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June 8, 2009

Discussing prosecutorial power at Ohio events on Tuesday

Book%20Cover%20for%20Web%20Page I have the honor and the pleasure of participating in two panel discussions on Tuesday sponsored by the Buckeye Institute for Public Policy Solutions, which will be focused on lessons to draw from this great new book by Jon Entine of the American Enterprise Institute tit;ed "No Crime But Prejudice: Fischer Homes, the Immigration Fiasco and Extra-judicial Prosecution."  Details about these events (which take place in the early morning in Columbus and the late afternoon in Cincinnati) can be found here and here, and this is the introduction from the Buckeye Institute:

The justice system relies on extracting plea deals, sometimes even from the innocent and from supposedly deep-pocketed businesses. What happens when a public-minded business owner -- in this case the CEO of a prominent Cincinnati and Columbus area homebuilder -- risks his reputation and financial peril to fight for citizen's rights, fairness in the justice system and the jobs of his associates?  Three distinguished panelists, including two former federal prosecutors and an internationally recognized expert on criminal law from The Ohio State University will be on hand to discuss concerns about the power of prosecutors and why we all should care.

June 8, 2009 at 11:31 PM | Permalink


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Do the lawyers believe in the benefits of torts or not? Stop being hypocrites. Let torts improve the appalling failure of the criminal law.

End all self-dealt lawyer immunities, including those of the prosecutor from legal malpractice liability and from mandamus to start doing their jobs. A victim should be able to have a judge order the prosecution of a criminal under threat of criminal contempt. A criminal law judge should be able to track and force good job performance. I don't care what the case law says about judges tracking performance. They feel free to impose their dictatorial powers on productive entities to end discrimination against lawyer privileged pseudo-victims.

Immunity violates the Establishment Clause and Article I Section 1 of the US constitution and its state equivalents. The sole justification for immunity is that His Lordship speaks with the Voice of God. That is a psychotic delusion.

Immunity is also stealthy industrial policy. It grows an enterprise. We want to shrink government, its being an incompetent, corrupt oppressor. The growing or shrinking of an enterprise is a legislative policy function. Nor is this any bashing of government workers. When they leave government, they often make outstanding performers.

Are Ohio prosecutors at will employees? That would make them vulnerable to political pressure from their politician hack bosses. Make them civil service. The slightest utterance of political pressure to drop or start a case should be criminalized as the offer of a bribe is.

If the prosecutor office receives any portion of fines and administrative fees, there is an inherent conflict of interest, and these violate Fifth Amendment procedural due process. The latter covers punishment, and all revenue raising by the court violates it. All funding should come from general tax funds.

You will never hear these remedies at any lawyer gathering. They are beyond the pale, beyond the realm of possibility or conception. Beyond the slightest threat to rent seeking, the true function of this incompetent lawyer scam.

Posted by: Supremacy Claus | Jun 9, 2009 4:52:05 AM

Very good, Professor. Buckeye Institute does not appear to be the standard Hate America, Commie front organization.

Posted by: Supremacy Claus | Jun 9, 2009 5:02:50 AM

Something else no lawyer will say. Always attack back. Seek the personal destruction of the rent seeking land pirate, and to defund his criminal cult enterprise. To deter.

You need two lawyers. One is the defense attorney. The second is a legal malpractice attorney to terrorize the defense attorney with daily threats of malpractice suits. The defense attorney will never attack the prosecution, because that is the source of his job.

1) Parse every word and immediately demand a mistrial and all legal costs from the personal assets of the prosecutor. This can happen just about daily. Every utterance and jot of writing has an improper and discriminatory intent.

2) File ethics charges over and over again. Each has to be investigated over weeks. Cite the rule number, and the facts that violated it. The innocent defendant should never be left alone in uncertainty.

3) Counter-sue for injunctions, for damages. Even if these have no basis in fact or law, they will defund the office, and guarantee the land pirate will be working elsewhere in months.

4) Start a publicity campaign to demonize the prosecutor with his family, church, neighbors, the public. Report the unfair cult criminal to his mother.

Posted by: Supremacy Claus | Jun 9, 2009 7:03:43 AM

Most Americans don't learn about the sinister aspects of prosecutorial power until it visits their homes.

But of course by then it's too late even to effectively complain because innocent and wrongly accused citizens savaged by breathtakingly powerful, career-climbing prosecutors enter the stage as perps...and therefore have no credibility.

Every ten years or so important questions are raised by academics or uncommonly brave politicians, but nothing ever comes of it.

Just another terrible problem our representative democracy seems incapable of even addressing seriously, let alone solving.

Posted by: John K | Jun 9, 2009 10:21:59 AM

I think it's rather obvious that people should be concerned about prosecutor power. But the answer to that is not curtailing prosecutors, it's more democracy. The problem does not lie in the hearts of prosecutors or in the structure of the system, it lies in the fact that people just don't care anymore. California is a great example of that fact, our low voter turn outs are an example of that. The people themselves have the power to solve these problems. The critical question is why they do not. And I think the answer to that question is a complicated cultural problem, it's not going to be solved by a bunch of jibber jabber at a conference, no matter how well intended.

Posted by: Daniel | Jun 9, 2009 10:30:10 AM

If it isn't going to be solved by "jibber jabber at a conference," it's not going to be solved by democracy either. Democracy has created the system we have.

I would not say that "people don't care any more." I just don't think the average person realizes how much power reposes in prosecutorial discretion, and it's obviously not in prosecutors' interest to let it be known just how much ability they have to manipulate the outcome. The average person is liable to be far more aware of procedural safeguards that benefit the defendant (proof beyond a reasonable doubt, right to remain silent, the exclusionary rule, and so forth).

Obviously "jibber jabber" by itself is only a start. But if we did not consider it worthwhile, why are we "jibber jabbering" on this blog?

Posted by: Marc Shepherd | Jun 9, 2009 10:56:42 AM

I want to hear Prof. Berman defend the indefensible, prosecutorial immunity and discretion. He must do so in the face of massive, unanswered criminality, and a dunderheaded, incompetent system that fills expensive jail beds with innocent people, or guilty people without victims.

He never will, nor will his all-lawyer conference pals. How can you have an entire conference of lawyers in failure and expect a productive outcome? The conference will sound like the discussion in class in special ed summer extended school year, mental cripples discussing trivial, annoying, irrelevant, tiny points, unable to see the self-evident hugeness of the failure of the criminal law.

I ask Prof. Berman to try an experiment at lunch. Ask the former prosecutors to utter the V word. They can mouth it silently, so as to not cause a disturbance and be arrested for disturbing the peace. I bet 10 cents they cannot even mouth it. I bet he writes it on a slip of paper, they refuse to look at it, crumple it up, and toss it in the trash.

Posted by: Supremacy Claus | Jun 9, 2009 11:06:05 AM

"Democracy has created the system we have."

True enough. And you dance with the one that brought you. The only way out is through. Etc.

Unless you are going to join Supremacy Claus in wanting a fascist revolution, I don't see what choice there is.

The only solution to a democratic failure is more democracy.

Posted by: Daniel | Jun 9, 2009 2:40:00 PM

Dan: Not a fascist, an utilitarian. The Fascist thing had a business plan in rent seeking. Those Jews they sent away? They took their possessions and gave them to the twenty families that put Hitler in power. The campaign supporters gave $5000 to the Nazi Party, and made $millions from stolen Jewish assets. The Nazis plundered conquered lands and gave it out in benefits to their constituents.

My business plan is to end the land piracy and to take back the law from the cult criminal. It has no support from anybody. And, when they support the criminals, they kill the crime victims.

Posted by: Supremacy Claus | Jun 9, 2009 4:33:21 PM

The Legal Realism Movement was spawned by the same German bitch on wheels that spawned the Nazi judiciary. If anything, our current crop of jurists are cousins to the Nazi judges. They had to violate and overcome the writing to do what they did to the Jews. The writing protected them, and may have been invented by the Jews. Right now, judicial review is the imposition of sick personal bias, lawyer rent seeking, and the will to power over the hapless public, by a small hierarchy. That hierarchy hanged after the war. They hanged all those German judges. To their credit they had a lone dissenter who wanted to obey the law. He was given the choice of retirement or a firing squad. We do not have even one dissenter.

Posted by: Supremacy Claus | Jun 9, 2009 4:40:54 PM

SC. I meant fascist not in the objective but in terms of method. E.g, shooting all the lawyers in the courthouse basement.

"land piracy". Does this having something to do with your obtuse theory of rents? Do land pirates bury their booty in the ocean? Inquiring minds want to know.

Posted by: Daniel | Jun 9, 2009 7:24:53 PM

Dan: I said, shooting the lawyer hierarchy which is about 15,000 people in the court basement, after an hour's fair trial. That is far more due process than they give to crime victims. I would like to close the top tier of law schools, there being 500,000 too many lawyers for our population and economy. They have a pestilential oversupply. Lawyer salaries and esteem would increase after their correct supply gets reached.

Posted by: Supremacy Claus | Jun 9, 2009 9:58:14 PM

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