Missouri Prosecutors join Obama “truth squad”

Who is the most dangerous when they abuse power?  Police? Prosecutors? Judges?

Police work under many rules. If they do not follow the rules they eventually get caught. They can be dangerous to some individuals, but unless the judge and prosecutor join them, the potential for abuse is limited in both time and scope.

Judges are probably the least dangerous cog in the machine. They cannot bring charges against anyone. They can only affect cases that are brought before them. If the prosecutor doesn’t like the way they do business, he can kick them off the case. If the judge does something wrong in the case, a conviction can be reviewed and overturned by an appeals court.

prosecutorNow to the prosecutor.  When it comes to charging criminals with a crime he operates with few restraints and with absolute immunity. His power extends to every person who enters his jurisdiction.  He can charge anyone with any state crime if just one person is willing to make a statement that the accused probably did something that could be considered a crime. This is all it takes to put the accused behind bars, where they may–or may not–get out on bond.

Months may pass before the accused gets to see the evidence against him at his preliminary hearing. And if the charge is baseless, a judge will finally dismiss the charge. By now, the poor guy has probably lost his job, maybe his house, but hopefully not his family.

But it can still go on. If the prosecutor wants to play out the bad hand, he can bring the accused person’s enemy before a grand jury to get an indictment (instead of having a judge decide at a preliminary hearing).

There is a saying that if the government wanted to, it could indict a ham sandwich. That doesn’t mean grand juries are stupid, just that that they see and hear only what the prosecutor wants them to see and hear. They seldom indict (or refuse to indict) unless that is what the prosecutor wants.

So the prosecutor can get the accused indicted on baseless charges and the accused sits in jail for many more months. When the trial date arrives he can either dismiss the charge at the last minute or–what the heck–let an assistant prosecutor try and lose the case. They need the practice anyway.

This is why a prosecutor can be so dangerous. It’s the reason why good prosecutors are very careful about their power. And why people should be beware the prosecutor who is partisan, or even casual, about their duties. There is nothing casual about it.

Now we have the disturbing news story over the weeend that two of Missouri’s top prosecutors have joined the Barack Obama “truth squad.” St. Louis City and County prosecutors Jennifer Joyce and Bob McCullough (and others) have pledged to react swiftly to unfair attacks on Obama and to what they consider ethical violations by Obama opponents. I’m not trying offend to Democrats here, because I’d be no more surprised, and just as offended, if it were the McCain “truth squad”.

Watch the video and see what you think. Technically, they haven’t crossed any legal line. It’s kind of like offending the King: once you know what he wants, only a fool does otherwise.



Needless to say, such intimidation tactics–harmless in the mouths of bloggers–cannot be ignored when threatened by prosecutors. I consider such political involvement by prosecutors inexcusable conduct in a job that has no business involving itself in partisan politics. It’s bad enough that prosecutors must be elected in partisan contests.

I notice that the governor issued a press release condemning the “police-state tactics” of these officials.  Even so, if you are in the east end of the state, don’t look for the  governor to save you if a prosecutor decides you may have been unfair in a way that they consider criminal. The real purpose, of course, is not to prosecute opponents, but simply to shut them up.


Plea bargains are often misunderstood

Jefferson City criminal defense lawyerSometimes we read opinions in the media or online–and knowing just what we have been told–we may tend to accept the viewpoints expressed. The great exception, however, is when we happen to have inside information on the story. Suddenly we understand how limited the public perception can be. We see how the criticism does not conform to the reality. Now, if WE see the defects when we DO know the score, shouldn’t that engender some skepticism (and humility) in those cases when we do not?

The news this week was that Eric Feltner (former chief of staff for Lt. Gov. Peter Kinder) pled guilty to the misdemeanor of “displaying sexually explicit materials.” He had originally been charged with two misdemeanor counts of attempting to provide pornography to a minor.

The court–following the plea agreement between the defendant and the prosecutor–sentenced Feltner to 60 days Jail, suspended the sentence and put him on 2 years probation on the condition that Feltner complete 100 hours community service, and that Feltner not use the internet except for business purposes. Feltner must now register as a sex offender in the county where he lives (for at least the next ten years).

Internet blogs and comments are steaming with uninformed rants, such as in this article from the political blog FiredupMissouri: Cole Co. Prosecutor Mark Richardson Continues to Coddle Republican Sex Offenders

FiredUp’s partisan attack on the prosecution declared the result “sickening,” demonstrating FiredUp’s superficial understanding of the criminal justice system. The blogger, who uses the moniker “Howard Beale,” complained that Richardson delayed a year before the filing of charges. Beale had earlier complained that felony charges–not misdemeanor–should have been filed. And he complained that the sentence was too lenient.  Such criticism, coming from an outsider, seems unfair.

A few points:

  • Taking a year to file the charge: If such a delay suggests anything, it’s that this case was not strong to begin with. It sounds like the prosecutor worked it for a year–and with the statute of limitations about to run out–he filed the best case he had. This is totally standard operating procedure.
  • Not filing felony charges: How anyone could level this charge without reading all the reports is, to me, a mystery. A complete total mystery.
  • The sentence was too lenient: Everybody’s an expert on this? Right? That depends on the evidence. This misdemeanor charge is not minor-related. The initial accusations were, but the law that Feltner admitted violating makes no reference to any victim (of any age). If the evidence was weak, the prosecutor may have believed this plea bargain was the best result he could get, considering the possibility of a not guilty verdict.

If he thought the accused was a future danger, he may have believed it more important to get this fellow into the record books. Two considerations may have been in play:

  1. Feltner must now register as a sex offender. His neighbors will be able to track him.
  2. Although this was a misdemeanor, any second offense will be a felonyClick here to read the statute.

The prosecutor (like his critics) may not have been satisfied with this result, but decided that half a loaf was better than none. I don’t know myself, but without more, I’d give him the benefit of the doubt.

Come back with a warrant

Some crimes really ARE too small to prosecute

When I was a prosecutor, we had a form that we filled out whenever we decided not to file a case. There was a list of official reasons, from which we were expected to choose the main reason why the case was not being filed.

There were the usual choices you might expect, like:

  • insufficient evidence

  • witnesses not credible

  • evidence not admissible, etc.

But there was one official reason that we occasionally used, even when the charge was perfectly good. It was the one that stated that prosecution would be in the “trivial interests of justice.”

I was reminded of that particular reason when I read this news story from Des Moines:

Iowa man charged with throwing candy at police

 

It seems the officer was speaking to a witness, when–according to the police report–the officer was assaulted by another man who hit him on the shoulder with an M&M.

Now I know that assault of a law enforcement officer is not a laughing matter, but sometimes . . . well I just wonder if this wasn’t one of those “trivial interests of justice” situations.

 

It’s not so great to be the State . . . except when it is.

Let’s even up the books and note some advantages that the defendant has in a criminal case.

In the last post I mentioned that the accused gets to “hide” evidence in his possession that would tend show him to be guilty. And he CAN appeal a loss, because, while double jeopardy prevents the state from re-trying him, he can ask for a new trial. If he wins the appeal he may get one.

Some other differences relating to the defendant

  • He doesn’t have to testify; and no one can even mention to a jury that he hasn’t testified. A smart defense attorney might even leave the impression that the “mean old state” didn’t even let allow him to tell his story.
  • The whole burden is on the state to prove the case. If the defendant can raise a single reasonable doubt about ONE element of the state’s case, the jury must acquit the defendant.
  • The defendant gets to choose between having his case decided by a judge or a jury. That is important in most cases.
  • The defendant gets to choose (in many cases) between having his punishment decided by a judge or a jury.
  • The defendant cannot be convicted unless all 12 jurors agree. While the principle that a verdict must be unanimous applies to both “guilty” and “not guilty” verdicts, this rule is really in favor of the defendant.

My experience is that unless a jury can resolve its differences fairly early in the deliberations, the jurors holding out for a “not guilty” verdict tend to be more tenacious, while the “guilty” votes seem a bit more likely to yield, as in the movie 12 Angry Men.

As I’ve mentioned in another post, even the prosecutor and the defendant’s attorney are treated differently if they make an error in the trial. The prosecutor’s mistake is called “misconduct,” while a bumbling defense attorney is called “ineffective.”

The question of fairness and balance really comes down to the question of whether our courts are successful in convicting the guilty and releasing the innocent. That is an issue we will never resolve.

Something from a former prosecutor to a new prosecutor.

FarewellToday is my last day in the prosecutor’s office. Then I begin my law practice here in Jefferson City. I expect that I will do a significant amount of criminal defense work, despite the fact that most of the last 14 years have been spent in charging and (mostly) convicting criminals. The number of felons that I have sent to the state pen is more than I can count.

Not surprisingly, there are many folks who cannot understand how one can switch sides and defend the accused instead of prosecuting them, especially after so many years.

I remember feeling that way early in my career. Naturally, when you are brand new, you are scared and feel like you are in over your head. That’s because you are. But after awhile you gain confidence. You’re a professional prosecutor. You become practiced at charging the bad guys and doing whatever it takes (within the rules, of course) to get them convicted.

But the pure pleasure of getting a big conviction does not last. Sure it’s good to give the victim a measure of justice, but you cannot make them whole again. Sadly, they and their families may be damaged for life.

And there is the defendant. His life may be ruined too, and the fact that he deserved it does not make it any less a tragedy.

To the prosecutor who takes my place, I hope you will keep some things in mind:

  • You have the power to help victims and the power to punish those who refuse to follow the law. Be careful what you do with that power, for you also have the power to destroy lives. Try to remember that the accused is owed the same respect as anyone else.
  • I remember a prosecutor who taught that the defendant in a jury trial should be treated with scorn; that he should be dehumanized. Presumably the jury would understand how guilty he must be. I admit that in some of my earlier trials before a jury I adopted a rather contemptuous attitude toward the accused, often refusing to refer to him by name during the trial.
  • Later I discovered how foolish this was: that I would be better received by treating the defendant respectfully and using his proper name. It seems that when the jury understood that I was being fair and decent to the defendant (even though he may have been despicable), they became more trusting and receptive to me because they felt I was giving the guy a fair, honest shake.

It’s great when the right thing turns out to be the most effective. Live long and prosper.