For those who have waded through posts at SJ recently, you may have noticed a bit of a secondary theme developing, nipping the edges of police and prosecutors violating the laws that constrain them with abandon.
Some are gross violations, say murdering a guy for no particularly good reason except that it happens in the usual course, which tend to catch people’s attention. But these are rare, despite the fact that they make the headlines and give the misimpression that it happens constantly. The conduct may happen constantly, like a chokehold, for instance, but the outcome, fortunately, does not.
The focus here, however, is on a very different type of violation of the law. The government, and those individuals who act on its behalf, has no rights. Yes, judges and prosecutors write about the rights of the government, but they’re screwing up the words. The government has authority, and that authority is derived from laws that grant the government authority. The exercise of that authority is both granted and restrained by the law. They have neither more nor less than the law allows.
For example, let’s say a law requires the government to turn over certain documents to the defense within 30 days of a request. The request is made. Thirty days pass. Nothing is turned over. Unlike someone being murdered, this sort of thing happens constantly. Granted, it’s nowhere near the level of seriousness of killing someone, but then, someone being murdered is an outlier; this is banal.
The remedy is usually a motion by the defense for an order by the court to compel the prosecution to do as the law requires it to do. If one believes in such things, this is an incentive for the government to ignore law unless and until a judge orders it to comply. If not, it’s a free pass on violating the terms of the government’s authorization to use its might against the people.
Why is this not a problem for judges?
Consider the defendant who stands in the dock for a strict liability, hypertechnical regulatory violation. His crime is having engaged in conduct which, on its surface, harms no one and no ordinary person could conceivably know is a bad thing to do. Despite his “ignorance of the law,” and the law allegedly violated being so far down the malum prohibitum road that it strains a rational person’s credence to believe that this could send a guy to Club Fed. But it can, and it does.
How does the prosecution’s violation of the law, the rules that are putatively fixed to govern how it takes this miscreant down, hauls him into court, gives him as little due process as possible and then, if the heavens align, puts him in prison, differ?
Why is it that prosecutors violate their enabling laws, the constraints that the legislative branch sets on their authority, the mandate that they perform or not perform acts, and yet nobody gives a damn, or even if its worthy of mention, there is no consequence?
If a defense lawyer lied to the judge, he would leave the courtroom in cuffs. When a prosecutor lies to a court, the judge goes out of his way to explain how it wasn’t intentional. Why?
This isn’t about Brady violations, which raise a plethora of other, far more nefarious problems. This is about the routine, daily, ordinary, common failure to adhere to the requirements imposed by the law on the process by which government authority is granted to the prosecution.
Judge Kopf, can you explain to me why do judges shrug off the prosecutor’s violations of law? Just asking.