« Some more notable reactions to the Sessions Memo | Main | Notable review of Colorado's recent experiences and concerns with polygraph testing of sex offenders »

May 14, 2017

"Dismissals as Justice"

The title of this post is the title of this notable new paper authored by Anna Roberts available via SSRN. Here is the abstract:

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice.  Whether phrased as dismissals “in furtherance of justice” or dismissals of “de minimis” prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubberstamp prosecutorial decision-making.  In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its size, harshness, and bias.

Second, these cases converge on shared principles of justice.  These principles conjure a vision of a very different criminal justice system: one in which an alleged criminal act is viewed not in isolation, but within a broader context that includes the apparent motivations for it, and the state’s role in and response to it.  There is no logical reason to confine these principles to this procedural context, and the Article urges their broader consideration.

May 14, 2017 at 04:27 PM | Permalink


A small number of states prohibit motions to dismiss by the defense. However, these are made throughout the trial. I saw these preliminary motions on Perry Mason, from the 1950's.

Prosecutors may appeal the dismissal, raising costs to the taxpayer.

Overall, I support these dismissals. I also support the making of such a dismissal per se evidence of prosecutorial misconduct. The prosecutor should then pay all costs out of personal assets, since wrongful prosecutions are not part of the job duties. Misconduct should include trivial prosecutions. I steal a $1 pack of gum. The prosecutor initiates a tribunal costing $thousands. A guy attacks me. I punch him in the face. He hits his head and dies. The prosecutor is going after the crime victim. The judge dismisses.

Make these prosecutors pay all costs. This liability is for their own good, since immunity is justification for violence in formal logic. The latter has more certainty than the laws of physics.

Posted by: David Behar | May 14, 2017 8:55:51 PM

Believe it or not, I actually support this (at least in the abstract). The judicial branch has the power (and likely the duty) to not allow itself to be used as an instrument of injustice. Obviously, the standards have to be high, and the power has to be used with extreme care, but . . . .

This sort of thing could be used to justify Gideon (which, of course, is not really in the Sixth Amendment).

Posted by: federalist | May 15, 2017 10:13:17 AM

As to Gideon, for those who have not seen it: http://www.scotusblog.com/2017/05/panelists-look-back-one-case-personally-recall-gideon-v-wainwright/

Posted by: Joe | May 15, 2017 4:01:31 PM

That SCOTUSBlog entry is long on pathos and short on analysis--although it's telling to see that the admission that the Court has constitutionalized Crim Pro. In other words, made it up.

Like I said, from the standpoint of reality, I have no quarrel with Gideon---you simply cannot have a functioning CJ system now without lawyers for the accused, and if you had such a system, it would work serial injustice on literally a daily basis. But, and here's the thing, had Gideon been based strictly on the idea that courts simply cannot be expected to ratify injustice, then Gideon wouldn't have metastasized into the utter nonsense decisions that have come down the pike--e.g., Frye and the alien decision re: effective assistance of counsel. Also, there would likely be limits on how much counsel is required for serial offenders etc.

Posted by: federalist | May 15, 2017 4:13:38 PM

The above commentators brought up Gideon, and are lying about it. I am not deviating from the subject of the paper. I have to inject a couple of facts into their lawyer bullshit.

Gideon was found with $23 in quarters (like $230 today), nearby, and right after a juke box was broken into. A stolen bottle of wine was sticking out of his pocket. Not one to run from a crime scene, he was in a booth outside, calling for a cab. He was a career criminal and alcoholic.

He put on an excellent pro se defense. How could a jury ignore a guy with $23 in quarters. Who has that in his pocket? He said, he had those quarters winning at gambling.

Pro se criminal litigants do better than public defenders. They do not hand carry and force themselves to accept a plea deal 90% of the time. The study to which I referred upset Bruce. That is when Bruce started picking on me. His specialty really stinks, and is likely violating a host of Rules in statutes, because they are lazy and worthless. His specialty is violating the right to a fair trial on a mass scale, far worse than before Gideon.

So Gideon, writes a Supreme Court cert on toilet paper or a paper bag, or whatever. It is displayed alone at the Constitution center in Philadelphia, and lit up eerily like a religious icon. It is a religious icon of the religion, of the cult of lawyer employment.

The court certs. Based on that, all 2000 unrepresented defendants in his jurisdiction are released, except him. He has to wait in jail, probably longer than his sentence would have been (5 years with good behavior). He turns down the offer of the ACLU and of the public defender lawyers. He is no fool. He demands a commercial grade defense lawyer. That guy inserts a shadow of a doubt into the second jury's mind. He is freed. Now Gideon got commercial grade defense. All others, since Gideon, have been getting government grade defense lawyers, unless the case is followed by the media.

He goes home, immediately relapses into his lifelong alcoholism. He repeatedly beats up the wife, remarries, and dies a few years later of an alcohol related cancer. The Supreme Court killed Gideon by freeing him.

Why? To generate massive lawyer employment, and to downgrade the quality of the defense. The judge in the first trial did a good job of looking out for his procedural, technical legal rights. The Supreme Court read the same Sixth Amendment as everyone else. They decided to just make up a new right without legislation or amendment. That is prohibited by Article I, and nowhere is it supported in Article III.

Posted by: David Behar | May 15, 2017 6:35:59 PM

To summarize. The Supreme Court picks out a cert from a paper bag, for the appearance of false piety. As a result, the sentence of a guilty criminal is extended, but this guilty criminal is found not guilty on retrial by a sleazy defense lawyer. The life of the criminal is ruined.

However, thousands of lawyers have to be hired. These lawyers force plea deals on their clients 90% of the time. Yet, around 20% of their clients are innocent. They do nothing to save these innocent clients from false convictions.

But, there is one huge success. They are collecting paychecks at tax payer expense.

Posted by: David Behar | May 16, 2017 12:43:31 AM

I was on a jury in a case where we, unanimously, would have preferred dismissal.

It was a violent crime cases where we all decided that the defendant's actions were fully warranted, but were, also, against the law.

The full jury drafted a statement for our foreman to read to the judge, requesting the most minimal sanction possible - probation, which the judge agreed with.

I called defense counsel a year later and was happy to be informed that the case had been reversed and a re trial was unlikey.

Posted by: Dudley Sharp | May 16, 2017 12:33:49 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB