “[T]hese are the rules[. I]f you don’t like them, too bad.”

Most of the parents and children signed up. The few who didn't, sued.
I wish the Third Circuit had addressed the underlying acts and concluded they weren't a crime and that Skumanick had no right to bring criminal charges at all because what the kids did wasn't criminal. But plaintiffs' counsel didn't make that argument (and probably would have been thrown out of court if they had). They did argue that the photos were protected speech and the prosecution was retaliation for that, but they lost that argument in the district court, and didn't pursue it in the court of appeals.
Instead, they argued that Skumanick was retaliating against them for refusing to attend his re-eduction camp. And they argued that he was improperly usurping the roles of parents and schools in moral education. And they argued that he was unconstitutionally forcing the kids to avow his moral positions. The Third Circuit agreed. Wholeheartedly.
Skumanick, the panel said, was planning to initiate felony prosecutions in retaliation for the exercise of constitutional rights. That he couldn't do.

[A]bsent an injunction, the Does would have to choose either to assert their constitutional rights and face a prosecution of Nancy Doe based not on probable cause but as punishment for exercising their constitutional rights, or forgo those rights and avoid prosecution. On the facts before us, this Hobson’s Choice is unconstitutional. While “the Government retains broad discretion as to whom to prosecute,” “the decision to prosecute may not be deliberately based on . . . arbitrary classification, including the exercise of protected statutory and constitutional rights.” Wayte v. United States, 470 U.S. 598, 607–08 (1985) (internal quotation marks and citations omitted); see also United States v. Goodwin, 457 U.S. 368, 372 (1982) (“For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.”).

Terrific.

Here's the down side. It almost never happens. The court explained in a footnote.
This decision does not open the door to federal courts serving as a screening mechanism for state prosecutions. Before us is the unique circumstance of a prosecutor revealing unequivocally that a prosecution would be brought solely in response to a potential defendant’s exercise of a constitutional right. As the Supreme Court noted in Hartman, these “[u]nambiguous admissions” are “likely to be rare.” 547 U.S. at 264 n.10.

Sure they are. Most prosecutors don't make such overt, public threats, on the record.
In fact, people are arrested and prosecuted every day for exercising their constitutional rights. Sometimes the charges are eventually dismissed. Sometimes the defendants are found not guilty. Every time there is damage - arrest, jail time, public opprobrium, loss of income, maybe of family, the not-inconsiderable cost of hiring counsel, and that's just for a start. But there was no smoking gun, no prosecutor declaration that "I'm going after this guy for what he says or what he thinks or how he looks or what he does that the law and the constitution protect."
It's not hard to find those cases. You don't have to go to Maricopa County (though you'll certainly find them there). Just open the newspaper.
Good for the Third Circuit to prevent heartbreak and slap Skumanick around. Too bad it won't happen more.




-----------------
*Pa seems to specialize in places named after other places: There's California, Washington, Little Chicago, Indiana, York, Japan, Germany, Viennese Woods, Scotland, and of course Mars. Yes, I know. Your state has them, too. It's not often that I drive through Texas, Ohio, but it does happen.