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December 19, 2022

Looking forward to seeing work of new Plea Bargaining Institute

Because trials get so much attention, most folks likley do not realize that more than 90% of criminal cases are resolved through pleas. And though most persons working in the criminal justice system know that most cases are resolved through pleas, there is still precious little really known about plea bargaining.  Consequently, I am quite excited by the announcement of new organization to study pleas, detailed in this news release headlined "Plea Bargaining Institute launched to reform plea bargaining practices in the US and internationally."  Here are the basics:

Fair Trials has partnered with Belmont University College of Law Professor Lucian E. Dervan to launch the Plea Bargaining Institute (PBI).... PBI is a groundbreaking project that will provide a global intellectual home for academics, policymakers, advocacy organizations and practitioners working in the plea bargaining space. PBI will create an environment for the sharing of knowledge and research and for collaboration related to the reform of global plea bargaining practices.

In the US, 95% or more of criminal cases are resolved through a plea of guilty. When someone pleads guilty they waive their right to a trial, something guaranteed by the U.S. Constitution. While a plea bargain may offer advantages, such as a more lenient sentence, plea bargaining often involves coercive incentives that negatively impacts all defendants’ right to trial. Research indicates that these incentives can be so coercive that even innocent defendants plead guilty....

PBI will create opportunities for dialogue that will inspire new and innovative research and analysis, empowering those working to reform plea bargaining to more effectively shape laws, change policy, and transform practice in the United States and internationally. PBI will also work to limit the use of coercive plea bargaining and reform the practice as a whole by engaging in training to instigate sustained alternatives....

PBI will focus on the following initiatives as it begins to create a global intellectual home for plea bargaining research:

  • Summaries of research and case law developments provided in a searchable online format and in annual reports to make these materials more accessible for use by academics across various fields, policymakers, advocacy organizations and practitioners.
  • Working groups for academics, policymakers, advocacy organizations and practitioners to share knowledge and create opportunities for dialogue and collaboration.
  • An annual symposium at Belmont University College of Law in Nashville, Tennessee to establish which new areas of research are necessary to bring attention to and reform the plea bargaining system both in the US and around the world.
  • As PBI grows, the project will expand its reach, including providing education and outreach.

Visit the PBI website to find out more and sign up for updates.  Please be aware that this website is under development, the full site will launch in early 2023.

December 19, 2022 at 09:46 AM | Permalink


Hopefully, the PBI will look into the prosecution of Bogdan Vechirko. Mr. Vechirko was wrongly arrested, and those who attacked him were excused from the consequences of their violent conduct. He was tried and convicted by the Minnesota DFL, and "graciously" allowed to participate in a pre-trial diversion program. In actual fact (although no one can know what was in Vechirko's mind), he was driving along, and suddenly saw a crowd of people on the interstate. He did his best to stop. He was then attacked and robbed. He spent more time in jail that many violent offenders.

It was an appalling abuse to charge him.

Posted by: federalist | Dec 19, 2022 1:14:39 PM

Why do you think Bogdan Vechirko accepted the diversion deal even though, as you see it, he was completely innocent? I know many people assert that many innocent persons feel coerced into pleading guilty (though Bill Otis often contests these claims). Of course, though involved in a deal with the prosecution, Vechirko never actually had to plead guilty and he also avoided any actual criminal conviction and all the collateral consequences that go with convictions (even wrongful ones).

The news release about PBI speaks to the broader issue of the coerciveness of our criminal justice system leading even innocent persons to plead guilty: "Research indicates that the current plea bargaining system creates coercive incentives that can lead even the innocent to plead guilty. For example, 21% of the cases entered into the National Registry of Exonerations in 2021 involved false pleas of guilty." It also states: "PBI will also work to limit the use of coercive plea bargaining and reform the practice as a whole by engaging in training to instigate sustained alternatives."

Posted by: Doug B. | Dec 19, 2022 10:11:39 PM

First of all, with respect to arguments regarding coercion, Bill's view of the world is based on the assumption that the G-men play it straight. Where that assumption is obviously flawed, my guess is that Bill would not take the guilty plea as necessarily indicative of guilt. I think that, in the real world, 999 times out of 1000, a guilty plea represents actual reality. Where it gets fuzzy are nebulous statutes and novel prosecutions and maybe certain sting operations.

With Vechirko, the system utterly failed him. Vechirko was, indisputably, a crime victim. Yet he was the one arrested at the scene. Let that sink in. Then, erroneously, elected DFL officials (including the governor) lionized his attackers and falsely claimed that he had breached barriers so that he was wrongfully on the highway. That false claim kept him in jail for the constitutional maximum of 72 hours. Imagine the indignity--you're driving along a highway, oblivious to the fact that it was opened up to protesters, and you see a crowd on the highway, and you do your damnedest to stop safely. You are then assaulted and robbed. And you are the one arrested and you spend more time in jail than most people charged with minor violent offenses. Then the prosecutors come up with some trumped up BS--namely that somehow you should have hit the brakes a second earlier while surmising that you intentionally wanted to scare the people on the highway. It's preposterous and rank speculation.

When arrayed against people with power who will do this to you, best to take the pre-trial diversion. Once the political establishment of Minnesota had set him up as a bad guy, the system had to get anything out of him to justify their actions. What, realistically, was he supposed to do? You and I both know that's the case-guy has a family to feed. In my view, everyone involved with his prosecution deserves LWOP. Seriously. This is an appalling abuse and naked politicization of the prosecutorial power. The judge should have taken one look at the videotape (damn whatever procedure there is) and dismissed the case, and charged the prosecutor with the costs of the proceeding. If Vechriko had said, you know what, screw it, I want full exoneration (his right, of course), they would have done their damnedest to ruin his life. This is tyranny writ small. And would the Minnesota Supreme Court have lifted a finger--doubtful.

If this doesn't absolutely disgust you, then I don't know what would. Governor Walz on down are scum, and all involved have earned Vechirko's white hot hatred.

Posted by: federalist | Dec 20, 2022 10:28:15 AM

And speaking of a corrupt government, there's this:


Posted by: federalist | Dec 20, 2022 10:50:33 AM

I am curious, federalist, if you might speculate about how often you think "the Vechirko treatment" happens in our system --- i.e. the criminal justice system functining with people with power who will do whatever they think is needed to serve their political beliefs and interests. I would be quite interested in (1) how often you think this kind of "appalling abuse" IN FACT happens and (2) how often you think defendant's might reasonably FEAR/PERCEIVE that such "appalling abuse" is afoot and so feel coerced to take a plea in the face of "politicization of the prosecutorial power."

Perhaps you think this happens only 1 out of every 1000 pleas. Even if that's right, that still means we have well over 1000 of these awful cases every YEAR involving felony convictions --- or 4 every single weekday all year long every year --- since there are likely over 1,000,000 felony pleas each year AND perhaps as many as 10,000 of these awful cases every YEAR involving misdemeanor convictions --- or 40 every single weekday all year long every year --- since there are likely over 10,000,000 MM pleas each year. That is one, of many, reasons I am eager for more regulation and transparency concerning the work of prosecutors. Bill always pushed back at my advocacy in this area. Are you prepared to join the groups --- mostly groups on the left --- eager to see a lot more regulation and transparency concerning the work of our very big criminal justice systems?

Posted by: Doug B | Dec 20, 2022 11:36:30 AM

Well, let's look at the Michael Flynn BS. You do realize that the case was tainted with doctored 302s from Jump Street? Funny how you really didn't look into that one. Probably 'cause you are more sympathetic to drug dealers who were lucky enough to plead down to

I think generally, situations like Vechirko's are, thankfully, rare. Kim Potter is another example of politicized justice, and I'd add Officer Nero (in the Freddie Gray case) too. However, when they happen, they bring the entire justice system into disrepute since they happen in plain sight. How in the world can ANYTHING the highest court in Maryland be legitimate if it did nothing in the face of Mosby's prosecution of Nero? And same with Vechirko--what happened to him happened in plain sight, and the system is just cool. Where were all the law profs then?

And where were all the law profs when "Judge" Boasberg swallowed whole that Clinesmith argument about doctoring actual evidence because he thought the emails were wrong. Lawyers don't submit doctored evidence--period. (Additionally, as Andrew McCarthy has demonstrated, Clinesmith was playing fast and loose with ethical standards and knew exactly what he was doing.) https://www.nationalreview.com/corner/responding-to-charlie-savage-on-my-clinesmith-series/

As you know, Professor Berman, I have no problem with holding all government officials accountable for abuse. And state Supreme Courts have been woefully inadequate at policing the bench and the bar for outrageous conduct.

Posted by: federalist | Dec 20, 2022 12:57:04 PM

While I am at it, Doug, where were you on the Ferguson report? It let the prosecuting attorneys off the hook for some pretty egregious abuses. (One Deputy DA did get nailed, however.)

Posted by: federalist | Dec 20, 2022 12:58:50 PM

federalist, most of the lawprofs I know are trying to spotlight what they see as criminal justice system abuses and are often looking to hold "government officials accountable for abuse." For example, many are eager to do away with absolute and qualified immunity --- doctrines which seem to have little constitutional pedigree and ought to be of great concern to any true textualist/originalist. Are you supportive of eliminating or greatly restricting absolute and qualified immunity?

Meanwhile, what is your basis for saying "situations like Vechirko's are, thankfully, rare"? If we just focus on known wrongful convictions (which I fear only the tip of politicized government abuses/misconduct), the National Registry of Exoneration has nearly 3500 cases chronicled and well over half of all cases there are coded as involving "official misconduct": https://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx

And, based on their data, some notable racial patterns are seen in the types of crimes that produce exoneration of the wrongfully convicted:

Because humans run our criminal justice systems, I think human errors of all types are very common, not rare in any sense. Also, because humans are "political animals" in many sense of those words, I think politics plays a major role in most prosecutions and other CJ decision-making. And I sense the vast majority of people who are impacted by the justice system --- victims and defendants --- would not assert that problems are rare (or non-political) in this system.

I find it notable and telling you readily identify lots of problems in lots of the cases that you seemingly care about, but then still are inclined to guess that the system gets it right 999 times out of 1000. Forgive me for not understanding how you run the numbers.

Posted by: Doug B. | Dec 20, 2022 2:58:21 PM

"I find it notable and telling you readily identify lots of problems in lots of the cases that you seemingly care about, but then still are inclined to guess that the system gets it right 999 times out of 1000. Forgive me for not understanding how you run the numbers."

I didn't "run the numbers." I made a guesstimate. QI is obviously a problem, and Clarence Thomas has suggested chipping away at it based on time to make decision, which I wholeheartedly support. With respect to originalism/textualism, you need to be careful--recall that statutes weren't drafted with the same degree of precision that obtains today. So, in my opinion, construing old statutes needs to take into account the great difference in drafting methodology--everyone laughs at Holy Trinity, and I would also, if we're looking at a modern statute. An older one, not so much. By the way, no one, to my knowledge, has made the distinction between older and newer statutes when it comes to interpretation.

Politics obviously plays a huge role in prosecutions. And as I have posted previously, politics IS often completely ok when it comes to prosecutions/enforcement priorities. But there are times when it is just not acceptable--like in the case of Vechirko--what was done to him, and it's funny that you cannot come out and just admit it, was appalling. Powerful political leaders got their facts wrong, and it led to a crime victim getting put in jail. They then trumped up charges--how in the world can they say that because they believed he wanted to scare them off when he obviously did his damnedest to stop. (They seem to have elided his attempt to flee--at low speed--once he was being attacked with his actions when confronted with the initial situation). Even if they "believe" that--where's the evidence? Nowhere. I suspect that because it's DFL people that did this, it just isn't that big a deal to you. Vechirko was first a victim of idiot MNDOT morons who couldn't close a highway on time and then a prosecution designed to cover the butts of the powerful who made erroneous statements. Disgusting is too good a word for it, and last I checked, law profs, who tend to get all atwitter over a guilty guy's death sentence, are silent as a class.

There are also serious issues with the Kim Potter prosecution--go read the statute under which she is charged. Does ANYONE think that there is evidence that would support the conclusion that she had conscious awareness of the fact that she was using the gun vs. taser?

Do you even read some of the arguments for innocence--Troy Davis, to take one example. Your side has a serious problem when it comes to real innocence cases. But I will give you one--the Ohio Supreme Court just hammered a judge who erroneously held someone in contempt--15 days in jail. Where does that young woman go to get her time back--and why was this judge in the position to do that given her previous bizarre behavior? Let's see you write something critical there before whining that I have not the time to study each and every innocence case that comes down the pike. I support a lot more accountability--I just hope it's the right kind--I, for example, to pick some ancient history, have zero problems with the Jena 6 prosecutions.

Posted by: federalist | Dec 20, 2022 3:35:27 PM

And let's bring another example of a thoroughly politicized prosecution--the prosecution of those who "stole" Ashley Biden's diary. Since when is a federal case brought over property abandoned after a move-out?

Posted by: federalist | Dec 20, 2022 3:52:16 PM


Ha ha--so windfarms commit crimes, but Joe Biden tells us that wind is the way to go?

Posted by: federalist | Dec 20, 2022 3:56:10 PM

As is always tiresome and telling with you, federalist, you see the CJ world in terms of political "sides." I have a distinct frame when it comes to CJ issues: I see a powerful set of (often unaccountable) government actors using the crimnal justice system, driven by all sorts of political and parochial interests, and individuals who can get chewed up by the CJ system in all sorts of ways. Vechirko certainly seems an ugly example of that, though he has suffered less than so many who have been wrongly convicted and incarcerated.

Glad to see you say "QI is obviously a problem," but that is only one of many problems. You apparently also see problems with jury trials, too, since you keep harping on the Kim Potter prosecution and verdict. So, based on the cases you are keen to stress, it seems you do not trust deals (Vechirko) or trial convictions (Potter). Given that you find these cases so suspect, why do you "guestimate" that so many others are sound? As you know, these were high-profile matters (as was Flynn et al.). Do you really think the CJ system runs better in the shadows? Aren't there all sort of reason to fear that less prominent cases are subject to even more errors and biases, and ones that never get seen?

I am not a capital punishment abolitionist, but I would think your own criticism in cases like Potter --- where there was a jury verdict of guilt --- would enable you to at least understand why some folks are inclined to assume that every death sentence reflects some kinds of biases and that an error-prone and politicized CJ system ought not impose the ultimate punishment. I do not personally go that far, but the very flaws you like to lament serve to further reinforce my eagerness to be skeptical about all used of criminal justice powers by governments.

Posted by: Doug B. | Dec 20, 2022 4:06:31 PM

I guesstimate that the vast majority of plea bargains reflect run of the mine guilty people because if it were more than that, we'd see all sorts of dislocation etc. The dog isn't barking, so to speak. And I think part of my sense comes from the fact that so many "innocence" cases turn out to be very weak, see, e.g., Troy Davis as do prosecutorial abuse cases, see, e.g., the Jena Six. The anti-cop crowd does dumb things like yap about Darren Wilson when they should have been focused on Tamir Rice. But let me be 100% clear, and my posts have ALWAYS reflected this, I do not like injustice at all. I think what happened to Rice was criminal, and I am appalled. I don't understand the zeal to roll up on a kid, and, by the by, there should have been a prosecution for handcuffing his sister--where was the probable cause?

I love your little deflection on Kim Potter--the issue isn't the jury verdict, it's the lack of probable cause. Surely you know that before a charge is filed, the prosecutor is supposed to have probable cause. Well, look at the statute under which she was convicted. It requires more than mere negligence--it requires a conscious awareness of what she was doing, and there is no evidence of that. All the evidence points in the other direction, and, by the by, evidence doesn't come from speculation that she must have known she was firing a gun vice taser. In order words, a jury verdict doesn't insulate the prosecutor's decision here. This stuff is all out in the open, and yet, here we are. Pretty scary.

As for Vechirko, we both see that case as a problem. But I'd lay dollars to donuts that you'd vote for Walz if you were a Minnesota resident, even though he is scum for his participation in what happened to Vechirko.

These cases are different. With Potter, it's really mob justice. With Verchirko, it's just DFL butt-covering, nothing personal. With Officer Nero, just the racist idea that we can't let a white cop walk, so let's try to send him to prison. With Ashley Biden's diary, it's just the DOJ acting as a Praetorian Guard.

The run-of-the-mine cases stem from different issues--hackery, incompetence, trying to make a name, feeling that you have to side with cops etc. etc., and I am all for accountability. And guilt covers up a lot of errors--I don't say that to be flip, but in the work=a=day world, if they got the right guy, and there's no improper motive (like DFL butt-covering), then there just isn't enough time. But you fancy yourself as someone who speaks truth to power--where are you on calling out Supreme Courts when they don't hammer prosecutors? You're a law prof--most lawyers cannot call out state Supreme Courts. That's one huge reason why the state CJ system isn't as good as it could be, and from your perch, you could use the bully pulpit.

Posted by: federalist | Dec 20, 2022 4:43:32 PM

The more you say, federalist, the more I am confused. What do you mean by "all sorts of dislocation" if there were lots of wrongful convictions/pleas? Isn't modern mass incarcertation exactly that "dislocation" relative to US history and world incarceration rates? What other form of dislocation do you mean?

And, if a jury finds a factual element of a statute proven beyond a reasonable doubt, that does vindicate a prosecutor's judgment that this element has been established by at least probably cause. Wouldn't a defendant be laughed out of court if he claimed, after a jury verdict of guilt, than the indictment should be thrown out on the same charge for lack of probable cause? Can you point to any ruling or anyone arguing that a BRD finding by a jury does not support a PC finding on the same fact by other legal actors? Maybe I misunderstand what you are saying, but it seems you are claiming that probable cause is a higher standard than BRD or are making some other curious claim because you disagree with the jury verdict in the Potter case.

As for your broader curious accounting of which injustices should garner attention, it seems you want to (a) assume most folks are guilty, even though you claim to be suspect of prosecutors, deals and even guilt by jury trial, and (b) just give a pass if the injustice if not driven by an "improper motive" but rather "hackery, incompetence, trying to make a name, feeling that you have to side with cops, etc." Huh? Who makes the call on what injustices were driven by proper or improper politics? Why does the victim of hackery and incompetence get less concern, especially given that those harms are likely more prevalent and might be diminished if we had more transparency and accountability?

The world you have contructed in your mind, federalist, makes no sense to me.

Posted by: Doug B. | Dec 20, 2022 5:07:38 PM

Doug, if completely innocent people were getting railroaded generally, the dog would bark more. That's not a perfect answer, of course, and I fully support figuring out how we get more competent judges, prosecutors etc. etc. I call on you and your fellow academics to call out state Supreme Courts for not doing a better job overseeing judges and prosecutors.

As for Potter, forgive my ignorance, but we do have mistaken jury verdicts, do we not? Isn't that why there are reversals on sufficiency of the evidence claims, or did I miss that day in law school? The bottom line is that the second degree manslaughter statute just doesn't fit:

A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:

(1) by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another; or

(2) by shooting another with a firearm or other dangerous weapon as a result of negligently believing the other to be a deer or other animal; or

(3) by setting a spring gun, pit fall, deadfall, snare, or other like dangerous weapon or device; or

(4) by negligently or intentionally permitting any animal, known by the person to have vicious propensities or to have caused great or substantial bodily harm in the past, to run uncontrolled off the owner's premises, or negligently failing to keep it properly confined; or

(5) by committing or attempting to commit a violation of section 609.378 (neglect or endangerment of a child), and murder in the first, second, or third degree is not committed thereby.

If proven by a preponderance of the evidence, it shall be an affirmative defense to criminal liability under clause (4) that the victim provoked the animal to cause the victim's death.

There is no evidence that Potter had conscious awareness that she was firing a gun rather than a taser (no, and I didn't miss this day in law school, evidence isn't "Well, I don't believe her, so I can find the opposite of what she said.") With no evidence, there's a sufficiency problem. And the prosecutors should have known this (they probably did) and not gone forward with the manslaughter charge. That's the ethical obligation, and it is not papered over by a jury verdict. Or at least it shouldn't be.

I didn't say a victim of hackery etc. get less concern--what I said was that there may be these things, but they generally don't matter if the person is guilty. And yes, I focus more on innocence. Sorry. And even you can understand the absolute corrosiveness of the ugliness that happened to Vechirko. An innocent crime victim was arrested (when his attackers were not), and he spent time in jail because the DFL establishment in Minnesota jumped to conclusions. And lawyers, those with a duty to NOT do things like this, jammed him with some pre-trial diversion when they should have dropped the charges.

Posted by: federalist | Dec 21, 2022 4:38:27 PM

I am not an expert on Minnesota law, but I have seen this definition of the key mens rea term you reprint: "'Culpable negligence' is intentional conduct that the defendant may not have intended to be harmful, but that an ordinary and reasonably prudent person would recognize as involving a strong probability of injury to others." That would seem to be an apt description of Potter's decision to tase, of her mistaken use of the gun, and of her failing to get help immediately thereafter.

Here is an NPR accounting of the prosecutors arguments: "Whether Potter had intended to draw her Taser or handgun was not at issue in the trial. Lawyers for both sides agreed she mistakenly drew the wrong weapon. Instead, the trial centered on questions of whether she should have recognized she was holding the heavier metal gun or whether she should have drawn any weapon at all....

Prosecutors did not dispute that the shooting was an accident. But they said that in her 26 years on the force, Potter had undergone extensive firearm and Taser training, including how to avoid confusing the two. They turned to use-of-force experts and the police department's policy handbook to argue that the use of a Taser was inappropriate to begin with."

You may think the jury was wrong to find Potter guilty beyond a reasonable doubt, but it is truly laughable after that verdict for you to be asserting there was a lack of PC for charges.

Not laughable are more recent Florida cases that seem somewhat like a politicized Vechirko situation. I mean the voter fraud cases discussed in this NPR artice:

Do you share my view that there are ugly improper politics involved here and that everyone involved in these cases merit "white hot hatred"?

Posted by: Doug B. | Dec 21, 2022 7:17:06 PM

Wow. You're not an expert in MN law, but then you say that it is laughable that I say that there was no PC---ha ha ha ha ha. Read the statute, which I have quoted. The statute requires both negligence AND a conscious action (i.e., conscious awareness that she is holding a gun.) The statute does not pick up what she should have appreciated, but what she was actually conscious of. There is zero evidence that she was consciously using the gun vs taser. And what evidence there is tends to negate it. Let's get that right. Heck, the prosecutor's words show that these actions were outside of the statute. That a law professor would fail to see this is shocking.

Now that you seem to have accepted the idea that the Vechirko stuff was appalling we can turn to what, a bunch of felons illegally exercising the franchise because they got a card from the state. Pretty thin gruel.

And then there's Mosby's racist prosecution of Officer Nero . .. .

Posted by: federalist | Dec 21, 2022 11:58:15 PM

Please note that Minnesota's statute appears to be based on the MPC ideas that criminal punishment doesn't attach to ordinary negligence or true mistake/accident.

Posted by: federalist | Dec 22, 2022 12:00:27 AM

It is laughable, federalist, that you claim that there is no basis for a prosecutor finding PC after a jury made the same finding BRD. You have failed to cite a single example in the history of the law (or even a law professor's argument) that a legal actor should be faulted for finding PC in the wake of a jury making the same finding BRD. As a law professor, I care about the actual law, not about your partisan-distorted fantasy beliefs. Do you have any law anywhere to support your (laughable) assertions here?

As for MN law, you misrepresent it when suggesting the statute requires "conscious awareness that she is holding a gun" OR "consciously using the gun vs taser." Rather, the statute expressly requires that someone "consciously takes chances of causing death or great bodily harm to another." The consciously risky decision to tase someone behind the wheel of a car, the conscious decision not to double-check that one was holding a gun rather than a taser before shooting someone behind the wheel of a car, the conscious decision not to provide aid after shooting someone behind the wheel of a car all seem to provide more than a viable bases to establish the actual elements of this statute. And, of course, the defense totally failed to convince either the trial judge or the jury of your partisan hack theory that "the prosecutor's words show that these actions were outside of the statute." And is Potter even appealing the jury verdict?

Finally, your partisan stripes show ever so clearly again when you are so dismissive of the obviously politizied Florida voter fraud prosecutions. The applicable statute requires that a person "KNOWINGLY votes or attempts to vote a fraudulent ballot." http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0100-0199/0104/Sections/0104.16.html. All the evidence I have seen is that the persons being prosecuted here (for obviously political purposes) all reasonably believed that the voter cards they received from the state meant they were legally eligible to vote. Ergo, they did not KNOWINGLY vote a fraudulent ballot.

Also, were you not such a hack, you'd review the NPR piece to see the state is offering Verchirko-like deals because all seemingly realize these are politically trumped-up charges:
"This [threat of prosecution] pressure is why at least one of these defendants — Oliver — recently took a plea deal. Her lawyer, Rankin, said the state gave her an extremely attractive plea offer she just couldn't turn down. He said they allowed her to plead "no contest," which means she did not admit that she did anything wrong. Prosecutors also dropped one of the charges. "And she had zero punishment in her case," Rankin said. "She had no jail time, no fine, no community service, no cost of prosecution or investigation — which usually apply — no probation. She just completely walked away."

In a statement to NPR, the statewide prosecutor, Nick Cox, said "each case is unique" and that Oliver's particular case stems "from a negotiated plea bargain."...

The political parallels to the Verchirko case should be obvious to anyone who is not a partisan hack. But your dismissiveness of Florida's politicized prosecutions reveals, yet again, that you have no real principles here but are just a rank partisan hack whose parisanship badly distorts how you look at these matters. But I guess I should not expect a partisan hack to change his legally confused stripes.

Posted by: Doug B | Dec 22, 2022 8:50:28 AM


First of all, for starters, you made a legal error, and we need to get that right. The PC standard isn't met merely because, after the fact, the jury convicted. Second, regarding the felon voting issue--are you saying that the cancelling out of a legitimate vote by a felon's vote is just not a big deal? Are you saying that ignorance of the law is somehow an excuse (it may be mitigating in terms of punishment)? That's not usually how it works. Here it looks like the "knowingly" applies to the act of voting.

You say there are parallels to Vechirko--not really.

Vechirko was completely innocent. And a crime victim, yet he was the one arrested. Those guys were disenfranchised felons taking away someone else's vote. Let's get that right. And, by the by, Vechirko actually had to suffer the indignity of having to apologize to the so-called victims and pay money to them. Horrendous.

As for Potter, your "defense" of her conviction (when all agree it's a "mistake") is curious indeed. For the perspective of a MN lawyer, there's this:


The idea that the taser use may have been problematic (although your statement that he was "behind the wheel" distorts the facts) is more of a smokescreen than an actual argument, as there is no evidence that she was consciously causing a risk of substantial bodily harm. And whatever risk of tasing a guy who was struggling inside a car, it wasn't the risk of being shot by an actual gun. Are you saying that a righteous tase situation would NOT support a conviction here?

Potter mistakenly pulled a gun--that she should have realized it was a gun doesn't satisfy the statute. That the tase was allegedly questionable isn't a hook to convict her. This, as all agree, was a pure accident. The mens rea is "consciously"--that she consciously attempted to tase a resisting suspect doesn't support consciously creating the risk of death or substantial bodily harm. Thus there is no evidence from which she can be convicted, and this was obvious from the start.

Posted by: federalist | Dec 27, 2022 11:12:44 AM

I did not make any legal error, federalist, I made the point that it seems laughable to me for you to harp on a prosecutor for having decided there is PC to support a charge when a jury subsequently concluded this charge was proven BRD. And, of course, you are not just impugning the jury's findings, but also the judge who concluded that both the charge and the convictions were sustainable as a matter of law. Of course, like many on the left and the right are often inclined to say when it serves their partisan perspectives, you can say that in this high-profile case you think the jury got it wrong AND the judge got it wrong AND the prosecutor got it wrong. But then I return to being puzzled by when you seem to also want to say that you think the system gets it right 999 our of 1000. (Also, I continue to wonder if Potter even bothered to appeal something you claim now is "obvious from the start." I think she is getting close to completing here prison term, but I can find no reports about an appeal. Can you?)

I have now repeatedly asked you to provide a single example in the history of law in which a prosecutor has been faulted --- absent the manufacturing of evidence or other misconduct --- for finding PC for a charge after a jury has found that charge sustained BRD. Can you cite me any? Absent your ability to provide any examples for what still strikes me as a laughable claim, I will continue to view your perspective as one informed by partisanship rather than by legal knowledge. Of course, many have views on the law greatly informed/influencd by partisanship.

Further, it seems far-fetched that the "knowingly" term in Florida's felony law should be interpretted to modify only "vote" and not also "fraudulent ballot." Is it possible to accidently or recklessly vote or attempt to vote? Voting is an act that can only be done knowingly (or really purposefully), and so the use of the term here clearly means that only persons who know they are fraudulently voting or attempting to vote are guilty of a felony. Is a Floridian who accidently/innocently shows up to vote at the wrong precinct before going to the right one guilty of a felony (or, perhaps more commonly, a person who accidently/innocently inaccurately writes down her name/address/SS# when requesting/submitted a mail-in ballot)?

The key parallel point is that, as in Vechirko, politically motivated prosecutors and state actors turned something that should be viewed as, at worst, an innocent mistake (and that arguably was the fault of state actors) into a criminal prosecution to score political points with a certain partisan constituency. Your partisan stripes, federalist, apparently make it hard for you to see the parallel example of problematically politicized use of the criminal justice system. I guess partisan hacks are always gonna hack (and make whatever legally obtuse claims are needed to support their hackery).

Posted by: Doug B. | Dec 27, 2022 2:03:44 PM

Impugning the jury's findings? That's a laugh--are you now going to call out all the people who've ever referred to an "all-white jury."

Don't really care that prosecutors are not generally faulted for bringing up charges that are on their face BS--isn't it you that have decried the lack of accountability? Marilyn Mosby, the woman who unfairly prosecuted Officer Nero for the Freddie Gray death, was brought up on a bar complaint, but nothing happened--even though the ethics rules say that prosecutors shouldn't be bringing up charges without PC, and if you look at the facts of the Freddie Gray death, there is simply no way that Nero committed murder.

With respect to Florida felon voting, does the fact that the state mistakenly sends out an application mean that some felon, contrary to law, gets to vote and cancel out the vote of a lawful voter? Not likely--seems that a fair read of the statute is that it's up to the felon to know that he is disenfranchised and act accordingly and not rely on what they relied upon. A felon that was ineligible to vote voted. I guess that's not a problem to you--talk about partisanship lol.

As for Potter, you can name-call all you want, but you have a statute that requires consciously subjecting another human being to a risk of death or serious bodily injury--tasing a guy just isn't that. The risk she consciously subjected him to was tasing him, which isn't a risk of death or substantial bodily injury. There's just no way of getting around that, and saying that she shouldn't have tased him is completely besides the point. The legal question is whether there is any evidence that Kim Potter consciously subjected him to the risk of death or substantial bodily harm. The answer to that question is no. Hence, the charges should not have been brought. You also cannot be blind to the reality that the prosecutors, judge and jury were operating in a very difficult environment. What would have happened had the judge dismissed the manslaughter charges? What if the jury acquitted? I think we all know that there was a strong possibility of violent unrest.

As for Vechirko, you struggle to conflate the felons illegally voting with a crime victim being the one getting arrested and prosecuted. But I guess you're cool (even though you do say that Vechrirko was wrongly treated) with the DFL in Minnesota pulling out all the stops to protect itself. I suspect you were pretty cool with the Biden Administration prosecuting the people who "stole" Ashley Biden's abandoned diary.

As for getting it right, you do realize that I was talking more like results, rather than every i being dotted and t being crossed. Innocence is rare (thankfully). But you and I are in agreement--I do want to see more accountability. I don't want to live in a society where some poor trucker doing his job gets assaulted then charged because the political establishment jumped to conclusions and then leveraged the power of the criminal justice system to paper over their mistake, forcing that demonstrably innocent person through the maw of a criminal prosecution. And I also don't want to see felons voting illegally.

I don't think there is any fair-minded way of calling anything that I have written "hackery." There are fundamental differences between prosecuting felons who illegally voted (with a slap on the wrist due to the mitigating circumstances) and what happened to innocent Vechirko. As I've noted before, politics is going to be involved with prosecution--a prosecutor may not like domestic violence and will drop the hammer in those cases. A prosecutor may not like pimps. Etc. There has to be a wrongness associated with it. And with Vechirko, there are all sorts of wrong. Normal practitioners can't really get away with calling out the courts for this crapola. But law profs can. Law profs can call out state Supreme Courts for looking the other way (wasn't there a case with some wacko judge in Cleveland that got away with crazy antics for a long time until removed from the bench?) Practitioners cannot. If you want more accountability, Professor Berman, then you're one of those few people that can harshly rebuke the courts. I for one would support it.

Posted by: federalist | Dec 27, 2022 3:10:25 PM

federalist: you keep claiming that the "obvious" facts in the Potter did not support even a charge, let alone a conviction. By so claiming, you are impugning the work of the jury that rendered a conviction BRD and the judge who sent the charge to the jury as well as the prosecutor. Are you willing to just own that or does your partisan hackery mean you will only claim to be attacking the work of D officials when in fact you are impugning the whole system in this case (and I still wonder about an appeal)? Moreover, you should be able to see how your attack the Potter verdict makes you like many other partisans --- on both side of the aisle -- whose (often uninformed or under-informed) opinions are the basis for impugning the work of people who swore an oath to try to follow the law.

And your patisanship leads you to conflate two issues in the Florida cases --- (1) whether persons with certain past convictions can lawfully vote and have their votes counted and (2) whether persons with certain past convictions who were led to believe by state officials that they can vote can be criminally prosecuted for a felony under a statute that only criminalzes "knowingly" casting a fraudulent ballot. I know you are smart enough to understand that distinction, but your eagerness to defend GOP-politicization of the criminal process in Florida leads you to try to defend what is parallel with what you are so eager to attack on the D side in Minnesota.

This is not about allowing people to be "voting illegally." It is, to paraphrase your words, about some poor persons trying to do their civic duty by voting who are "then charged because the political establishment jumped to conclusions and then leveraged the power of the criminal justice system to paper over their mistake, forcing that demonstrably innocent person through the maw of a criminal prosecution." It is the same basic story of the criminal justice system being used by political actors driven by political forces to churn up persons who, at worst, were involved in an innocent mistake. And your failure to see the parallels is what makes you a partisan --- you are unable to see that you are so eager to defend "your team" in Florida (with weak reasoning and logical mistakes) when that team does just what you condemn the "other team" for doing in Minnesota.

Posted by: Doug B. | Dec 27, 2022 4:14:56 PM

What evidence is there that she "consciously" subjected the criminal to risk of death or substantial bodily harm? It ain't the tase.

With respect to the voting--come on, they are felons, and they voted. Are you really saying that because they got some letter or something that their voting is somehow not criminal as a matter of law? Hmmmm. Sounds like a fact question for a jury. Funny how you say that they were "doing their duty" when their criminal behavior made it not their duty. And their "innocent mistake" sounds like a "mistake of law" defense, which are generally frowned upon. Vechirko was completely innocent; they were not. Let's start by getting that right. And I notice there's nothing on Nero or the Ashley Biden diary prosecution, which should absolutely sicken anyone.

Posted by: federalist | Dec 27, 2022 4:33:13 PM

And it's funny that you don't care about the cancelling out of legal votes with felon votes . . . . and I am the partisan, ha ha ha ha ha.

Posted by: federalist | Dec 27, 2022 4:44:43 PM

Have you read the trial transcripts in Potter? I have not. Do you even know if the defense moved to dismiss on this ground and if the judge ruled on it? I will readily admit to being under-informed on this issue because I do not have the time to follow every high-profile trial closely. But I know the judge and the jury weighed in based on more information than I have, and your claims here impugn their work. Do you claim to have more information than they did? Interesting that you are eager to assert that mental state is a fact question for the jury in another context but do not trust the Potter jury on this front --- your partisanship is showing yet again.

Meanwhile, Florida law requires someone to KNOWINGLY cast a fraudulent ballot and there has been a series of efforts (eg Amendment 4) to restore the voting rights of those with prior records. The innocent mistake was thinking their rights had been restored --- in part because the state had given them a voter registration card --- and Florida law says their mistake is not criminal unless/until they KNEW that they casting a fraudulent ballot. You are right that this can be a fact question --- but the same could be said for Vechirko being charged with operating a vehicle in a "grossly negligent manner" after he allegedly admitted he was "kind of in a hurry" --- and all the evidence in Florida indicates that politics, not concerns about protecting the franchise, explain why so many are being charged on evidence that is so weak.

My point here is not to relitigate Vechirko --- I agree that his innocent mistake should not have led to criminal charges --- but rather to just note yet again that your complaints about politicized prosecutions run only one way and showcase your persistent partisanship. Gosh knows, I sometimes think calls go against OSU, but I own my partisanship when I root/complain that way. But you, federalist, do not want to own (and perhaps still cannot see) how your partisanship shapes your thinking and your complaints about the system. And, like all partisans, the power of your commentary gets muted because it so often appears politically convenient rather than persuasively consistent.

Posted by: Doug B | Dec 27, 2022 5:03:51 PM

federalist, the fact that you assume "felon votes" always go to one party serves as yet another example of your partisanship. And that you keep trying to talk about counting votes rather than politicized criminal prosecutions is so obtuse --- which would be like me saying your Vechirko complaints show you don't care about truckers driving through crowds --- suggests a bit of extra denseness comes with your partisanship.

Posted by: Doug B | Dec 27, 2022 5:11:07 PM

Wow. Vechirko was in kind of a hurry--so what? The whole thing is on videotape--he comes around a bend, sees a massive crowd on the highway and honks his horn and comes to a complete stop. And then his truck is set upon by a mob. They bear him and rob him, and he's the one arrested. That you would even suggest that he made an innocent mistake is just ridiculous. He didn't do anything wrong, and did his absolute best to avoid a calamity. Maybe he was speeding, maybe, but no evidence of that. And that isn't grossly negligent anyway. Vechirko's prosecution was appalling. Funny that you just cannot admit that. And are you good with the Nero prosecution? The Ashley Biden dairy prosecution?

As for the Florida cases, why did the one woman get a voter registration card---because someone told her she could register, and she did. Sorry. It's not improper to prosecute her--and her vote cancelled someone's legit vote (whether D or R, I don't care). I love the "someone told me" defense. It was completely improper to prosecute Vechriko. Let's get that right. And I am not sure that Florida law is as you say it--it was likely her responsibility, you know, being a murderer and all, to figure out whether she should have registered to vote and then voted. The dead person couldn't be reached for comment.

As for Potter, once again, if all agree that she mistakenly (and in a split-second) grabbed gun vs. taser, then you cannot satisfy the element of consciously creating the risk of death or substantial bodily injury. It really is that simple. The idea that she shouldn't have tased in the first place should be a tell to you. It's irrelevant and inflammatory. Am I impugning the judge and jury? Nope--interesting the lese-majeste position you're adopting. It's just pointing out a plain problem with the prosecution.

Posted by: federalist | Dec 27, 2022 6:15:57 PM

The other thing, which you may not have considered, is that there are all kinds of BS "woe is me" cases made about criminals who get prosecuted, and I've seen many in here--but good grief, I never see anyone standing up for people like Officer Nero, Bogdan Vechirko or even Kim Potter. Potter made a mistake--a tragic one--but a mistake nonetheless. Generally, we don't punish people for simple accidents. The MPC was drafted that way. She was confronted with a criminal who was resisting, and she tried to tase him. Do we put people "in a cage" for that with that statutory language? Call me dubious. And you can look at my debate with Bill Otis on C & C over the BS (in my opinion) prosecution of John Edwards, who, I think we all can agree, is just awful.

Posted by: federalist | Dec 27, 2022 6:30:29 PM

federalist, you plainly view Potter's prosecution as a "problem" and believe, even without having reviewed the trial evidence, that the jury which heard all the evidence got the verdict wrong. That puts you on par with lots of other partisans who think they know the right outcome in certain cases even without knowing all the relevant evidence.

Like many others with (under-informed) opinions, you certainly can assail the work of the judge and jury without knowing all the evidence. But own up to the fact that this is what you are doing -- and that partisanship, not review of all the relevant evidence, drives your conclusions. It is really that simple.

Similarly, as a partisan, you are eager to defend politicized felony fraud prosecutions in Florida. The fact that a prosecution is politicized is tellingly not your real concern, rather you just want to assail the "other team" (which you like to call 'rats) and to defend "your team." Of course, misunderstanding the law or not caring to review all the relevant evidence helps you make the case for your partisan team.

Finally, we do punish people for accidents that result in death. Consider, for a recent example, the case of Rogel Aguilera-Mederos. Based on what I have read (and I will readily admit not having reviewed all the trial evidence), he was sentenced to 110 years in prison for what was essentially a highway accident. The sentence was commuted to 10 years, but he remains locked in a cage for a decade for a deadly accident.

Posted by: Doug B. | Dec 27, 2022 9:00:48 PM

Oh good grief. I saw the video--which is all you need to see. My argument is compelling. Watch the video--where's the evidence that she consciously created risk of death/SBI? Remember, the fact that they tried to impugn the taser shot is a dead tell (also, was used to rebut the argument that shooting him was justified, which I don't think was good trial strategy). The prosecution agreed that she didn't mean to shoot him . . . . so where's the conscious creation of risk? You're just name-calling now mixed in with an appeal to authority.

As for "accident"--how fast was that guy going, and didn't he know that his brakes weren't working? Plus he was going more than 40 mph over speed limit in a semi. That's more than an "accident" and you know it. Far cry from pulling gun vs taser in a stressful situation.

As for Florida, a person barred from voting by law voted. The one person has an excuse, but really, the "someone told me I could" immunity (because that is what you are arguing for is just BS). An illegal vote cancels out a legal one--there has to be a law enforcement response to illegal voting.

Posted by: federalist | Dec 28, 2022 9:19:41 AM

impressive stuff here, federalist: "I saw a video on the internet and so I clearly must know better than the judge and jurors who considered all the evidence at the trial." You so readily impugn the work of judge and jury without reviewing the actual evidence they considered because, as a partisan, your mind is already closed.

Also, saying "there has to be a law enforcement response to illegal voting" is another obtuse variation on saying there has to be a law enforcement response to police killing civilians or to truckers driving through crowds. The issues that you claim concern you are the "politicization of the prosecutorial power" and the "tyranny writ small" that flows from "the political establishment jump[ing] to conclusions and then leverag[ing] the power of the criminal justice system to paper over their mistake, forcing that demonstrably innocent person through the maw of a criminal prosecution." But your partisanship leads you to here bemoan such issues only in very select cases (and without even a review of all the relevant evidence). That is not name-calling, it is a fair accounting of your commentary.

Posted by: Doug B. | Dec 28, 2022 10:38:48 AM

OMG--not "a" video--"the" video, i.e., of the shooting and Officer Potter's subsequent reaction. That's really all you need to see, given that the prosecution does not dispute that she didn't intend to pull out a gun, but rather a taser, and that means that the "conscious" creation of risk of death/SBI didn't happen. This isn't hard. You fail to engage on that issue, and I notice that you've dropped the whole "well, she shouldn't have pulled out a taser" and you've failed to acknowledge the atmosphere surrounding the trial. Questioning my motives doesn't obviate my critiques.

As for the voting prosecutions--I think your bias is coming through. An ineligible person "thought" that they were eligible and then registered to vote and then voted. That person cancelled out someone else's vote. And the idea is, what, that a prosecutor seeing the fact of a murderer voting is somehow a bad guy? That's a stretch, and it is a far cry from some poor truck driver who took action to prevent carnage and for his troubles, was beaten and robbed and then arrested. You just think that murderers should have the franchise. Well, they don't in Florida. It is also telling that you engage in sophistry when describing Vechirko's actions--he had a right to operate the truck where he was operating it, and he came upon a crowd on an interstate. It's perfectly justifiable for a prosecutor to believe that felons voting when they are not legally able to vote should be a prosecutorial priority. (That's a political decision, by the way, but not a bad one.) However, it's out of bounds to prosecute Vechirko, as (a) where's the crime and (b) the motives here were awful.

Even you cannot fail to acknowledge that there was probable cause to arrest the murderer-voter.

And it's really funny that you think that the crimes of Aguilera-Mederos don't deserve significant time.

Posted by: federalist | Dec 28, 2022 12:39:21 PM

Here's what I had to say about Aguilera-Mederos:


Yes, this looks like a nasty trial penalty case. I don’t feel that justice was done here.

But the article I link shows another problem with prosecutors"

Posted by: federalist | Dec 28, 2022 12:43:00 PM

The other thing that you may wish to consider--would NPR, the NYTimes or any MSM outlet ever tell a story like Vechirko's--would it raise uncomfortable questions that should be raised (and where are your law prof buddies--still chanting that Mumia is innocent?). Would any of those outlets question the Ashley Biden diary prosecution? (Cat got your tongue there?) Look at the NPR piece--not a hint of skepticism or balance. Perhaps I raise these issues in a fight for balance.

Posted by: federalist | Dec 28, 2022 1:18:35 PM

keep digging, federalist: a video may be "all you need to see" to reach a partisan conclusion in Potter, but the judge and jury heard from 33 witnesses at trial. Again you demonstrate how easy it is to make claims without reviewing relevant evidence when your partisan mind is already made up.

And, yet again, you cannot seem to keep in your head that the issue in Florda is whether a person should be subject to felony prosecution for a reasonable mistake when a statute requires a knowing mistake. You define that as "not bad" politics because it is the politics you favor, and so it is clear you are just fine with the "politicization of the prosecutorial power" when it is the politics you support. You can keep trying to tap dance away from the fact that your partisan views drive your thinking, but your repeated references "'rats" makes it so very plain to anyone who pays attention that politics, not principles, drive your commentary and your thinking.

I do not see any reference to Aguilera-Mederos in the American Thinker link you provide, so I am not sure what you mean to reference there. But I am sure that the links you like to provide serve as yet another indication of your partisan lean.

Posted by: Doug B | Dec 28, 2022 1:29:00 PM

Ah got it now, federalist. You seem finally prepared to concede you are a partisan, but one who seeks to "raise these issues in a fight for balance" (presumably against those "'rats" you like to complain about). Because I welcome all commentors here, you can continue to use this space to make partisan points as part of your "fight for balance." (Perhaps you will even at some point seek to return to your speculation that Donald Trump would prove a more moral Prez than his predecessor.)

Posted by: Doug B | Dec 28, 2022 1:44:14 PM

"I do not see any reference to Aguilera-Mederos in the American Thinker link you provide, so I am not sure what you mean to reference there. But I am sure that the links you like to provide serve as yet another indication of your partisan lean."

My comment is on your blogpost regarding the sentence--the "nasty trial penalty/justice wasn't done" is a direct comment on the original sentencing of Aguilera-Mederos. So there.

It is absolutely shocking to me that relying on the video recording exactly what happened to comment on whether the person "consciously" created a risk of death/SBI--if those 33 witnesses had anything to say that spoke to that issue, guess what, we'd have heard it from the prosecutor--but we didn't--we heard things like "accident" and the idea that she didn't mean to draw the taser. And since NO ONE questions that she didn't mean to draw the gun, there is no evidence that she consciously created the risk of the gunshot. Like I said, this isn't hard.

With respect to Florida, your position appears to be that a prosecutor has to swallow the "someone told me I could register and vote" excuse for voting. Come on. The person illegally voted. You may think they shouldn't have been prosecuted--ok, I'll buy that. But to equate that prosecution with the Kim Potter prosecution given that, after all this brain damage, you still cannot point to anything that can satisfy the "consciously" created the risk requirement. Instead, you're cool with a lot of evidence that suggested that she should have had that awareness then and there. (That sounds like a classic Rule 403 issue.) Felons voted illegally, and being registered does not confer that right.

Of course, you don't have much to say about the Nero prosecution, the Biden diary prosecution--and I've got you engaging in sophistry with respect to Vechirko and Aguilera-Mederos.

Posted by: federalist | Dec 28, 2022 2:02:20 PM

federalist: I am sincerely lost in your partisan maze. You link to a 2021 commentary about Chesa Boudin, and that means what? I am confused as to whether you are agreeing that the original sentence in Aguilera-Mederos amounts to an injustice or whether you are eager to show your partisanship by randomly citing an off-topic commentary that attacks another prosecutor/case having nothing to do with Aguilera-Mederos.

Indeed, this is why your partisanship is so distracting. We are talking about one matter and you then throw out/link other cases and commentary. Why other than to try to score partisan points? (And now it seems you are commenting on nearly two-year-old posts to make random partisan complaints.) Indeed, that's how we got to the Potter case in a post about plea bargaining. And you keep saying "this isn't hard" based on one video, but then claim you are not impugning our justice system without even caring to review the actual evidence that led judge and jury to convict.

Because you are a partisan, you clearly feel comfortable reaching a conclusive judgment without reviewing all the relevant evidence. I do not reach firm conclusions that way, and that is among the reason I have little interest in discussing all the other cases which are of interest to you as a partisan. I have not followed them all closely, and so I am disincled to fight over whatever partisan talking points you want to make. If I had access to all the evidence, I might reach your conclusions or others. But I try not to pre-judge these matters no matter whether it is folks on the left or the right claiming that there can only be one way to look at an issue.

The deep irony here really is that you so readily find partisan cases in which you think politics produces criminal justice dysfunction, but then you also assert that 999 times out of 1000 some kind of "rough justice" gets done. How can you have such disrespect for the prosecutors, judge and jurors in the Potter case while believing 999 other cases are hunky dory?

Posted by: Doug B. | Dec 28, 2022 2:50:38 PM

It's pretty easy to see that I was commenting on the trial penalty and the injustice done to Aguilera-Meredos. The post also had a comment about a prosecutor letting a murderer off. It was worth a read, I am sure. I like to add little asides, so what?

You keep harping on the fact that I did witness the whole trial--in this context, so what? What matters (in this case) is the act and her reaction to it, and that's all on tape. No other evidence addresses her consciousness regarding the creation of risk, and everyone seems to agree that she mistakenly pulled the gun vs. taser. The statute doesn't fit that conduct. Period. You don't show how it does. And the snipes about "one video"--gimme a break--it's the actual shooting and reaction thereto.

Never said the other 999 were hunky dory, just not mistaken when it comes to guilt vs. innocence. Big difference.

Posted by: federalist | Dec 28, 2022 3:53:06 PM

Your "little asides" are pretty consistently partisan, federalist. You are welcome to keep up your "fight for balance" (against those "'rats") in this way, but it just demonstrates your eagerness to make (sometimes off-topic) partisan points.

And you keep digging on Potter when saying "no other evidence" matters other than the video you think conclusively proves Potter innocent. That opinion of yours is inconsistent with the rulings by the judge and the verdict of the jury after they considered the full evidentiary record.

You certainly can believe the entire "criminal legal system" including judge and jury was rigged against Potter. (I assume you also blame incompetent defense attorneys, appeals judges as well as the trial judge, and many other flaws oft cited by other defendants.) Various people think the entire "criminal legal system" is rigged in various ways due to "politicized justice." I generally want to see all the evidence in the record before I reach a firm conclusion in any case. But you clearly think watching the video is enough to reach a firm conclusion here, just like lots of others in lots of other cases reach firm conclusions without reviewing all the evidence.

And, though believing you see such an obvious wrong and so much dysfunction in this high-profile case (and all the others you flag), you still think in 999 cases out of 1000 we ought to assume rough justice is achieved. I guess that's just how federalist sees it. Perhaps there is a key video about those other 999 cases to watch.

Posted by: Doug B. | Dec 28, 2022 4:45:54 PM

"And you keep digging on Potter when saying 'no other evidence' matters other than the video you think conclusively proves Potter innocent. That opinion of yours is inconsistent with the rulings by the judge and the verdict of the jury after they considered the full evidentiary record."

Wow, an appeal to authority coupled with some lese-majeste idea regarding judges and juries. Interesting. We've made some progress here--we've gone from "a" video to "the" video. What is shocking to me--the video shows actually what happened, and all agree that it shows that she mistook her gun for her taser--so how do we get from there to a conviction based on a "conscious" imposition of risk of death/SBI? Not only do you seem decidedly incurious, but you criticize me for looking at, you know, what actually happened and saying "huh?". Seems to me that one can easily impugn the additional evidence as irrelevant or prejudicial (or cynically designed to obscure the real core issue in the case). But no--that judge and jury did its job so shut up federalist. And let's dive deeper--you trotted out that truck driver as making a mistake and being in a cage--but the evidence shows pretty clearly that Aguilera-Mederos made more than a little mistake--if his brakes were bad, why was he going 40 mph over the speed limit? Etc. etc. The cases aren't remotely the same. That you came up with such an inapposite comparison makes me think you are engaging in sophistry. Given that everyone agrees that this was a mistake--what is the logical refutation of my argument that the element of consciously creating risk of death or SBI is met? At first we had your throwaway argument that she shouldn't have pulled the taser--but that seems to have gone by the wayside given my pushback. Now all we have is "you can't impugn the jury/judge" and gee, you didn't pore over all the evidence (even though you cannot seem to figure out that it doesn't bear on her consciousness at the time she fired the gun)---hmmm, where were you when we always heard about that dreaded "all-white jury?"

You also gloss over the highly-charged environment under which Potter was prosecuted.

Justice in Russia is politicized, as it is in China--yet, it seems very likely that they generally-speaking get the right guy. Potter/Vechirko likely aren't emblematic of the problems that are in the justice system--these were high profile cases, and the political establishment, in Vechirko's case, had to cover its butt and so the minor adverse actions were just too bad for him, and in Potter's case, wanted a specific outcome, even those the words in the statute books don't fit what happened.

The Vechirko prosecution does leave an indelible stain on the DFL. Governor Walz is a disgusting human being. And the idea that some innocent guy can be beaten and robbed, and he is the one arrested, is just shocking. Shocking. Then they used a trick to hold him for much longer than others (and this was particularly egregious since by then it was well-known that MNDOT didn't close the highways). And the Minnesota Supreme Court allows the prosecutor to keep his license. Wow.

And let's get back to Officer Nero--the guy, the least senior on the scene, shows up after Freddie Gray was arrested, and Marilyn Mosby wants to put him in a cage for life. Fortunately, she couldn't. Sickening.

Posted by: federalist | Dec 29, 2022 10:32:13 AM

This is getting tiresome, federalist, because of your sophistry and failure to face up to your own laughable PC claims based on NOT reviewing all the evidence tht led to a BRD ruling by judg and jury. You are not just asking "huh" about the rulings of the judge and jurors here -- you are claiming they are obviously wrong without reviewing the evidence they reviewed and now are further impugning the judge for having a show trial full of 33 witnesses that were, in your words, "irrelevant or prejudicial."

I am not incurious -- in fact, I am quite curious to hear your accounting of WHY you think this supposedly simple and obvious case was decided so wrongly. I surmise you think "bad politics" --- not the good politics you endorse in the work of other prosecutors --- explains the failings of the elected prosecutors. But how about the judge and jury? Do you think it's racism? Sexism? Hatred for cops? Societal pressures to convict cops who kill? (Notably, you see to suggest the system screwed up the other way in the Tamir Rice case. What made that go so wrong -- racism? Hatred for teens? Societal pressures not to convict cops who kill?)

In other words, I am eager to hear what exactly you mean by a "highly-charged environment." And why do you suggest such an environment produces injustice in only 1 out of 1000 cases in our system? Do you not think a "highly-charged environment" explains --- or at least could be reasonably alleged to account for --- how Aguilera-Mederos was charged and convicted and sentenced? For how persons now accused of voter fraud (not just in Florida but elsehwere) get charged and processed? How the Jan 6 rioters have been charged and prosecuted and sentenced? How crack offenders have been charged and prosecuted and sentenced for decades? The stash-house sting cases? And on and on and on and on.

You are welcome to impugn the Potter judge and jury all you want, federalist, but I would be eager to hear you explain just what you think went wrong there that is distinct in kind from the concerns many others --- on both the left and right --- have in so many other cases.

Posted by: Doug B. | Dec 29, 2022 12:00:17 PM

It must be getting tiresome to repeat the word impugn--lol.

The Tamir Rice case bothers me a lot. The case obviously happened years ago, and my recollection of the actual facts is a bit hazy. From what I can remember, the cops acted as if the kid had a gun when the reports were that he may have had a gun. I cannot help but think that at an absolute minimum, the police work sucked, to put it mildly. As I recall, the prosecutor declined to prosecute. Extremely bothersome in that case is that the police handcuffed Tamir Rice's sister, although somewhat besides the point. That, I think, warranted prosecution, given the lack of probable cause or reasonable suspicion. One would think that police officers would have had a lot of empathy

As for the Kim Potter trial, my problem is very simple--where is the evidence that she consciously created a risk of death or SBI--a question you simply cannot answer. It's not lurking in the additional evidence because the prosecutor would not be agreeing that the shooting was a mistake and that she did not intend to pull her gun and pull the trigger. And why all the use of force experts--putting aside the rebuttal of the argument that shooting the criminal was ok--what difference does the "righteousness" of the tase make? And then there's the evidence that she should have known it was a gun--talk about Rule 403--how is that probative--it doesn't bear on the consciousness of the risk. And so what else is there--unless she admitted she knew it was a gun, but then the charge would be murder I see upthread that you took the bait on that point. And once again, we have the video of what happened--and even the judge said that she intended to draw her taser rather than her gun. That should end the matter. How can one consciously create a risk of death or SBI by pulling and using a taser? That's not a laughable question, nor is my claim that there was no PC here. That you say it is, in the face of what I have posited, is what is laughable. Your incantation of the judge and the jury is ever so quaint and allows you to avoid grappling with the interplay between the statutory language and the conduct. Your charge of sophistry is nonsense.

The Potter trial was conducted against the backdrop of racial tension and the very real possibilty or riots/violence. Aguilera-Medero killed four people by going 40 mph over speed limit when he knew his brakes were faulty/failing.

As for the Florida voting---the murderer voted illegally, and she's coming up with "some one told me I could register." Mitigating--probably, but certainly there is an ample amount of probable cause to charge. Voter fraud is serious, and voting by ineligible felons is serious--it's thumbing their noses at society. I expect prosecutors to enforce those rules.

I don't like the stash-house sting cases (at least how the biased press that is talking about them is presenting the facts), but it's hard to argue that they aren't guilty. (I don't see you sharing any concern about the government's behavior in the Whitmer case, however). Your bias shows again with the J6 stuff--many of those charged weren't rioting under any reasonable interpretation of that word. I'd look to how the people who rioted in Portland were treated. I'd look to how Clinesmith was treated. I'd look to how the rioters in DC were treated when Donald Trump was inaugurated. I'd look to the Brooklyn cases.

Aguilera-Medero was a trial penalty case, pure and simple.

Posted by: federalist | Dec 29, 2022 1:22:38 PM

Happy to, at some point, redo the Donald is more moral than Obama at some point . . . .

Posted by: federalist | Dec 29, 2022 3:07:19 PM

Ali Musa Daqduq--'nuff said.

Posted by: federalist | Dec 29, 2022 3:52:24 PM

And Doug, I don't think you want to get into this at all . . . .

Posted by: federalist | Dec 29, 2022 3:52:58 PM

Trying to get this, federalist: becuase of "racial tension," you think prosecutors, judge and jurors were blinded to the obvious evidence in the video --- or do you claim they all willfully railroaded Potter when it was obvious to all of them she was innocent? (I assume you also fault defense attorneys for not succeeding on a motion to dismiss AND for not bringing an immediate appeal and keeping out Potter in the meantime since this is all so obvious from the video.)

What is laughable is that you have so readily concluded that the the defense attorneys were so inept, the judge and jury so unable to follow the law and the obvious evidence WITHOUT actually reviewing all the evidence. (And, to be more precise, I called laughable that you attack a prosecutor who secured a conviction here BRD and, to my knowledge, that conviction has not even been appealed. Can you answer why this matter has not been appealed on a matter that should be so easy based on your claims?)

Meanwhile, I mentioned the J6 cases as an example of defendants being charged in a "highly-charged environment." I would be eager to hear if you think all those convictions are also invalid. I also would love to hear you make the case for Donald Trump's morality after he clearly lost the 2020 election. Or have you seen "the video" which conclusively shows he really won. I know seeing the right video is all you need to make a conclusive judgment, so do tell.

Posted by: Doug B | Dec 29, 2022 5:49:43 PM

I don't know Doug--maybe you can show how mistaking a gun for a taser (that's what the judge said happened) gets to a conscious creation of a risk of bodily harm.

Law enforcement's involvement in the election, i.e., suppressing the Hunter Biden story made the election unfair. In my view, that allowed Trump to fight it . . . . .

Posted by: federalist | Dec 29, 2022 6:01:43 PM

There's also the nefarious ham-stringing of the president with the BS Russia hoax/

Posted by: federalist | Dec 29, 2022 6:03:05 PM

The charges against Potter look more absurd after this:


I know you'll never be able to connect the mistake to consciously creating risk of death/SBI--that's while you'll continue your incantations until the cows come home. Let's take an alternate universe--let's say Rittenhouse had been convicted--you good with that?

Posted by: federalist | Dec 29, 2022 6:43:47 PM

So you want to prattle off DJT’s “greatest hits” and debate a guilty verdict that did not happen, federalist? More rank partisanship, but if you want to rattle off your account of Trump's morality while persistenly lying about the outcome of an election he knew he lost, feel free. For your sake, I hope you have better ways to use your time. But if you want to yet again showcase your partisanship, have at it.

(P.S.: the Rittenhouse acquittal highlights juries can render defensible verdicts without bias even "against the backdrop of racial tension and the very real possibilty or riots/violence." So you undermine your attack on the Potter jury with your latest "alternative universe" reference. Same goes, for that matter, with your repreated references to the Nero acquittal.)

If you want to keep churning on the Potter case, I hope you might finally turn to the issue of an appeal that I keep raising. The Powerline piece you cited urges appellate reversals, and I have seen other commentary claiming appeals on the lines you suggest should prevail. And yet, I see no reports of any appeal by Potter in the works -- though briefing thereon could and should raise (and/or seek to rebut) points you are keenly pressing. Can you provide any account of whether there is an appeal and/or its status?

Posted by: Doug B. | Dec 29, 2022 7:28:29 PM

Also, I had a few extra minutes to review accounts of the prosecutors' contentions in the Potter trial. As reported by the AP:

"In her opening statement, prosecutor Erin Eldridge told the jury that after Potter shot Wright, she didn’t try to render aid and didn’t immediately call in the shooting. She said this meant that officers approaching his crashed vehicle “didn’t know what they were dealing with” and waited for almost 10 minutes before they “dragged Daunte Wright’s dead body out of the car."


Again, I have not reviewed the actual trial evidence on this front, so maybe the actual evidence does not bolster this prosecutorial contention to your satisfaction. But it seems part of the cross of Potter took aim on this issue: (Q: "You stopped doing your job completely. You didn’t communicate what happened over the radio, right?" A: "No.".... Q: "You didn’t run down the street and try to save Daunte Wright’s life, did you?" A: "No." https://lawandcrime.com/live-trials/live-trials-current/kim-potter/ex-cop-kimberly-potter-downplays-severity-of-daunte-wright-arrest-warrant-during-testimony-in-criminal-trial/)

If the jury found that Potter made a conscious decision not to seek to aid or to call in after she knew she had (accidently) shot a man in the chest, that seems to provide a reasonable and legally sustainable basis for a jury to conclude that Potter "consciously [took] chances of causing death or great bodily harm to another."

Posted by: Doug B | Dec 30, 2022 1:24:14 AM

So you're saying that Rittenhouse should have been prosecuted? Wow. Pretty clear case of self-defense and justified use of deadly force. And the prosecution of Nero was just bullshit. I guess you think innocent people should just be put through the wringer.

As for Potter, There were other cops on the scene (once again, watch the video) . . . . she was obviously distraught. Pretty thin gruel . . . .

Posted by: federalist | Dec 30, 2022 10:26:04 AM

Doug, she may not have the $ to appeal. She'll be out soon.

Posted by: federalist | Dec 30, 2022 11:01:00 AM

That there were other cops on the scene is entitely irrelevant to whether Potter's conscious decision not to aid or to call in after shooting Wright could statisfy the mens rea of "consciously tak[ing] chances" of death/GBH. Face it, federalist: once I had just a few minutes to review just a bit of the trial arguments/evidence, I readily found a legal basis for the charges and the rulings by judge and jury. And you fault others for jumping to conclusions. To repeat another word: "laughable."

Also laughable is your ridiculous characterization of my statements that the Rittenhouse and Nero jury verdicts undermine your attacks of the Potter jury. Again, like many who have one-sided views of certain criminal proceedings, you can invent characterizations that are only accurate in your mind and are immune to reality. But while you cling to partisan views, I will keep trying to understand your claims and, when I have time, review the facts to see if your claims have merit. Your claim that the Potter charges were without a PC foundation after judge and jury found they supported a conviction BRD still seems hard to swallow AND still seems unsupported in the history of the law.

Of course, Potter could and should be vindicated on appeal if PC issues are so simple (and you or others could have offered to represent her pro bono). If she could not secure/afford an appellate lawyer, she has a right to have one appointed. Though she will be out soon, these convictions carry long-term consequences. I am often troubled by both formal and functional limits on appeals/review for criminal defendants. Are you? Do you hope Potter pursues federal habeas relief (perhaps on IAC grounds)? Do you think she should be allowed to if she did not appeal directly?

Posted by: Doug B | Dec 30, 2022 11:34:02 AM

Except for the fact there's no causation . . . . like I said, pretty thin gruel. One would have thought that the judge would have cited this, but she did not. (And while we are at it--did Potter have a legal duty to assist--probably not.)

Posted by: federalist | Dec 30, 2022 3:06:21 PM

I have cited a viable theory of the case based on just a quick Google review of a few public press pieces; further review of the actual trial evidence could provide still more support fot the jury's unanimous verdict. (Also, not only does the common-law doctrine of “creating the peril” support a duty here, but I believe Minnesota also provides an express statutory duty in Minnesota Section 609.662 "SHOOTING VICTIM; DUTY TO RENDER AID." ).

You are the one eager to jump to a conclusion and to claim that review of evidence presented at trial matters not. I am eager to give you credit for enouraging me to look more closely at the Vechirko and Potter cases. But, in those cases and all others, I will always seek to give open-minded consideration to all the issues before jumping to conclusions.

Posted by: Doug B. | Dec 30, 2022 3:59:32 PM

Hardly viable. You have a causation issue, and the duty issue is really really murky (once again look at the video). It seems though that you've gotten to a point where it wasn't the shooting itself, but the aftermath, which supports the conviction (which is problematic for obvious reasons). You still have a duty problem given that there were other cops around etc. etc. Obviously, you can't have a "totality of the circumstances" argument which imports whatever culpability there was for not rendering aid into the alleged actus reus of mistakenly shooting the criminal. There's also the causation issue.

As for Rittenhouse, given that self-defense is a constitutional right, the prosecution seems very very problematic from a liberty standpoint. It's fascinating to me that you've argued that draconian sentences for serious crimes, but that you don't extent that to those who defended themselves and are facing LWOP.

Posted by: federalist | Jan 3, 2023 9:32:41 AM

Forgot to add: Happy New Year!

Posted by: federalist | Jan 3, 2023 9:32:57 AM

Kinda sad that we don't have more people commenting . . . .

Posted by: federalist | Jan 3, 2023 9:34:47 AM

Happy 2023 to you as well, federalist.

On Potter: These are classic jury/fact issues as to whether the sequence of events --- the stop and its particulars, her decision to tase and (accidental) grabbing of the gun and shoot, her subsequent behaviors that delayed the providing of needed aid --- proved up the required mens rea under the statute. The judge and jury heard evidence on these issues and the jurors concluded unanimously that the mens rea was proven BRD and the judge decided that determination had sufficient factual/legal support to enter a conviction. You disagree, but faulting prosecutors for deciding they had PC for charges that thereafter resulted in jury convictions has no precedent in the history of the law and reflect your policy views, not your careful review of the facts and law.

On Rittenhouse, can you provide details on how you see the Constitution's text (or SCOTUS holdings) establishing that "self-defense is a constitutional right" and explain its constitutional contours? In Ohio, caselaw states that a person cannot prevail on a self-defense claim if "at fault in creating the situation" (and, until quite recently, Ohio put the budern of proof for SD on the defense and SCOTUS upheld that choice back in 1986). Are state applications of SD "fault" --- and also, say, the duty to retreat, which varies among the states --- fundamentally matters of federal constitutional law?

Apart from being interested in your accounting of the Constitution here, I am struck by your assertion that "the prosecution seems very very problematic from a liberty standpoint." Do you think people should be at "liberty" to kill other people under any circumstances in which they claim to feel threatened? Would you assert the prosecution of the Menendez brothers "seems very very problematic from a liberty standpoint"? The law has historically always required that use of deadly force in self defense be "reasonable" and subject to a number of other limitations. The prosecutors apparently thought that Rittenhouse's use of deadly force in self defense went past those limits, but a jury concluded they failed to prove as much BRD. Seem to me like our system at soundly work with the jury serving as a proper and critial check on the power of the state. The Rittenhouse result is one of many reasons I am a big fan of jury trial rights and eager to have jury verdicts widely respected, including at sentencing, as a check on state power.

I am concerned about state exercise of power over individuals in all settings, when persons are accused of serious crimes (as Rittenhouse was) and also even when persons are convicted of serious crimes. The exercise of state power, particularly though the operation of the crminal justice system and especially when it involves threats of "draconian sentences," should be of concern in all settings to all persons who care about liberty.

Posted by: Doug B | Jan 3, 2023 10:33:31 AM

Kinda suprising, federalsit, that you think other people might have time or interest to relitgate these old issues at such length. I find your commentary (and those by Bill and Tarls) a lot more interesting and thoughtful than what comes from (right-leaning or left-leaning) legal echo chambers, so I am inclined to engage in extended backand-forth. (Though, as you may note, I have no interest in mixing it up with Tarls and others about abortion issues not related to criminal laws.)

I suspect most of my readers barely have time to click through from Twitter to see original and more timely posts, let alone read a few comments. Of course, I would eagerly read your blog an urge others to do so if you want to try to drive conversation on these topics. (I read Bill's work at his new Substack, though I do not see much dynamic engagement with the criminal law commentary over there.)

Posted by: Doug B | Jan 3, 2023 11:08:24 AM

We'll have to agree to disagree about mens rea being imported from the alleged failure to aid . . . . without that, the mistake cannot support the "consciously" requirement---and the failure to aid seems like some thin thin gruel and reeks of being a makeweight.

As for Rittenhouse, he had a right to be where he was and he had a right to be armed. As the video shows, he was attacked, and he did retreat . . . . and the prosecutors tried to put him in a cage for the rest of his life.

I don't know the precise contours of the self-defense right and prosecution, but it would be unconstitutional to repeal a self-defense right. "Detached reflection cannot be demanded in the presence of an uplifted knife." People have the right to bring up their own children--do they not have the right to defend themselves?

Posted by: federalist | Jan 3, 2023 12:14:42 PM

Do you considering yourself a textualist, federalist? I think it is hard to find this right in the text of the Constitution, and perhaps you mean to be making an argument against textualist approach to the US Constitutions. I believe nearly half of state constitutions include an express self defense right, but I do not think Wisconsin's does. Wisconsin does have "defense" mentioned in its 2d A analogue, though that only protects the keeping and bearing, not the using of arms or killing for "defense" which must have some limits.

Speaking of limits, I would think a state has to be able to (dramatically?) limit any "right" of self defense exercised by prisoners or asserted for use of violence against police (even those who might seem to be involved in an illegal arrest). I am not trying to troll, but I am hearing echoes of Justice Scalia's reminder than not all good policies are constitutionally protected. And I think this issue is starting to be discussed with --- but sometimes getting problematically conflated with --- the constitutional right to keep and bear arms. Most to the point, and perhaps to come full circle, if we think the importance of the Second Amendment is in service to SD, then it is really troubling that the Kim Potters of the world, who may face more long-term threats than many others, are denied by federal law the right to even possess a gun.

Posted by: Doug B | Jan 3, 2023 12:42:16 PM

Yes I do. But there are also certain natural law rights that don't need to be written down--directing the upbringing of one's children and self-defense are two on that short list. The right to keep and bear arms likely implies it also. And yes, there are limits.

As for the right to resist police, it would be interesting to hear from the statists of the world when the right to resist police excessive force engages . . . .

Posted by: federalist | Jan 3, 2023 12:51:56 PM

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