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April 9, 2023
Texas Gov pledges to swiftly pardon man convicted of murder of BLM marcher day after jury conviction
As reported in this local article from Texas, "[l]ess than 24 hours after a jury in Austin found Daniel Perry guilty of shooting to death a protester, Gov. Greg Abbott announced on social media Saturday that he would pardon the convicted killer as soon as a request 'hits my desk'." Here is more about a case and promise of clemency that seems likely to garner considerable attention:
The unprecedented effort, which Abbott announced to his 1 million followers on Twitter, came as Abbott faced growing calls from national conservative figures such as Fox News host Tucker Carlson and Kyle Rittenhouse, who was acquitted in the shooting deaths of two Wisconsin protesters in 2020, to act to urgently undo the conviction.
“Texas has one of the strongest ‘Stand your ground’ laws of self-defense that cannot be nullified by a jury or progressive district attorney,” Abbott said in a statement. “I will work as swiftly as Texas law allows regarding the pardon of Sgt. Perry.” Abbott’s office did not return calls from the American-Statesman on Saturday seeking additional comment. The two-week trial, which included dozens of witnesses and much forensic evidence, was not broadcast. Abbott attended no portion of the trial.
Perry, an Army sergeant, was working as an Uber driver in Austin on the night of July 25, 2020, when he ran a red light at the intersection of Fourth Street and Congress Avenue and drove into a Black Lives Matter march before stopping. Garrett Foster, carrying an AK-47 rifle, was among a group of protesters who approached his car. Perry told police that Foster threatened him by raising the barrel of his rifle at him, so he shot him five times with a .357 revolver through the window of his car before driving away.
Perry’s defense team argued that he acted in self-defense, but prosecutors contended that Perry instigated what happened. They highlighted a series of social media posts and Facebook messages in which Perry made statements that they said indicated his state of mind, such as he might “kill a few people on my way to work. They are rioting outside my apartment complex.” A friend responded, “Can you legally do so?” Perry replied, “If they attack me or try to pull me out of my car then yes.”
A jury Friday unanimously convicted Perry. State District Judge Clifford Brown is set to sentence him to prison in the coming days. He faces up to life in prison.
David Wahlberg, a former Travis County criminal court judge, said he cannot think of another example in the state’s history when a governor sought a pardon before a verdict was formally appealed. “I think it’s outrageously presumptuous for someone to make a judgment about the verdict of 12 unanimous jurors without actually hearing the evidence in person,” Wahlberg said.
Doug O’Connell, who represents Perry, told the Statesman in a statement Saturday: “Right now we are completely focused on preparing for Daniel’s sentencing hearing. I visited Daniel in jail this morning. As you might expect he is devastated. He spoke to me about his fears that he will never get to hug his mother again. He’s also crushed that his conviction will end his Army service. He loves being a soldier.”...
The jury deliberated 17 hours over two days before reaching the verdict Friday afternoon after an eight-day trial with dozens of witnesses. Perry didn't testify during the trial.... After the judge read the verdict to the packed courtroom Friday, Perry, 35, buried his head into one of his lawyer's chests and erupted into loud sobs. The jury also found Perry not guilty of an aggravated assault with a deadly weapon in connection to driving in front of another protester....
Fox's Carlson decried the conviction in a two-minute segment on his show, referring to the Austin protesters as a “mob of rioters” who surrounded Perry’s car and began pounding on it. He said Perry fired when Foster raised his rifle. “This is a legal atrocity,” Carlson said. “There is no right of self-defense in Texas.”...
Jennifer Laurin, a University of Texas law professor, addressed the portion of Abbott’s statement on Texas’ self-defense laws. She said that a jury is instructed to reject the defense when the person asserting it provoked the response, as prosecutors say Perry did when he drove his car into a crowd of protesters. “Painting the conviction as rogue nullification is uniformed or deceptive,” Laurin tweeted.
Abbott lacks authority under state law to issue a pardon without first getting a recommendation from the Board of Pardons and Paroles, whose members he appoints. In his statement, Abbott said he already asked the board to review the verdict to determine if Perry should be granted a pardon. “I have made that request and instructed the board to expedite its review,” Abbott said. “I look forward to approving the board’s pardon recommendation as soon as it hits my desk.”...
Defense lawyer Rick Cofer, who was not involved in the trial, expressed astonishment over Abbott’s announcement. “It’s what happens in Uganda or El Salvador,” said Cofer, a former prosecutor. “Total abrogation of the rule of law. And what’s even worse is that Abbott knows better. He was a smart Texas Supreme Court Justice. He knows this is legally wrong. Profoundly wrong. Pure politics.”
Without speaking to the specifics of this case in any way, it seems worth noting that many acts of clemency (and even decisions not to grant or consider clemency) can often generally be described as "pure politics." Put differently, what makes this case noteworthy is not that a governor's clemency decision-making may be influenced greatly by politics, rather it is here what the Texas Governor is saying and pledging to do in the name of politics.
April 9, 2023 at 09:14 AM | Permalink
Comments
"Drove his car into protesters"--oh yeah, because those a-holes had the right to take over a street.
Posted by: federalist | Apr 10, 2023 10:18:24 AM
"...Abbott faced growing calls from national conservative figures such as Fox News host Tucker Carlson and Kyle Rittenhouse"
Kyle Rittenhouse, an emotionally fragile 18 yr. old is now a 'national conservative figure' who only needs to raise his voice and the governor of Texas 'snaps to', pardoning a murderer. God help us.
Posted by: SG | Apr 10, 2023 9:42:08 PM
A thentofore (is that a word) law-abiding citizen is in a place he has every f'in right to be and is confronted by an armed mob that attacks his car, and he fires at a dude packing an AK (whom he says pointed it at him), and we are so that he is not telling the truth that we will send him to prison for the rest of his life. That's just appalling, and you choose to pick on another victim of violence and evil prosecutors?
Posted by: federalist | Apr 11, 2023 9:19:06 AM
federalist: Didn't the jury have to unanimously decided, beyond a reasonable doubt, that the defendant was not telling the truth about self defense in order to convict the defendant here? I did not follow this case or the trial at all, but is there any reason to believe the defendant did not have a full and fair opportunity to to raise his self defense claim at trial? (I saw a report the defendant decided not to testify at trial, which is interesting to see.) Also, though I do not know Texas sentencing law well, my understanding is that the charge of conviction could allow State District Judge Clifford Brown to impose a sentence as low as five years (though I'd like a texas expert to confirm that).
Posted by: Doug B | Apr 11, 2023 10:13:59 AM
First, it is indisputable that the defendant had every right to be where he was, and it is indisputable that a mob attacked his car. It is also indisputable that the so-called victim was part of said mob.
Second, juries get stuff wrong, and it's not like the eyewitnesses were neutral bystanders.
What I am pointing out is that if the "victim" pointed the AK at him, the shooting was justified, and it is far from clear that he didn't. And someone is subject to spending the rest of his life for defending his life. That's a problem. When you mix in the fact that the mob were wrongdoers, the mere fact that he was arrested feels like an injustice. Self-defense is an absolute right, and only in tyrannies does self-defense get punished.
Sending someone to prison based on the testimony of members of a lawless mob that was attacking his car is just too much too ask.
The prosecution of Rittenhouse is an appalling abuse, and it's a stain on the Wisconsin legal system.
Posted by: federalist | Apr 11, 2023 11:44:15 AM
In the Rittenhouse case, federalist, the jury did not concluded BRD that the killing was unjustified; here the jury apparently did conclude that the killing was unjustified. Is it your contention that juries are not the proper arbiters of self defense? It seems there was a dispute over whether the person killed did anything more than carry a gun while part of a protest. Is your view of self defense, federalist, that anyone armed at any protest can be lawfully killed by anyone else who claims they feel threatened by the protest?
Posted by: Doug B | Apr 11, 2023 11:59:26 AM
First of all, there's video evidence in the Rittenhouse case. There is no reasonable claim that he wasn't defending himself. In fact, with respect to the first guy, Rittenhouse attempted to retreat and was set upon by the criminal. So in that case, there is simply no probable cause for a murder charge. Without probable cause, there's nothing for a jury. Do you think that people in a free society should be subject to prison for defending their lives? See, I can ask a loaded question too.
The question in the Perry case is whether the jury's decision is justified as a matter of law. On the basis of self-interested testimony by members of a mob, we have self-defense disproven BRD? Yeah, I didn't think so either.
Posted by: federalist | Apr 11, 2023 12:23:04 PM
And the same goes for Zimmerman--where was the probable cause? The evidence indicated that he was retreating and that he was set upon by Trayvon Martin. Once, of course, Martin is on top of him, Martin could get access to the gun, which means Zimmerman had every reason to fear for his life. Think about this---would a cop ever be prosecuted in such a situation? Remember also, Martin was smashing the back of Zimmerman's head into pavement. And yet Zimmerman was prosecuted. Please provide articulable probable cause in that situation.
Posted by: federalist | Apr 11, 2023 12:26:05 PM
federalist, you are essentially saying that if we assume every possible fact in favor of the defendant in these cases, then their actions were lawful. For starters, entirely lawful action can provide a basis for "probable cause," especially when classic defenses are involved --- eg, a police officer (and later a prosecutor) may not be sure if a defendant's fear of death or SBI to justify SD was both objectively reasonable and subjectively honest at the time of the killing. And I do thnk people who kill and who are not obviously objectively reasonable and subjectively honest regarding the need for deadly force should have their claims of self defense scrutinized. Loaded questions are not deadly, but loaded guns are, and so I want people who use loaded guns to kill in questionable situations to have to account for why a killing was justified.
Moreover, in all of these cases there were various disputes over various facts. And, in the US legal system, factual disputes over criminal liability are generally to be resolved by juries. Juries returned acquittals in Zimmerman and Rittenhouse and a conviction in Perry. You clearly do not respect the verdict in the Perry case, though if the facts and law are so clear, the appeals process ought generally to be trusted to correct the outcome, no?
Posted by: Doug B | Apr 11, 2023 1:54:54 PM
You don't address what I am saying. With respect to Perry, it isn't clear what happened. And we're taking the word of people who were committing crimes against him. You can try to make this whole thing as anti-septic as you like, but the bottom line is that Perry was confronted with a criminal situation for which he was entirely blameless (unless you think that law-abiding people need to abandon the streets to lawless rioters). The dude had an AK. And you're gonna subject the guy to prison for that? Yeah, maybe he just wasted the guy---but do you believe that BRD? Yes, juries resolve questions of fact, but there has to be an absence of reasonable doubt to start with, and this case seems chock full of that.
As for Rittenhouse, where is the probable cause? He was armed and shot someone? Nope--that doesn't get it done. The undisputed video evidence shows that he didn't provoke anything, wasn't the aggressor and was chased. There's no evidence from which a reasonable factfinder can negate self-defense beyond reasonable doubt, which means that the case should not have been prosecuted. In Zimmerman, the available evidence shows the a-hole retreating back to his car whereupon he was violently attacked. There is nothing to suggest that he wasn't in reasonable fear of death/SBI. Hence the case shouldn't have been prosecuted.
"so I want people who use loaded guns to kill in questionable situations to have to account for why a killing was justified." In a free society, self-defense is an unquestioned right. Why do I have to answer to you? If you have probable cause, maybe we have a trial. But Rittenhouse was subjected to government punishment because he acted in self-defense. That's a problem. The Wisconsin prosecutors were trying to put a guy in jail for the rest of his life because he, after trying to get away, shot a guy who attacked him even though the attacker knew that Rittenhouse was armed. Rittenhouse had the right to shoot him to defend himself, and the government has no right to put him through the wringer.
With respect to Zimmerman--let's say that I am walking down the street and packing. Some dude attacks me, starts bashing my head into the pavement. Obviously, I have no idea what he's going to do if he gets a hold of my gun, and so I shoot him. Obviously, no one thinks I should be prosecuted, but Zimmerman isn't any different from a legal standpoint.
Posted by: federalist | Apr 11, 2023 2:17:37 PM
"It seems there was a dispute over whether the person killed did anything more than carry a gun while part of a protest." Nice way to euphemize what the "victim" was doing.
Posted by: federalist | Apr 11, 2023 2:50:38 PM
I am not taking anyone's word, federalist, I am noting the jurors did not believe this was a good case of self defense (and Sgt. Perry decided not to testify to make his case to them). I have not seen any of the evidence, the jurors did, and they had to reach a unanimous outcome. Plenty of people doubted the jury results in Rittenhouse and Zimmerman, but I am generally inclined to defer to jury judgments when there are facts in dispute (especially when I have not reviewed the disputed facts clsoely).
And even if one agrees that "self-defense is an unquestioned right," it is quite obviously not an unlimited right -- eg, one who kills in self defense must always be objectively reasonable/subjectively honest regarding the need for deadly force. In Ohio, a defendant also has to be "free of fault" and other jurisdictions still have certain retreat duties. Juries are often going to be the ones who will be charged with deciding if SD limits were transgressed when a defendant claims self defense.
Posted by: Doug B. | Apr 11, 2023 2:51:07 PM
Once again, you fail to address the point.
With respect to Rittenhouse, there was videotape evidence of what happened. It's basically like a law-school hypo. There's not a scintilla of evidence that Rittenhouse "provoked" anyone, from a legal standpoint anyway. He was attacked and chased. If the chaser had gotten a hold of him, the chaser would have had access to Rittenhouse's gun (and by the way, someone who chases someone with a gun almost certainly will want to take the gun from the person, as he doesn't want to be shot). There is simply no probable cause here. Rittenhouse retreated for goodness sake. You keep incanting about the jury, but a jury shouldn't get a case where there's no PC. And with Zimmerman--if there were a constitutionally sound law about being an asshat, then he's guilty, but in legal terms, he was violently assaulted as he was heading to his car. The fear for his life was obvious. Thus, there wasn't a basis to try him.
What you miss is that self-defense, once at issue, must be disproven BRD. So yes, "[j]uries are often going to be the ones who will be charged with deciding if SD limits were transgressed when a defendant claims self defense." But if the evidence cannot disprove SD BRD, then it doesn't go to a jury. And in both Rittenhouse and Zimmerman, where is the evidence that these guys didn't have a reasonable fear of death/SBI? There is none.
As for Perry, the issue is more structural. It's, of course, a truism that if the dude with the AK pointed it at Perry, then even arresting Perry is a problem. The problem is that we don't have any real way of knowing---we just have a group of people who decided that they had the right to surround Perry's car and pound on his car and damage it--in other words, these animals thought they had the right to control public streets. Add to the mix is that, as part of the mob, you had a guy carrying an AK. That's a scary situation--think if you were in that situation in a car with your daughters--would you be scared? There isn't a cop in sight, and those animals could do whatever the heck they wanted. And Perry acted, and now he faces life. He didn't create the situation. That's a problem, and your antiseptic description is just oh so unrealistic. This is why, by the way. cops should stop these riots.
Posted by: federalist | Apr 11, 2023 4:06:29 PM
federalist, you keep failing to understand that a killer's subjective belief is relevant to a claim of SD, as are any applicable rules about being initially at fault. As a result, there can be legal/factual uncertainty (and thus PC to charge) even if and when the killing facts "objectively" look to you like they present an obvious and reasonable basis for SD. I do not know all the facts/arguments presented in all these cases, but I do know that many facts you assert were subject to reasonable dispute (especially before a charge/trial took place), and judges obviously found key facts to be in dispute or the cases would have been bounced as a matter of law. So you are attacking the judges in those cases, as well as both the judge and jurors in the Perry case. Fine, but you are showing your disrepect for the process used in our legal system to resolve cases with disputed fact. (And when you say an issue is "more structural," that sounds a whole lot like what the BLM crowd and others decry when claiming structural problems impact how the law gets applied so as not to reflect the facts and values they are eager to stress.)
Do you have a theory for why Perry did not testify in his defense? Seems like a big deal in his case, especially since as I keep stressing, his subjective beliefs are an essential part of any valid SD claim.
Posted by: Doug B | Apr 11, 2023 4:26:24 PM
ANY pardon in effect "disrespects" the judicial outcome. That's their nature. When a jurisdiction's constitution provides unreviewable pardon power, it creates and accepts the risk of what some will (and some won't) see any given exercise of it as a very misguided. Clinton did it, Obama did it, and Trump did it.
The way to curb this is to change the plenary nature of the pardon power so that, say, the legislature could nullify a pardon by a two-thirds vote. But until that or something similar happens, it's just so much pounding sand to complain about something anyone familiar with the nature of pardons, and their sometimes dicey history, knew could happen. When you give the power to open the prison door to a politically chosen official (like a governor), it's too obvious to require discussion that you're inviting in political considerations.
Don't like it? Fine. Either adopt my proposed reform or elect someone different next time.
Posted by: Bill Otis | Apr 11, 2023 5:11:35 PM
I am not failing to understand that---if there's no evidence of the subjective belief, then that evidence is not allowed to be resolved against the defendant. In Zimmerman's case, there just was no evidence as to his subjective belief (other than the fact that pretty much anyone would be scared out of their mind if a stranger were banging their head against pavement.) So where was the PC? Same with Rittenhouse--any person would be in fear for his life in such a situation.
And as for "disrespecting"--what? First of all, did you watch any portion of the Rittenhouse trial? Like when the scum prosecutor said that the law requires people to take a beating? What? What reasonable dispute was there over Zimmerman or Rittenhouse? The evidence in the Zimmerman case (undisputed by the way) was that Zimmerman was following Martin. He then broke off the following and went to his car. Then Martin attacked him and overpowered him. He then shot Martin who said "You got me." and then he died. Where is the PC? If I am walking down the street with a concealed firearm, and someone attacks me, gets me on the ground and starts smashing my head into the pavement, and I shoot him once and kill him, how in the world should I be prosecuted for murder? Are you really suggesting that I should face the possibility of LWOP for that? Well, guess what, that hypo, and the Zimmmerman reality are one and the same from a legal sense. Once Zimmerman broke off the follow, he was in the position of anyone else. Pointing out this obvious stuff isn't disrespecting the judge.
As for Perry, you can deflect all you want, but there are serious problems with allowing members of a criminal mob to be the evidence that negates self-defense. And of course, you don't go there with the hypo of you and your children being in a car surrounded by an armed mob.
Posted by: federalist | Apr 11, 2023 5:24:25 PM
I believe in the Perry case, federalist, there were text/social media messages suggesting the defendant was eager to go "kill a few people on my way to work." That is certainly enough to get to a jury if other evidence suggested he was looking to pick a fight, and that likely made his failure to testify all that much more damning in the eyes of the jury. Perceptions of picking a fight was also part of the story in Zimmerman, a case which got widely noticed only because a 911 dispatcher told Zimmermen not to follow Martin as he was apparently running away. (As I recall, there was debate over whether there should be an initial aggrssor jury instruction in that case, and I am no expert on Florida SD law.)
When you call a prosecutor "scum," federalist, you are showing disreprect for the process and the people invovled. Like the BLM crowd and others, you might think our justice systems merit such disrespect. But that is what your attacks on the charges and the attack on the verdict signal. But, it seems neither Bill or Master Tarls is inclined to criticize your attacks on the system and its prosecutors, so perhaps the disrespect you demonstrate for our justice system is more widely shared than I might otherwise think. (And maybe some prosecutors just agree with your crazy EP theory to think they have to go after Sgt Perry and Rittenhouse so as not to risk the magical federalist EP argument that would mean there could be constitutional questions if they prosecute any other intentional killers.)
Posted by: Doug B. | Apr 11, 2023 6:15:38 PM
“…and so I want people who use loaded guns to kill in questionable situations to have to account for why a killing was justified.“
I find this, coming from a law school professor, to be chilling.
Posted by: TarlsQtr | Apr 11, 2023 10:13:35 PM
Doug B.,
Federalist’s comments seem to be directed at individuals, not “disrespect” to “the system.” Calling the Rittenhouse DA “scum,” is about him, not all DAs or the entire “system.” He also happens to be correct.
Posted by: TarlsQtr | Apr 11, 2023 10:26:56 PM
One DA who was clearly scum was Mike Nifong, who prosecuted entirely innocent white Duke lacrosse players to gain advantage in the Democratic primary in a largely black jurisdiction (Durham, NC). They were falsely accused of rape by a black stripper. Not only were they innocent of the rape; there WAS no rape. The whole thing was made up. Nifong wound up serving a total of one day in jail. Had it been up to me, it would have been a few years.
Posted by: Bill Otis | Apr 12, 2023 8:53:30 AM
First of all, Doug, those text messages are hardly relevant to the question of whether he was where he was legally allowed to be (which he was). And there you go with your anti-septic BS. People have places to be and things to do--when mobs take over streets, it evokes emotional reactions, especially when the cops are ok with people's cars getting surrounded etc.
And good grief, with respect to Zimmerman, he was walking away. He therefore retained his privilege of self-defense. This is basic law.
"Had it been up to me, it would have been a few years." If it were up to me, it would have been LWOP.
As for my crazy EP theory, hmmmm, we've agreed that prosecutorial discretion is subject to EP . . . .
Posted by: federalist | Apr 12, 2023 9:06:31 AM
So, Master Tarls, you do not think the Menendez brothers should have been asked to account for shooting their parents in claimed self defense? Or that the Minnesota nightclub shooter had to account for a mass shooting that he claimed was in self defense? https://www.startribune.com/in-murder-trial-downtown-minneapolis-nightclub-shooter-testifies-he-acted-in-self-defense/600218935/
Classic self defense, as students learn in 1L Criminal Law, is traditionally viewed as a "justification" defense. The limits on self defense set forth in statutes and in the common law --- and there are many limits, especially when deadly force is used --- typically concern whether or not the defendant can reaonably claim that a killing is "justified." (In Texas law, for example, the subchapter on SD is in Chapter 9 Justification, see 9.31/9.32: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.9.htm. And, as I have been explaining, key to any SD claim is what is in the mind of the killer --- as Texas law puts it, "the actor's belief" has to be of a certain nature for that actor to be "justified in using deadly force.")
In other words, Master Tarls, this law school professor is just explaining the basics of the law of self defense. Sorry that you find basic legal doctrine "chilling." Can you explain why you find it "chilling" that the law expects a killer to provide some account of his belief when claiming to be "justified in using deadly force" in questionable situations?
As for whether and when prosecutors (or others) are "scum," Master Tarls, do you share the view that Zimmerman never should have been charged and/or that the judges in the Rittenhouse and Zimmerman case should have dismissed the charges as a matter of law? Do you share the view that the jury got it wrong in the Perry case? How do we figure which of these folks are "scum" for how they did their jobs in these cases (multiple prosecutors from the Kenosha County District Attorney's Office were involved in the prosecution, are they all "scum" or only certain prosecutors in that office)?
Perhaps your claimed principle for calling prosecutors "scum" is just "I dislike how they acted as a prosecutor."
Posted by: Doug B | Apr 12, 2023 9:08:48 AM
federalist, you give away the same when you now turn to "emotional reactions," as everyone has all sort of emotional reaction to all sorts of events. But the law places limits on when those "emotional reactions" can justify killing a person. Clearly you want to interpret disputed facts in favor of the killer in the Perry case, but you were not on the jury that is tinasked in our system with sorting through there facts. You disrespect the judgment they made in light of the disputed facts --- just own that reality --- and our systems put another check on state power through clemency. It will be interesting to watch that process play out in this case.
What makes you EP theory crazy, as I keep noting and you keep dodging, is that you claim a failure to prosecute in one case could somehow ground an EP claim to block or disrupt a prosecution in totally unrelated cases. Not only have you provided no basis in law for such a claim, you seemingly fail to appreciate that such a crazy theory would provide an extra justification for prosecuting the Rittenhouses and Zimmermans because prosecutors would always have to worry that any alleged "bias" toward not bringing charges could be used by all sorts of unreleated others to contest homicide or other charges. It's not just that your EP claim is crazy, federalist, but that you have not even thought it through even a little bit in light of your other claimed commitments (which just highlights how your partisanship distorts your ability to think clearly and carefully).
Posted by: Doug B | Apr 12, 2023 9:26:29 AM
Doug,
What I’m saying is that any defendant can stay silent, not “account” for anything, and the jury is not to hold a negative view of that choice. The state has to prove intent.
The Rittenhouse case was brought forth as a political stunt, nothing more. It was on tape. Even this layman could see it was self-defense and I think the kid is an idiot.
Posted by: TarlsQtr | Apr 12, 2023 11:32:48 AM
"Clearly you want to interpret disputed facts in favor of the killer in the Perry case, but you were not on the jury that is tinasked in our system with sorting through there facts. You disrespect the judgment they made in light of the disputed facts --- just own that reality"
So disagreeing with a jury verdict is somehow "disrespecting the jury"---where were you when the "all-white jury" moniker was used to discredit those jury's verdicts? The problem with Perry's case is that he was in a place where he had the legal right to be, and he was set upon by a mob which contained armed people. The self-defense justification was negated by witnesses whose motivations were obvious. So we have a guy who had a criminal situation thrust on him--let me ask yet again--how would you feel with your daughters in the car with a mob (some of whom are armed) surrounding you? Pretty f'in scared, I'd assume. Saying well the DA gets to do what he did and the jury gets to find what it found doesn't really address the possibility that a very serious injustice happened here. You seem to be ok. That's jarring.
As for Rittenhouse and Zimmerman, you cannot articulate any factual/legal basis upon which a trier of fact could find that SD was negated BRD--saying that a jury gets to say so doesn't answer the issue because in neither of those cases was there any evidence--Zimmerman, in legal terms, was like the guy in my hypo. Rittenhouse retreated, for Pete's sake. So the upshot is that in the Rittenhouse case, the prosecutors tried to put a demonstrably innocent man in prison for the rest of his life, simply because they didn't like what he did. They are scum, and it is a stain on the justice system that these animals still have law licenses. If it were up to me, they'd spend the rest of their thug lives in prison. Much as I despise Zimmerman, there ain't no PC there either, which means that the prosecution should not have happened.
As for EP--I've been thinking about this--but it's hard to get the time to bang it out. But let's put aside Hunter Biden for one second--let's take Andrew McCabe. That SOB lied to the FBI about a leak that he did and tried to pin on others. Of course, the DOJ protected its own and didn't prosecute. And this is not an isolated incident (although this one is pretty bad, notwithstanding the cover outfits like NPR provided McCabe): https://www.nationalreview.com/2020/02/why-wasnt-andrew-mccabe-charged/ As shown by Senator Grassley, the DOJ often went easy on its own people for all sorts of criminal behavior--stuff that would get the rest of us in hot water. So we agree that EP principles apply--so is it remotely ok from a constitutional standpoint that the DOJ goes easy on its own?
Posted by: federalist | Apr 12, 2023 1:12:23 PM
fedralist: I think folks do show disrespect for a jury verdict if/when folks complain that an "all-white jury" reached the wrong result. When have I ever called that respectful? On Perry, I am sure I would be scared, and I am sure I would try to drive away. But it seems Perry did not have others in the car and he did not try to drive away, he killed someone. If you were on the jury, you may have voted to acquit for that killing. I was not on the jury and I did not hear all the evidence, so I do not know how I would have voted if I was on the jury. But I respect the work they did unless and until I have considered all the evidence with an open mind and decided they clearly got it wrong.
Do you think the prosecutors are "scum" in Zimmerman? How about the judges in these cases who let the cases go to the jury? Do you think the all prosecutions by the prosecutors in Kenosha County District Attorney's Office who you call "scum" should be undone? If you do not think they should be laywers, would you support efforts to have any and all post (and pre) Kenosha County convictions and sentences vacated?
On the EP front, you keep obtusely missing the point --- even if we agree that is problematic "from a constitutional standpoint that the DOJ goes easy on its own," does this create a constitutional remedy for otherwise lawful and entirely distinct prosecutions? (I surmise you think it is a constitutional problem that the Kenosha County DAs prosecuted Rittenhouse. Does this mean they cannot prosecute anyone else? Ever?) I know you are not dumb, federalist, but you sure say a bunch of dumb things about law because of your partisan passions.
Posted by: Doug B | Apr 12, 2023 1:37:26 PM
My point is not that you said "all-white jury" but that it has been tossed around by so many on the defense side that I am wondering why you are so vehement that I am disrespecting juries, when I don't recall you ever getting in high dudgeon over that one. I am not. And so what that he didn't try to drive away--how could he when the car was surrounded? And if he had hit one of the rioters, the DA would have charged him with assault. And in the Perry case, I am criticizing the jury verdict, yes, but my bigger point is the holistic picture. Are you comfortable negating self-defense based on the testimony of the very people attacking the guy's car. "He killed someone"--yep. A guy carrying an AK and being part of a mob attacking his car.
As for EP, you're absolutely right that the remedy is hard for lots of reasons, obvious and not. But the remedies are hard in the racial bias situation as well. That's what has me struggling a bit, but I think it very very clear that DOJ cannot base prosecution decisions on whether the Dem party's political prospects will be harmed or not, nor do I think that the criminal's ideology should really come into play--you can't give Antifa a pass but hammer some grandma who walked around the Capitol. Read Andy McCarthy's piece--it's compelling. And he's no Trump lover either.
Posted by: federalist | Apr 12, 2023 2:05:09 PM
https://sentencing.typepad.com/sentencing_law_and_policy/2007/12/why-is-huckabee.html
You sure didn't criticize Huckabee for his impugning of the "all-white" jury here . . . . and you sure didn't say he was "disrespecting" the jury. Ha ha ha ha. Gotcha.
Posted by: federalist | Apr 12, 2023 2:10:12 PM
I am not "vehement" about anything, federalist, but I find it comical that you are so eager to dismiss all the arguments against Perry without appreciating the possibility that jurors who heard all the evidence might reasonably take a different view (especially since he did not testify and you fave Justice Scalia liked to note "significance of silence"). Generally speaking, I am "comfortable" in our SD laws and our jury system being used to sort out claims of self defense, especially since the prosecution will have to prove BRD to a unanimous jury that the killing was unjustified. Juries surely get it wrong sometimes, but I assume they got it right until I see clear evidence that they got it wrong.
As for who provides testimony, the vast majority of drug dealing convictions are based on testimony from other drug dealer being given a sweet deal, and I still generally trust juries to sort out those realities, too. In Perry, I have not seen all the evidence (have you? has Gov Abbott?), but I generally trust juries unless/until I have a good reason not to based on seeing evidence that they got it wrong (or evidence of corruption or ineffective lawyering, etc).
Race is obviously very different from politics in all constitutional EP settings, federalist. Are you saying a local police force could not refuse to hire people who used to be in Antifa? Your concern about "bad politics" impacting prosecutorial decisions, which is reasonable in concept, runs into at least five big problems you have not yet engaged: (1) what is "bad politics" in this context (eg, is prosecuting (or not prosecuting) white-collar guys or tax cheats or weed businesses or suspect cops "bad politics"), (2) the "criminal's ideology" (including any politics) can often account for why some crimes seems especially serious or dangerous (or perhaps not worth prosecuting), (3) how can we effecitvely assess when the "absence" of govenrment action is for a good or bad reason, (4) won't everyone be eager to assert in every case that prosecutors has a bad reason to fail to act elsewhere, and (5) why should we ever let unrelated individuals litigate these matters in unrelated cases just because they can throw shade on the prosecutors for a lack of past action?
Posted by: Doug B | Apr 12, 2023 2:45:17 PM
Are you losing the ability to read, federalist? Why would I "criticize Huckabee for his impugning of the 'all-white' jury here," when Huckabee makes no mention of an "all-white" jury nor shows any disrespect to anyone? The post you link is focused on how "Huckabee's approach to clemency was heavily influenced by his religious beliefs," and one who pardons or grants clemency based on notions of redemption is not, simply through a grant of clemency years after a conviction, showing disrespect to a jury that may have convicted.
I do see in the article quited, federalist, that a former Huckabeee aide makes a curious reference to an "all-white jury" in a context that is itself leaves unclear whether and why Gov Huckabee may have granted a pardon or a commutation to a particular life sentence. I did not comment on that reference, I suspect, because it was entirely unclear what this aide was referencing, and the point of my post was to highlight the virtues of clemency as a way to show redemption.
It is telling you lack the time to explain your crazy EP claims, but have time to dive 15 years into te archives to fail to find a "gotcha." Really quite sad, but I suppose not that surprising. And if you are trying to get me to lose respect for your intellect with commments like these, federalist, you are doing a pretty good job.
Posted by: Doug B | Apr 12, 2023 3:01:27 PM
Ha ha:
(1) You accuse me of disrespecting the jury, but you were silent about actual disrespect of a jury. Gotcha there.
(2) With respect to drugs, understand re: cooperating witnesses, but, and here's the but, last I checked, there is a rule that a conviction cannot be based solely on accomplice testimony. Government has to have more. With respect to the negation of self-defense, really all we have in the Perry case is the witnesses saying that the dude wasn't pointing a gun. The other stuff (prior statements etc.) doesn't speak to that--that's a problem since all agree that if the dude had been pointing the AK, then Perry walks. And once again, this guy was on a public street minding his own business until set upon by a mob.
(3) The hiring decision is governed by different rules--government employees cannot undercut the mission so to speak with their associations. As for race versus all other classifications, political association is as protected as race. As for ideology of criminal, I wasn't entirely clear--if someone's ideology is a motivator, i.e., we're going to treat a Klansman differently, but the J6 people are being f'd in comparison to other violent actors. And there is always going to be a nod to the fact that no one is perfect--but it is beyond clear that the DOJ is being used for base partisan motives, and that's a no-no. And it cannot be that our constitution has nothing to say about that.
Posted by: federalist | Apr 12, 2023 3:21:40 PM
federalist:
(1) you remain a legend in your own mind for finding a 15-year-old stray reference by an aide discussing vaguely a case that I do not comment upon because it no part of the story of the post at all. This is so weak, I am worries you are getting a bit unhinged in your silly and strange effort that deny that you do not have respect for the jury verdict in the Perry case when you keep saying it was wrong.
(2) You are again making stuff up as you grasp at straws, since we are not talking about accomplice testimony. Also, the Perry trial had lots of evidence presented over two weeks, I believe. Yet again, unless I was on the jury hearing all the evidence, I cannot have a fully informed judgment. But certainly others are entitled to jump to conclusions as they see fit.
(3) Do your homework and think a bit more, federalist, since long ago I cited to you a congressional hearing about the BUSH DOJ based in claim that DOJ was then "being used for base partisan motives." That is an accusation easy to make for every administration, turning it into EP doctrine for courts to enforce is the challenge and you still fail to explain how regular complaints about prosecutorial partisanship should lead to a constitutional remedy IN COMPLETELY UNRELATED CASES.
This seems to be going nowhere, so I am inclined to stop because I am not going to shake you of your partisan passions and the distortions they produce in your silly contentions.
Posted by: Doug B | Apr 12, 2023 3:48:26 PM
Ha ha. You accuse me of disrespecting the jury's verdict in the Perry case, and when I ask you where you were when people were yapping about all-white juries and you say that it would be disrespectful, then I point out your silence on one, and you dismiss that--ha ha. Now you try to move to the word "respect" rather than disrespect (the two are not necessarily antonyms). Your use of the word respect now is akin to pickup b-ball games and the rule of "respect the call." Neat rhetorical trick.
You were the one who brought up accomplice testimony, not I. I am pointing out that, realistically, Perry's case turns on whether the dude pointed a gun at Perry or not. And realistically that boils down to whether you believe members of a f'in mob that was attacking him. If you're good with someone being subject to prison based on that thin reed, well, more power to you.
As for EP, you brought it up. Yeah, the McCabe non-prosecution stinks to heaven. And yes, accusations are easy to make, but the evidence of the vileness of the DOJ is piling up.
Posted by: federalist | Apr 12, 2023 4:01:18 PM
When "people are yapping" about "all-white juries" reaching the wrong verdict, I will say they are disrepecting the work of juries. That is not what some stray reference in a quoteed article was about, and so you "got got" with your silly "gotcha," federalist. Here you are saying, repeatedly, that the Perry jury got the verdict wrong. That, as I see it, is disrepecting the work of the jury, especially since you have not reviewed all the evidence. How would you describe your disaffinity for the verdict reached by the Perry verdict? If you think there is a more fitting description than disrepect, I am all ears.
I brought up accomplice testimony to highlight that our legal system convicts many people on the basis of testimony much more compromised than the two weeks of testimony (40 wintesses) in the Perry case. And, again, that's what juries are for, to sort through claims of bias and uncertainty and self-interest as they judge the credibility of witnesses. You may have a bias against certain witnesses, but the role of the jury is to try to evaluate testimony without bias.
As for EP, this goes back to one of your partisan rants against Hunter where you said drug defendants have an EP claim as a result. But I will stop teasing you about its failing to have any substance, since you keep failing to provide any. I was just hoping, for the sake of all defense attorneys, you might find a way to concoct something that would not get laughed out of court.
Posted by: Doug B | Apr 12, 2023 4:13:15 PM
Disagreement with/questioning the verdict. I am not being disrespectful of it.
"I brought up accomplice testimony to highlight that our legal system convicts many people on the basis of testimony much more compromised than the the two weeks of testimony in the Perry case. And, again, that's what juries are for, to sort through claims of bias and uncertainty and self-interest as they judge the credibility of witnesses. You may have a bias against these witnesses, but the role of the jury is to try to evaluate testimony without bias."
Doug, the witnesses were part of a mob attacking the dude's car. Where are the charges there, btw? And pointing out the fact that they were part of the mob is pointing out the facts. Same guys that attacked you are the same guys undercutting your SD claim . . . . yeah, fair. And with accomplice testimony, as you know it is not sufficient by itself to convict.
The EP argument is easy. The remedy is hard. Don't worry. I'll have something--just thinking. You really ought to look at the lenience shown to DOJ employees from Senator Grassley's report--disgusting.
Posted by: federalist | Apr 12, 2023 4:35:00 PM
Should I say, federalist, you are respectful of the jury's work, but disagree with the verdict? Would you call the verdict sound, even though you think the jurors should have weighed the testimony of 40 witnesses differently? You seem to be doing more than questioning the verdict, but if you say you respect the juror's work, I will readily credit your statement.
And I have long agreed that DOJ has long played all sorts of favorites, and so too do all state and local justice departments. Prosecutors have so much unchecked and unregulated discretion, it is almost impossible for them not to play favorites to some extent (and certainly impossible for them not to be accused of playing favorites).
Posted by: Doug B | Apr 12, 2023 4:50:38 PM
You've abandoned the field on Rittenhouse/Zimmerman by the way. Those prosecutions were awful, and yes, I think the judges there merit serious criticism.
Yeah, prosecutors have discretion, but remember too the EPC looks at classifications. The DOJ cannot have unwritten rules that treat DOJ employees for non-job offenses better than the average person, and when the examples pile up, as they did with Grassley's investigation, then a defendant could say that the DOJ is classifying people as DOJ vs non-DOJ and with respect to crime X, Y and Z, there is no rational basis for the differential treatment.
I question the jury's work--I generally don't cast aspersions on jurors, other than those who open their mouths like the twit that yapped about McVay's accomplice. And the tot mom jury, those people suck. Other than that, I don't really worry about jurors.
Posted by: federalist | Apr 12, 2023 5:05:49 PM
While I have your attention--did you ever see this?
https://www.nytimes.com/2022/10/13/us/politics/florida-prison-cancer-release.html
Posted by: federalist | Apr 12, 2023 5:42:30 PM
I know you know how to search the blog, federalist, since you were referencing a 2007 post today. A quick search turns up this post about BOP failings discussed in the NYT article you cite: https://sentencing.typepad.com/sentencing_law_and_policy/2022/10/lots-of-coverage-of-ugly-case-bop-mistreatment-after-scathing-court-opinion.html
And I've not "abandoned" anything on Rittenhouse/Zimmerman, it's just there you seem to agree with the jury outcomes and the Perry case is "live." If you want to keep talking about these other cases, what do you make of the fact that the chief prosecutor in Zimmerman, Angela Corey, was getting heat for how she prosecuted Marissa Alexander in a case with a reasonable SD claim: https://www.theguardian.com/world/2012/may/17/stand-your-ground-marissa-alexander. Do you think Corey should have moved for Alexander's release from the get-go? Do you think Corey (and the judge in the case) may have reasonably worried about the need to keep pursuing the charges against Zimmerman to avoid being accused of violating the EP claise by discriminating against women? Do you think the judges in the Alexander case also merit criticism?
Posted by: Doug B | Apr 12, 2023 8:39:14 PM
There was no PC in the Zimmerman case--and you, after all these posts, won't identify it.
Posted by: federalist | Apr 13, 2023 7:26:20 AM
You are such a tiresome ninny, federalist, as you keep asserting that your one-sided view of the facts are the only possible view. If Zimmerman killed in anger rather than fear or if he was the initial aggressor then his SD claim would fail. You may not want to consider either of these possibilies in the PC analysis, but they are part of the law and the factual narrative prosecutors asserted when they brought charges (and Zimmerman's 911 call alone could put these facts in reasonable dispute). The judge at initial appearance concluded he found probable cause, and a different judge rejected motions to dismiss.
So we have numerous legal actors involved in the case representing and concluding the facts provided PC for the charges, and federalist asserting otherwise. And federalist is some internet partisan who believes prisoners have a right to attack guards in self-defense if they think they are being wrongfully incarcerated.
Posted by: Doug B | Apr 13, 2023 8:39:43 AM
Under your skin. Professor, you're just wrong "if Zimmerman killed in anger"---anyone would be angry getting their head bashed into the pavement.
And no, the 911 call does not even remotely supply PC in the Zimmerman case--once again, the only evidence is this: Zimmerman broke off following Martin. So even if you think that following someone from a decent distance is "provoking them" such that you lose the right to use deadly force even when confronted with someone bashing your head into the pavement, a stretch, the only evidence is that Zimmerman had ceased following Martin and was headed back to his car. Martin then attacked him, overpowered him and then got shot. That's it. In other words, Zimmerman was no different from a hypothetical citizen walking down street with concealed firearm. And no one thinks that in that scenario there is PC to charge the hypothetical citizen.
There is no reasonable question that Martin put Zimmerman in reasonable of death or serious bodily injury, and there is no reasonable basis to conclude that at the time of the shooting, Zimmerman had not lost the "privilege" of self-defense. You can bleat on about "subjective fear"--but that's where burden of proof kicks in.
As for Rittenhouse, an armed man tried to retreat, the attack was pressed, and those animal prosecutors wanted to put him in a cage forever. No PC there, and yes, there ought to be professional consequences.
Posted by: federalist | Apr 13, 2023 12:52:26 PM
Marissa Alexander--yeah I recall that one, but vaguely.
Posted by: federalist | Apr 13, 2023 12:56:41 PM
And as for my "attack guards in self-defense"--please identify how a person who has served his sentence has lost the privilege of self-defense. Please identify how that prisoner has lost his first amendment rights?
Hint: the answer is some weird species of necessity. But that's not an easy answer--last I checked, rights aren't so easily waved away--that's why they are called rights.
Posted by: federalist | Apr 13, 2023 1:05:16 PM
You are not under my skin, federalist, but your foolish eagerness to keep presenting your biased view of the facts and the law in old cases is tiresome. Your biased view of the facts and the law are not the only view, and multiple Florida legal actors found PC based on the facts and the law. So, again, we have numerous legal actors involved in the case representing and concluding the facts provided PC for the charges, and federalist asserting otherwise. And federalist, of course, is notable for his history of biased partisan perspectives and suspect legal suppositions.
Posted by: Doug B | Apr 13, 2023 2:38:59 PM
Florida legal actors found PC--ah, the appeal to authority. Heck, reasonable suspicion (lower than PC) has to be articulable, and "they said so" just doesn't get it done.
And let's assume you're right for a second--do prosecutors get to force someone like the hypothetical citizen I described go through a trial for his life? Seems really problematic? And there's video of Rittenhouse--should a retreating armed man who is pursued have to roll the dice on LWOP? Sounds pretty tyrannical.
Posted by: federalist | Apr 13, 2023 3:56:24 PM
Not an appeal to authority, but statement of reality. Again, your biased view of the facts and the law are not the only view. And, jury trials are not a "roll of the dice," they are how the American criminal justice system resolves factual disputes over guilt. When it is 100% clear that person A killed person B, and viable allegations are made by the prosecutor that the killing was based in anger rather than fear, we have jury questions.
You tip your hand here, federalist, showing you are really advocating to change the law/policy of SD because you want the law to provide that a trial should not happen unless/until a prosecution can show beyond doubt that the killer was in the wrong. (Of course, if that was the law, then a jury should never get a SD instruction.) But that's not the law for whether the case goes to trial when SD is presented because we look to juries to resolve of disputed facts of SD such as whether the defendant killed in anger or fear.
Face it, federalist, your argument is fundamentally based on what you want the law and the facts to be, not what they are. But legal actors must apply the law as it is, not the law as federalist wishes it to be.
Posted by: Doug B | Apr 13, 2023 4:41:42 PM
Doug --
"Face it, federalist, your argument is fundamentally based on what you want the law and the facts to be, not what they are. But legal actors must apply the law as it is, not the law as federalist wishes it to be."
Advocates of jury nullification beg to differ. Also "progressive" prosecutors in states that authorize the death penalty who vow never to seek it no matter what the facts are.
Posted by: Bill Otis | Apr 13, 2023 5:06:15 PM
Doug, you are missing one crucial piece--the burden of proof. If there is no evidence from which a reasonable fact-finder can negate SD, then the case should not go to a jury (or if there is a lack of probable cause). The "let a jury sort it out" because we cannot know the true state of mind of the shooter may be how things are done, but it isn't lawful.
"The State must prove by evidence which satisfies you beyond a reasonable doubt that the defendant did not act lawfully in self-defense." That's from Wisconsin Jury Instruction 805. Where is the evidence that Rittenhouse did not act in self-defense and from which a jury could conclude BRD that he did not. Rittenhouse retreated. Attacker continued to come at him.
Posted by: federalist | Apr 13, 2023 5:20:16 PM
Not sure I understand, Bill. Advocates of jury nullification seem to want the jury to be told they can acquit even in the fact of clear evidence of guilt. They are saying that juries should be adjudicators of facts and law, largely in service to democratic values. I do not think that is what federalist is talking about, as he want to keep these disputed SD cases from juries.
"Progressive" prosecutors want to exercise their lawful discretion to not bring/dismiss certain charges, and I do not think you disagree that prosecutors have lawful broad discretion to decide not to bring charges. I do not think either federalist or I doubt that Angela Corey or other prosecutors could decide, in their discretion, to never bring charges if there is a viable SD claim (eg, the prosecutor in the Menendez case could have lawfully accepted the brothers' SD claims if she wanted to and the case would have lawfully ended without the charges going to the jury).
But at issue here is whether, when facts about a killer's motives are factually disputable in an SD context, is it unlawful for prosecutors to bring charges in order to have the jury factually resolve these SD issues. I think such charges are lawful in light of viable disputed facts over the legitimacy of the SD claim, but I am not sure what that has to do with jury nullification or "progressive" prosecutors.
Posted by: Doug B | Apr 13, 2023 5:20:47 PM
federalist: do you realize you are quoting a JURY instruction, not a charing instruction? That is proof these matters typically get to a jury to resolve disputed facts. One of the disputed facts in the Rittenhouse case was whether the defendant provoked the attack (I think based on pointing his gun --- there is a famous DC Circuit case, Peterson, in which display of a pistol was deemed sufficient provocation to undercut claim of self defense).
Posted by: Doug B | Apr 13, 2023 5:26:43 PM
Doug --
What you said was, "legal actors must apply the law as it is, not the law as [a particular individual] wishes it to be."
Jury nullification advocates believe the opposite. They believe that legal actors (the jurors) need not apply the law as it is (for example, laws criminalizing drug possession) and should render a verdict as they wish the law to be (drugs are not criminalized and therefore the defendant should be let go notwithstanding proof of guilt BRD).
As to "progressive" prosecutors: It's fine for a prosecutor to decide, in good faith, in an individual case, that that particular case ought not to be brought because of lack of resources or other, more pressing cases. That is long-accepted prosecutorial discretion. It is not fine -- and instead is rank usurpation of the legislature's function -- for the prosecutor to decide, based on his ideology or political beliefs, that ALL CASES of a particular type ought NEVER to be prosecuted, despite existing state law, because he thinks the legislature was ill-advised ever to pass that law. That judgment belongs solely to the legislative branch.
Example: Prosecutor Jones is a segregationist. The state has anti-discrimination laws that provide equal access to places of public accommodation. Prosecutor Jones doesn't like those laws and for that reason will not act against a lunch counter owner who refuses to serve blacks. It's silly to say that is "prosecutorial discretion." It's simply one prosecutor deciding that the legislature got the law wrong. But that is not a prosecutor's decision to make.
Posted by: Bill Otis | Apr 13, 2023 6:25:42 PM
Bill: federalist and I were of late talking about the "legal actors" of the prosecutors and judges involved in presenting cases with factual disputes to juries.
But if your focus is on jurors, you have jury nullification a bit wrong. The jury nullification crowd does not think jurors can always "render a verdict as they wish the law to be," because they do not advocate for juries to be allowed to convict when facts/law do not support conviction. Rather, drawing on democratic theory, the checking of state power and historic practices, they believe jurors should be allowed to acquit even when the facts do support conviction. And, I surmise, many jury nullification fans think "the law" fully supports jurors having this power given that jury acquittals are not appealable and directed verdics of guilt are not permissible. In that sense, "the law" upholds the notion that jurors have a unique power to refuse to convict even when facts would plainly support a conviction.
As for prosecutors, if a prosecutor in good faith considers a crime unconstitutional (such as sodomy and adultry laws still in place in many states) or if he decides in good faith that prosecuting a certain crime decreased public safety or produced constitutionally problematic disparities (such as some drug possesison crimes or as some research suggests: https://www.apainc.org/choosing-not-to-prosecute-low-level-crimes-may-reduce-future-crime-research-finds/), then I think a prosecutor may sometimes soundly decide not to enforce a certain offense. But in the vast majority of cases, Bill, I agree that prosecutors ought to be making charging decisions on a case-by-case basis, not en masse. (Of course, federalist and I have been discussing a few particular charging decisions --- which leads him to call certain prosecutors "scum" (and Tarls to agree) --- not any decliniation policies. I hope you keep in mind that it is not just defense attorneys who like to call prosecutors names when they dislike their use of state power.)
Posted by: Doug B | Apr 13, 2023 9:49:29 PM
Doug --
I have to be brief because I'm off for a Rhine River cruise tomorrow. Eight hours across the ocean I'll be gone for two weeks.
"The jury nullification crowd does not think jurors can always "render a verdict as they wish the law to be," because they do not advocate for juries to be allowed to convict when facts/law do not support conviction."
They might not, but their thinking obligates them to. Again, their basic thinking is that they can ignore law to "do the right thing." They could easily think that "doing the right thing" means convicting the longtime, menacing, thuggish, violent town bully even though the evidence in this particular case comes up just a bit short. They could believe that demanding proof BRD -- the law's requirement -- is too exacting in these particular circumstances, and that "true justice" demands a conviction. One you arrogate law to your own tastes, this is inescapably where you're headed.
"Many jury nullification fans think "the law" fully supports jurors having this power given that jury acquittals are not appealable and directed verdics of guilt are not permissible. In that sense, "the law" upholds the notion that jurors have a unique power to refuse to convict even when facts would plainly support a conviction."
You very nicely describe the difference between law, an invaluable combination of discipline and restraint civilization took centuries to develop, and mere power, which is doing what you want because (1) you want it and (2) you can get away with it. I prefer what civilization has given us. I strongly suspect you do, too.
"As for prosecutors, if a prosecutor in good faith considers a crime unconstitutional (such as sodomy and adultry laws still in place in many states) or if he decides in good faith that prosecuting a certain crime decreased public safety or produced constitutionally problematic disparities (such as some drug possesison crimes or as some research suggests: https://www.apainc.org/choosing-not-to-prosecute-low-level-crimes-may-reduce-future-crime-research-finds/), then I think a prosecutor may sometimes soundly decide not to enforce a certain offense."
I disagree. Those questions are for the legislature to address and resolve in deciding what the law is (or in not) to be. Once that decision gets made, it's the prosecutor's job to, as is written down somewhere, "take care that the Laws be faithfully executed." Anything else is pure usurpation. If separation of powers means anything, it means that the prosecutor does not get to be a super-legislature with the power effectively to repeal what the real legislature has done simply because he thinks it's wrong.
Posted by: Bill Otis | Apr 13, 2023 10:55:37 PM
Have a great cruise, Bill. Some too quick replies:
1. I suspect you think prosecutorial discretion soundly allows a prosecutor to sometimes not charge a case he knows to be clearly a crime, but that you do not think a prosecutor may soundly charge a case he knows clearly NOT to be a crime. I think the jury nullification crew views to power of the jury to likewise run only in one (state-power-limiting) direction, functioning just as the "declination/nullification" power of prosecutors.
2. I suspect you would describe prosecutorial discretion to decline as a power, not as a right, and yet I do not think you want prosecutional discretion eliminated or even seriously regulated by courts or other "law." As is often the case, Bill, you seem eager to safeguard the powers of a prosecutor while failing to see the potential wisdom of other actors in the system having comparable power.
3. You were a prosecutor and I have not been, but I can imagine settings in which "faithful" execution of laws would not mean always seriously considering executing in every case. But I ultimately share your sense that if a prosecutor views a law as always problematic or wrong, he should be advocating to the legislature to reform/repeal that law.
Posted by: Doug B | Apr 13, 2023 11:33:39 PM
Professor, you are a patient man.
Posted by: Fat Bastard | Apr 16, 2023 11:01:06 PM
And, I am with you, Professor. Nullification is a one way street: it permits a jury to acquit despite evidence proving the crime beyond a reasonable doubt.
If the jury convicts on legally or factually insufficient evidence or an improper jury instruction, that's not nullification, that should be correctable on appeal, even by deferential standards of review of jury verdicts. That it may stem from the same rationale as nullification, viz. a belief that the jury knows better than what the law, facts and jury instructions dictate, is irrelevant.
This was a factually close case any way you slice it. There appears to be ample evidence that Perry deliberately drove into the crowd after running a red light, and also evidence from which a jury could conclude that he premeditated and provoked the confrontation. The victim also suffered from Rittenhouse syndrome.
And I don't actually disagree much, if at all, with the Rittenhouse acquittal. Unless a legislature speaks to the contrary, open carry of a firearm in the vicinity of a protest or other "charged" event is only an item of evidence for a jury to consider on issues of provocation. Although I believe it prudentially to be a galactically stupid and improvident thing, it's just data for the jury's self-defense calculus: it should not dictate the failure or success of a self-defense justification.
Posted by: Fat Bastard | Apr 16, 2023 11:17:33 PM
"And I don't actually disagree much, if at all, with the Rittenhouse acquittal. Unless a legislature speaks to the contrary, open carry of a firearm in the vicinity of a protest or other "charged" event is only an item of evidence for a jury to consider on issues of provocation. Although I believe it prudentially to be a galactically stupid and improvident thing, it's just data for the jury's self-defense calculus: it should not dictate the failure or success of a self-defense justification."
Mere open carry per se is not provocation. Doug is full of it if he thinks Rittenhouse should have been charged because he legally carried a gun which could provoke others.
"There appears to be ample evidence that Perry deliberately drove into the crowd after running a red light, and also evidence from which a jury could conclude that he premeditated and provoked the confrontation."
Thats BS. He drove slowly to get through--like not any speed. He had a legal right to be on the street, and those thugs surrounded him. get that right.
Posted by: federalist | Apr 17, 2023 10:04:22 AM
I never said anything about what I think "should" happen in the Rittenhouse case, federalist, I have merely noted that multiple legal actors took a different view of the disputed facts and their application to the law than you do.
And on the Perry case, press accounts indicate that there was an array of disputed evidence presented to the jury about whether and how Perry drove into the crowd:
https://www.kxan.com/news/local/austin/murder-trial-expert-says-daniel-perry-slowed-down-as-he-made-turn-into-crowd-of-protesters/
https://www.austinchronicle.com/daily/news/2023-04-06/closing-arguments-made-in-the-killing-of-austin-black-lives-matter-protester/
Your tendency in these matters, federalist, is to assert or argue that disputed facts can only properly be resolved one way. But our system generally leaves it to the jury to resolve these kinds of factual disputes.
Posted by: Doug B | Apr 17, 2023 12:34:52 PM
Doug--it does not always leave it to the jury. There's a video in the Rittenhouse case--there is no way that there is any evidence whatsoever (notwithstanding your bleating about the possibility of provocation, which, if you knew about the evidence presented at trial (that the first so-called victim had previously threatened to kill Rittenhouse) that would support a guilty finding BRD. And without that evidence, nothing goes to a jury (or it shouldn't). That's the law. Or do you think that all SD cases can go to jury? Like, for example, the bodega guy?
Posted by: federalist | Apr 17, 2023 1:00:04 PM
This person was put in a cage and had his freedom curtailed for exercising his right to SD:
https://nypost.com/2022/07/19/alvin-bragg-to-drop-charges-against-bodega-worker-jose-alba/
But you would be cool with taking him to trial.
Posted by: federalist | Apr 17, 2023 1:40:42 PM
federalist: here is a snippet from a press account of the closings in Rittenhouse: "the prosecutor, showed jurors a drone video on Monday that he said showed evidence that Mr. Rittenhouse had provoked the confrontation by pointing his gun at a bystander and prompting Mr. Rosenbaum to give chase. 'When the defendant provokes the incident, he loses the right to self-defense,' he said. 'You cannot claim self-defense against a danger you create'.” I have not seen that drove video, but it sounds like "evidence"; prosecutors presented additional "evidence" at trial, and I believe there were denials of motions to dismiss by judges both before and after the jury presention.
Again, federalist, I have no interest in litigating the facts (which I have not reviewed in any detail). I am just pointing out, yet again, that you keep embracing and asserting a one-sided view of contested evidence and then claim there is no other way to look at contested evidence. I am not weighing in on the evidence, but I am noting that prosecutors and judges obviously took a different view of the contested evidence when they exercised discretion and/or reached rulings contrary to your view.
As for SD cases generally, various laws set forth various legal limits on self defense, and those limits provide prosecutors a number of ways that they can seek to undercut claims of reasonable use of deadly force, though they have discretion not to. (In one (in)famous Ohio case involving domestic abuse (Ohio v. Thomas), a prosecutor brought AGGAVATED MURDER charges when the defendant shot and killed her threatening boyfriend based on contested evidence that she shot him too many times. I believe there were four shots, as in the Rittenhouse case.)
If you take a job as a prosecutor or a judge, federalist, you can give legal effect to how you weigh disputed factual evidence. But your assertion of a one-sided view of contested evidence does not make that the only permissible way to resolve factual disputes. That said, I sincerely hope prosecutors generally do not waste time and money bringing charges when their investigation leads them to the conclusion that self defense was reasonably exercised (as in the bodega case).
Posted by: Doug B | Apr 17, 2023 1:59:56 PM
I've seen it--doesn't show squat, and it certainly wasn't legal provocation for that child molester Rosenbaum. Why didn't they prosecute him for pointing a weapon at someone. Plus, once the provocation is over, then self-defense rights re-engage, and even those who provoke, if they retreat, they get their SD rights back. See Zimmerman.
And you would have been cool with taking Mr. Alba to trial.
Here's a hypo--open carry guy walks thru neighborhood that is predominantly African-American--he's wearing a Klan get-up---does he lose his right to SD?
Posted by: federalist | Apr 18, 2023 10:52:16 AM
Yet again, federalist, that you have your one-sided view of the facts does not mean there is not another side. Every dispositive legal actor in these cases exercised discretion and/or reached rulings contrary to your one-sided view. 'nuff said.
As for your Klan hypo, when there are reasonable disputes of relevant facts, prosecutors are legally justified (but not required) to have those facts resolved by the jury. This is basic stuff that does not lend itself to simplistic hypos because SD limits related to provocation and reasonable/actual belief in the need for deadly force and the duty to retreat all often present reasonable disputes of relevant facts. In Ohio, caselaw provides that one element of self-defense is that "the defendant was not at fault in creating the violent situation." Exactly how your Klan guy acts with his gun when walking through the neighborhood before killing someone --- and especially if there was a factual dispute over, say, whether he was pointing his gun at someone --- likely would present a jury question as to whether "the defendant was not at fault in creating the violent situation."
SD cases often involve factual disputes, including witnesses who give divergent accounts of what transpired. If the matter does not involve factual disputes, as seemed to be the case with Mr. Alba, then there is no need for and ought not be a jury trial. If the natter does, prosecutors are legally justified (but not required) to have disputed facts resolved by a jury.
Posted by: Doug B | Apr 18, 2023 2:43:45 PM
You're right, Professor. The most frequent criticism of Rittenhouse is that he took a gun to a fight and that should, alone, have constituted provocation. I don't buy that. The rest of it, the jury put in the factual hopper and made its determination, as juries do, and I can live with that.
Similarly, whether Perry drove into the crowd at speed was testified to by multiple eyewitnesses and supported by videos. The defense had an expert recreate the scene and testify to the contrary. Grist for the factfinder mill, not BS as federalist declared. Regardless, a legitimate interpretation of someone who deliberately drives into a crowd of people at night instead of going around, is that driver is looking for trouble. It might technically be his right to drive through people, but it's not exactly smart, unless you have ulterior motives.
This trial was of interest, because UT is my alma mater and it was evidentiarily a pretty close case. So close that I can't fault a DA for not taking it before a grand jury and declaring it self-defense. The defense attorney is actually a friend.
Posted by: Fat Bastard | Apr 19, 2023 12:47:07 AM
"The most frequent criticism of Rittenhouse is that he took a gun to a fight and that should, alone, have constituted provocation." This is nonsense. He had a legal right to carry that rifle, and that, in and of itself, cannot constitute provocation. Doesn't matter anyway, since he was retreating.
Perry was doing what anyone else can do when confronted with a crowd---you try to inch your way through. Get that right.
Doug, you're changing the hypo. Ok, I'll change it--does someone lose right to self-defense thru provocation if he/she is wearing a Trump t-shirt in DC?
More to the point--self-defense is a right ("detached reflection cannot be required in the presence of an uplifted knife)---is it subject to post hoc invented disputes so as to subject an actor like Kyle Rittenhouse to LWOP if a jury doesn't like him? Mr. Alba is no different from Rittenhouse. Mr. Alba was treated horribly, and in my view, the prosecutor who charged him should be disbarred, and the police, who reviewed the tape and still arrested him should see long prison terms.
Posted by: federalist | Apr 19, 2023 9:39:06 AM
federalist: you assert "Perry was doing what anyone else can do when confronted with a crowd," but there was considerable trial testimony to the contrary. As is your MO, you just ignore all the contrary facts --- like a petulant child, you keep putting your fingers in your ears to refuse to countenance any facts other than the ones you have built in your mind as you jumped to your conclusions.
And, yet again, you besmirch our jury system by suggesting trials are about whether a jury "doesn't like" someone. Juries are tasked with resolving disputed issues of fact in our CJ system. They will sometimes get that wrong, but the Framers put the jury trial right in our Constitution twice because they expected juries were best positioned to protect other rights. That you have such little respect for juries and their role keeps coming through.
Posted by: Doug B | Apr 19, 2023 10:11:36 AM
I was a little careless with my words--Perry had a right to be where he was--a public street. The guy he shot--part of a mob taking over the streets--was carrying an AK-47, and said mob was attacking Perry's car. And because said mob said that the AK wasn't pointed at the car, Perry gets to be convicted. No juror or the prosecutors really know what happened regarding whether the AK was pointed at Perry--and by the way, even if he wanted to shoot someone, he still has SD right--since (assuming he's telling the truth) the AK was pointed at him. It's one thing to deem oneself satisfied BRD; quite another to say objectively, that all reasonable doubts have been resolved.
This was Austin. The jury may not have liked him. And your standard, if Jose Alba had been taken to trial and convicted, you'd be ok with that. And you seem to believe that peacefully exercising one's free speech right is legal provocation stripping said person of his SD rights. And you get it backwards on the jury trial right--the prosecutors have duties too, one of which is not to bring charges where they believe that there is reasonable doubt (whether or not they think they have the right guy). Juries are a failsafe.
And now you say I besmirch the jury--but when Huckabee's twit spokesman all but accused jurors of perpetrating an injustice based on race, you were silent.
Posted by: federalist | Apr 19, 2023 11:54:13 AM
federalist, when "Huckabee's twit spokesman" decides to comment on this blog with careless criticisms of juries, I will fault him for besmirching juries. Your bringing that up again is so laughable --- and it shows how hard you are trying to distract from (and not own) what you keep saying, namely that you do not respect our jury system to properly sort through factual disputes in some (all?) cases involving claims of self defense.
Meanwhile, I have never said or suggested "peacefully exercising one's free speech right is legal provocation stripping said person of his SD rights," and this is yet another example of your partisan passions clouding your ability to discuss carefully and clearly the issues raised in these cases. All I have said is that prosecutors and judges have identified facts in dispute in these SD cases, which is not surprising because our laws put limits on the use of deadly force in self defense that can readily be the basis for factual disputes. When there are these factual disputes, our system trusts juries to sort out completing claims.
You dislike how the US system of criminal justice functions in these SD cases, federalist. Fine, but it serves as yet another example of similarities bewteen your beliefs and the BLM crowd. You seem to worry that juries (and prosecutors) may "not have liked" the defendants that you like and so will not soundly resolve factual disputes to reach a just result --- which seems quite similar to some complaints of the BLM crowd contending that police and prosecutors and juries are not going to like the people the BLM crowd likes and so do not act justly. You folks have very similar feelings of disaffinity for the structures of our criminal justice systems in some cases.
Posted by: Doug B | Apr 19, 2023 12:21:33 PM
And federalist, if you think prosecutors have a (legal? moral? constitutional?) duty not to bring charges unless they are convinced of guilt BRD, do you also think they have a duty not to seek sentence enhancements unless they are convinced of guilt BRD? Bill is away for a while, but I know he views prosecutorial duty much differently. And if the system means BRD to be the legal duty/standard for charging, why isn't that the standard for getting an indictment dismissed?
Posted by: Doug B | Apr 19, 2023 12:27:00 PM
