Prosecutorial misconduct

This is to comment on the article, "Head in the sand over prosecutorial misconduct", by Erwin Chemerinsky, in The National Law Journal, April 25, 2011.

The reform needed is suggested by reviewing the history of how we got to this point.

The abusable power of public prosecutors became entrenched when they were made elected officials in the late 19th century, before which criminal prosecutions were largely done by private parties. At that time it was thought the voters would be as concerned for protecting the rights of the accused as they were to "hang 'em all and let God sort 'em out." Alas, the voters came to see the threat as something that only menaced "those" people, not people like them. It has only been recently when "people like us" are threatened by the same abuse that the issue is coming into public discussion.

The obvious solution to to stop electing prosecutors. Have them selected at random, by sortition, from a large pool of qualified candidates, case by case. There would be a budget, and there could be professional staffs, but the first chair would be filled by someone without a career path in the seat.

A companion reform would be open (an increased number of) grand juries to direct citizen complaints, with no undue presence or  influence by professionals, and with the grand jury appointing the prosecutor by handing him an indictment.

We also need to educate the public from whom juries are drawn to be skeptical about everything they hear in the courtroom, whether from the attorneys, the witnesses, or the judge, and to summarily acquit if they sense any of the legal arguments in the case have been withheld from them, except perhaps arguments on motions in limine that cannot be made without disclosing evidence properly excluded. However, there should never be any motion in limine granted to a prosecutor in a criminal case. Only to a defendant.

Finally, any individual needs to be able to bring a complaint about a public official to a grand jury, to decide whether the official was acting within his or her jurisdiction, and if not, and if the evidence is sufficient, to conduct a civil or criminal prosecution against the official, thus stripping him of his official immunity.

See Trial Jury Reform.


"Natural born" eligibility

"Natural born" means born on the soil of the nation, regardless of the citizenship of the parents, unless one of them is a foreign diplomat recognized by treaty as not being subject to the jurisdiction of the United States. That's what jus solis means. Location is the only thing that matters. That has been the case in Anglo-American law since before the U.S. was founded. It was not the 14th Amendment that made it so. That amendment only made all such persons state citizens if they are also residents (for an unspecified period of time). They were already U.S. citizens.

The mistake comes from reading Emmerich de Vattel, who was often cited by the Founders, but Vattel was Swiss. He was describing the legal doctrine of the European Continent, where the rule for citizenship was jus sanguinis, or that citizenship was based on the citizenship of one's parents. That was not the doctrine of Anglo-American law, for which the rule was jus solis, or that citizenship was based on the soil of the nation, the location of one's birth, and not on the citizenship of parents. It is discussed in Blackstone, and particularly in the footnotes of Tucker's edition of Blackstone (1803).

Persons naturalized according to these acts, are entitled to all the rights of natural born citizens, except, first, that they cannot be elected as representatives in congress until seven years, thereafter. Secondly, nor can they be elected senators of the United States, until nine years thereafter. Thirdly, they are forever incapable of being chosen to the office of president of the United States.
"Natural" in that context means "according to natural law", in other words, by the rules of the common law then established, which pretended to divine natural law in the ways court decisions were made.

It is a common mistake to think that "natural-born" is synonymous with "citizen at birth". One can also be naturalized at birth by statute. That was done for John McCain, retroactively by a statute passed after he was born on the soil of the Panama Canal Zone, which was a leasehold, and not U.S. soil. McCain was definitely not "natural-born", no matter what a Senate resolution might say.

So Obama is eligible only if we was born on U.S. soil, which could have been in the airspace above U.S. soil, or in U.S. coastal waters, or on the grounds of a U.S. embassy abroad (U.S. soil by treaty), or perhaps on a U.S. flag vessel at sea in international waters. Not if born in the air over international waters if it was not a U.S. flag aircraft, and not if in the airspace over a foreign country.

All this is actually spelled out with some clarity in U.S. code, which at least on this subject happens to get it mostly right, although it is ambiguous because it doesn't address "natural born" at all. Some people manage to mis-read 8 USC 1401, but that section is not defining "natural born". It is defining "citizen at birth", and it is part of Chapter 12, Subchapter III, Part I, titled Nationality at Birth and Collective Naturalization. Only the first two clauses are about natural birth. The rest are about collective naturalization.

A birth certificate is evidence of location and date of birth, and is usually dispositive. However, a "certificate of live birth", which does not show location and date, is not. That is all we seem to have for Obama, and what has been offered is clearly a forgery. More dispositive would be witnesses to the birth. Unless the mother was alone when it happened, there should be some witness, even if no longer alive, who made a record of the event.

The burden of proof of citizenship for purposes of removing an individual from U.S. soil is on the government. However, the burden of proof for purposes of voting or holding office is on the would-be voter or officeholder. Even if the candidate was actually born on U.S. soil, if he can't prove that he should not be deemed eligible. It doesn't have to be proof beyond a reasonable doubt. Likely few of us could offer that. But there does need to be a preponderance of evidence.

There have been some efforts to exclude Obama from the ballot until he proves his eligibility,  but it is useless to try to exclude Obama from the ballot, because it is not Obama that voters vote for. They vote for electors pledged to vote for him. The ballot might show the person to whom they are pledged, but that pledge has no legal status. The same people could be said to be pledged to vote for Mickey Mouse, when everyone knows that Mickey Mouse is a pseudonym for Obama. Or to some real person. Nothing prevents them from voting for anyone else when the time comes.

The only points at which an ineligible candidate might be blocked is (1) the counting of the elector's votes; (2) the certification of the elector's votes by Congress; and (3) inauguration. None of those points are subject to the orders of a court. For each of them, enforcement depends on the people involved voluntarily following the Constitution. Nothing can make them if they choose not to do so.


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