Having been asked for a quote of a prominent legal figure on prosecutorial corruption, especially the kind that results in wrongful convictions, it is difficult to find something pithy.
There is nothing new about prosecutorial corruption. It is as old as prosecutors. We can see it in the prosecution of John Lilburne, in the prosecution of Penn and Mead, and the subsequent prosecution of the jury foreman, Edward Bushell, for acquitting them. Those are the classic cases. Everyone knew the prosecutions were corrupt, but you won't find compact quotes to that, partly because the prosecutions failed.
Corrupt prosecutions were a major issue in the British colonies, which led to many of the complaints in the Declaration of Independence.
It was also an issue in prosecutions under the 1798 Alien and Sedition Acts, such as that of John Fries. But although unconstitutional, they were not called "corrupt" at the time.
Prosecutorial corruption is part of the larger problems of judicial and legal corruption. From devotion to the ideals of justice in the Early Republic, there has been a steady and sometimes rapid decline in legal ethics in the United States, until now the entire profession has become corrupt in different ways and to varying degrees. It is difficult today for an honest lawyer to practice conscientiously and not be disbarred. Requiring lawyers to be members of the Bar is another way they are controlled for corrupt purposes.
It is important to understand that the modern institution of the "public prosecutor" is relatively recent. Before about the 1890s most cases were prosecuted by private attorneys either hired to do it or appointed by the judge from among the lawyers locally available. This became too much a burden on them, so they sought to have a office of public prosecutor created that would be fully funded. The public wanted the elect the person who held that position, because they didn't trust anyone who might appoint them. Seemingly a good idea, but the public mostly didn't know enough about candidates for the office to select only those of good character. They wound up voting for those with the most convictions, regardless of how those convictions were obtained. We would have been better off if public prosecutors were selected at random.
Originally grand juries were supposed to screen proposed prosecutions to weed out any corrupt ones, but grand juries became captured by public prosecutors, or in some states, beginning with California, reduced to a role as auditors of public administration.
It didn't help that many judges rose from the position of public prosecutor, and carried a prosecutorial bias with them.
So now we get prosecutorial corruption that is massive. A new prosecutor in Dallas found that his predecessor has conspired with police to use bags of plaster of Paris as evidence of cocaine. He then tried to get most of the resulting convictions overturned. But he was exceptional.
One prominent legal figure who has condemned legal corruption, and not just prosecutorial corruption, is Alan Dershowitz, in private conversation. Whether one could get him to make a statement on the record is another matter.
Links:
http://constitution.org/jury/pj/pj-us.htm
http://constitution.org/jury/gj/gj-us.htm
2017/04/22
Arrest Assange? For what?
CIA Director Mike Pompeo has announced that they have "found" a legal basis for arresting Julian Assange for his handling of classified information, and he seems to be supported in this position by Attorney General Jeff Sessions. Both men are constitutionally illiterate, and should never have been appointed to those positions.
Some constitutional background on the Assange situation.
First, there are only two bases for charging someone under the Espionage Act.
1. Prosecution under the "contract" that government personnel are required to sign who get access to classified information. It consents to criminal prosecution for improper disclosure of such information. That is the usual ground cited for such prosecution. However, such a contract is a kind of oath, and violation of an oath is perjury of oath. But there is no law making perjury of oath a crime, nor does the Constitution grant congress the authority to pass such a statute. Moreover, criminal prosecution of perjury is a common law crime, and common law crimes are not permitted under the Constitution, as was correctly decided in the 1812 case of U.S. v. Hudson.
There is also no authority to make conspiracy or complicity a crime. This was discussed in the Eleventh Congress and it was agreed that no authority existed.
Even if the contract were to authorize criminal prosecution of the person who signed the contract, it would not apply to parties who did not, such as those who might receive or pass on such information.
So the Act, if constitutional, would allow prosecution of Chelsea Manning but not Julian Assange.
2. Persons can be prosecuted under the treason Clauses for giving "aid and comfort to an enemy", by disclosing classified information, but the treason Clauses only apply to U.S. citizens, not foreign nationals. To Manning but not to Assange.
It is not the First Amendment that protects Assange, but the Tenth. There is no constitutional authority to prosecute him for what he did.
Some constitutional background on the Assange situation.
First, there are only two bases for charging someone under the Espionage Act.
1. Prosecution under the "contract" that government personnel are required to sign who get access to classified information. It consents to criminal prosecution for improper disclosure of such information. That is the usual ground cited for such prosecution. However, such a contract is a kind of oath, and violation of an oath is perjury of oath. But there is no law making perjury of oath a crime, nor does the Constitution grant congress the authority to pass such a statute. Moreover, criminal prosecution of perjury is a common law crime, and common law crimes are not permitted under the Constitution, as was correctly decided in the 1812 case of U.S. v. Hudson.
There is also no authority to make conspiracy or complicity a crime. This was discussed in the Eleventh Congress and it was agreed that no authority existed.
Even if the contract were to authorize criminal prosecution of the person who signed the contract, it would not apply to parties who did not, such as those who might receive or pass on such information.
So the Act, if constitutional, would allow prosecution of Chelsea Manning but not Julian Assange.
2. Persons can be prosecuted under the treason Clauses for giving "aid and comfort to an enemy", by disclosing classified information, but the treason Clauses only apply to U.S. citizens, not foreign nationals. To Manning but not to Assange.
It is not the First Amendment that protects Assange, but the Tenth. There is no constitutional authority to prosecute him for what he did.
2017/04/21
Chemerinsky on judicial abuses
Many if not most of Chemerinsky’s complaints are valid, just misattributed. Judicial abuses are not a matter of conservative vs. progressive judges, as you point out, or of Art. III, which were corrected by thew 14th Amendment.
The Eleventh Amendment, properly interpreted did not confer sovereign immunity on the states, and if it did the 14th overrode that. The Eleventh was about getting money judgments against states that could be collected by executing on assets of the judgment debtor’s choice, like a capital building. There can not be a constitutional bar against a state being sued. States must appropriate a claims fund for the payment of judgments upon application thereto, without relitigating the case in opposing payment. The same principle applies to official immunity, which should never be taken as a bar against suit. Nor should an official be immune for acts committed outside his authority, even if he is “on the job” at the time. The act can be lawful or unlawful from one penstroke to the next.
- See more at: http://www.libertylawsite.org/2017/04/21/whining-about-article-iii/#comment-1537324
2017/04/17
Gun-free or free-fire
No man's life, liberty, or property are safe while the legislature is in session.
Its an odd year so the Texas legislature is in session. The big issue this year is "constitutional carry", the proponents of which want Texas gun laws changed to allow almost anyone to carry handguns openly anywhere and at all times, the way they can now carry long guns. Texas now licenses concealed carry, but forbids open carry, something that irks Second Amendment devotees. Several states have adopted constitutional carry, without becoming war zones, and it seems likely that Texas will soon join them. But Texas does have its complement of gun controllers who are seeking to restrict where and when people can carry openly, with the support of some police professionals. They have introduced several bills, HB 234, 255, 899, and 3989, that would try to expand "gun free" zones, which deserve to be cast into legislative oblivion.
Constitutional carry is appealingly simple, but it does not address all the legitimate concerns reasonable people may have. On poor legal advice to many proprietors adopt the simplistic policy of banning firearms from their premises, thinking that will protect them from being sued if a firearm is misused there. It will not. Eager lawyers will sue anyone from whom they think they can get a settlement. But since many of them rely on liability insurance, and the liability carrier is often eager to settle to reduce costs, that carrier is likely to require the banning of weapons as a condition of coverage.
So we need a different kind of legislation:
Proprietor liability protection
A bill needs to provide that:
1. Proprietors of premises are not liable for the misuse of weapons on their premises unless they personally instigate such misuse, even if they do not forbid weapons on those premises.
2. Suit for such liability must bear all costs of litigation unless they can prove personal complicity.
3. Liability carriers may not make their coverage conditional on banning weapons on the premises.
4. A proprietor who wishes to ban weapons must take custody of such weapons upon entry onto the premises, keep the weapons safely locked in an armory, return them to the bearer upon departure, and return such weapons to the bearer in the event of an incident requiring the weapons.
5. A proprietor is liable for any death or injury that could have been avoided had the weapons been left in the possession of the visitor.
Rival proponents of legislation are trying to write laws applicable to all kinds of people. Proponents of constitutional carry contemplate a population overwhelmingly composed of mature, responsible, competent, "law abiding" people, who are not disposed to misuse weapons, or are even disposed to help enforce the law. Proponents of gun control legislation see a population largely composed of ill-behaved delinquents, drunks, hotheads, untrained, and even members of criminal gangs.
Proponents of constitutional carry see gun control laws as only restrictive on responsible persons, the kind we want to have bear weapons. They see "gun free" zones as "free fire" zones for delinquents seeking easy targets, who will not only ignore laws and signage, but see them as opportunities.
That perception is distorted by the desire of police to be able to justifiably shoot to kill anyone they find bearing a weapon. If the possession of a weapon is not proof of delinquency, their decisions are much more difficult.
One way to limit possession of handguns to the more responsible has been to require a license to carry, available to those who pass a course in the safe and effective use of handguns. The idea of training is a good one, but it should be a requirement for everyone, not just as a condition for obtaining a license.
So what Texas needs is a
Militia Act
1. Each county shall have a Militia Board which shall maintain a roster of residents of the county fit for militia duty.
2. Each resident of a county fit for militia duty must register with the Militia Board of that county.
3. The sheriff and constables of each county and ward or precinct shall serve as commanders of militia in their jurisdictions.
4. In the event a sheriff or constable should be derelict in his duty to serve as commander, the residents of that jurisdiction may convene as militia to elect a commander.
5. All persons fit for militia must be called up at least once a year, organized into militia units, and trained in defense, law enforcement, disaster response, and jury duty.
6. Militia training shall begin at age six, and be conducted in public schools.
7. Militia personnel shall provide their own tools and equipment.
8. Personnel unfit for militia shall be identified, segregated from the remainder of militia, and shall receive remedial treatment.
Such a militia system would be a return to the system contemplated by the Founders, and would go a long way toward reducing misbehavior of all kinds.
Its an odd year so the Texas legislature is in session. The big issue this year is "constitutional carry", the proponents of which want Texas gun laws changed to allow almost anyone to carry handguns openly anywhere and at all times, the way they can now carry long guns. Texas now licenses concealed carry, but forbids open carry, something that irks Second Amendment devotees. Several states have adopted constitutional carry, without becoming war zones, and it seems likely that Texas will soon join them. But Texas does have its complement of gun controllers who are seeking to restrict where and when people can carry openly, with the support of some police professionals. They have introduced several bills, HB 234, 255, 899, and 3989, that would try to expand "gun free" zones, which deserve to be cast into legislative oblivion.
Constitutional carry is appealingly simple, but it does not address all the legitimate concerns reasonable people may have. On poor legal advice to many proprietors adopt the simplistic policy of banning firearms from their premises, thinking that will protect them from being sued if a firearm is misused there. It will not. Eager lawyers will sue anyone from whom they think they can get a settlement. But since many of them rely on liability insurance, and the liability carrier is often eager to settle to reduce costs, that carrier is likely to require the banning of weapons as a condition of coverage.
So we need a different kind of legislation:
Proprietor liability protection
A bill needs to provide that:
1. Proprietors of premises are not liable for the misuse of weapons on their premises unless they personally instigate such misuse, even if they do not forbid weapons on those premises.
2. Suit for such liability must bear all costs of litigation unless they can prove personal complicity.
3. Liability carriers may not make their coverage conditional on banning weapons on the premises.
4. A proprietor who wishes to ban weapons must take custody of such weapons upon entry onto the premises, keep the weapons safely locked in an armory, return them to the bearer upon departure, and return such weapons to the bearer in the event of an incident requiring the weapons.
5. A proprietor is liable for any death or injury that could have been avoided had the weapons been left in the possession of the visitor.
Rival proponents of legislation are trying to write laws applicable to all kinds of people. Proponents of constitutional carry contemplate a population overwhelmingly composed of mature, responsible, competent, "law abiding" people, who are not disposed to misuse weapons, or are even disposed to help enforce the law. Proponents of gun control legislation see a population largely composed of ill-behaved delinquents, drunks, hotheads, untrained, and even members of criminal gangs.
Proponents of constitutional carry see gun control laws as only restrictive on responsible persons, the kind we want to have bear weapons. They see "gun free" zones as "free fire" zones for delinquents seeking easy targets, who will not only ignore laws and signage, but see them as opportunities.
That perception is distorted by the desire of police to be able to justifiably shoot to kill anyone they find bearing a weapon. If the possession of a weapon is not proof of delinquency, their decisions are much more difficult.
One way to limit possession of handguns to the more responsible has been to require a license to carry, available to those who pass a course in the safe and effective use of handguns. The idea of training is a good one, but it should be a requirement for everyone, not just as a condition for obtaining a license.
So what Texas needs is a
Militia Act
1. Each county shall have a Militia Board which shall maintain a roster of residents of the county fit for militia duty.
2. Each resident of a county fit for militia duty must register with the Militia Board of that county.
3. The sheriff and constables of each county and ward or precinct shall serve as commanders of militia in their jurisdictions.
4. In the event a sheriff or constable should be derelict in his duty to serve as commander, the residents of that jurisdiction may convene as militia to elect a commander.
5. All persons fit for militia must be called up at least once a year, organized into militia units, and trained in defense, law enforcement, disaster response, and jury duty.
6. Militia training shall begin at age six, and be conducted in public schools.
7. Militia personnel shall provide their own tools and equipment.
8. Personnel unfit for militia shall be identified, segregated from the remainder of militia, and shall receive remedial treatment.
Such a militia system would be a return to the system contemplated by the Founders, and would go a long way toward reducing misbehavior of all kinds.
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