At the commencement of the prosecution of Ali Mohamed Ali, the first prosecution of a “pirate” on the high seas in the United States in 100 years, the government “represented” that they had the goods.  Of course, he wasn’t a cool pirate, with a peg leg, a cutlass and a parrot. He was more of a lame pirate with a telephone.

Take the case of Ali Mohamed Ali, who was taken into U.S. custody two years ago when he flew through an airport in Virginia on his way to an educational conference. According to the report,

Mr. Ali is accused of boarding a Danish ship days after it was overtaken by pirates in 2008. Prosecutors say he acted as a go-between; they charged him with aiding and abetting piracy.

Eugene Kontorovich, a law professor at Northwestern University, says that’s a new take on piracy laws dating back to the 1700s.

“This is quite different from ‘attempt,’ where people are trying to actually commit the acts that classically constitute piracy. This is an entirely new theory,” he says, “that subsequent help to piracy, to pirates, makes you a pirate.”

Definitely unsexy. Not even remotely romantic. And, lest anyone forget, the Somali pirates were horrible murderous scum. But the government “represented” that Ali was a pirate, and that under America’s view of its authority as world policeman, it had the authority to prosecute.  And so, from his capture in 2008 until now, he sat awaiting his day in court.

Suddenly, the government’s “representations” aren’t panning out quite as well as expected.  Via the AP :

U.S. District Judge Ellen Huvelle was furious when prosecutors told her at a status hearing last week that the alleged pirate, Ali Mohamed Ali, had been in international waters for only 24 to 28 minutes and they can’t specify how he facilitated piracy during that time.

“It’s astounding to me,” Huvelle told a prosecutor at Friday’s hearing, according to a court transcript. “I have the pleading where they (prosecutors) said this is no problem, you’re going to prove that he was on international waters. I didn’t know that you’d prove it for less than 24 hours.”

It’s similarly astounding that Judge Huvelle was sufficiently willing to just accept the government’s “representations” in the first place.

She said she wanted it “known to whoever reviews this in your office or the Court of Appeals that I feel the government has misled me badly.”

“The criminal law does not exist to go to push something to the outer limits,” Huvelle added. “That’s not what a criminal case is about. You should not be prosecuting a case that you cannot win. It is an outrage.”

It is indeed an outrage, and the question remains whether it was an outrage the court invited by blindly accepting the government’s allegations, wiping her hands and walking away from the grave.

In fairness, this is hardly unusual, as federal judges almost invariably accept the government’s representations as true without hesitation.  After all, these are federal prosecutors, and they would never mislead the court. Never lie. Never make a mistake. Never be wrong. Never.

Ali was charged with conspiracy to commit piracy; piracy under the law of nations; conspiracy to commit hostage taking; and hostage taking. On July 13, Huvelle dismissed the conspiracy to commit piracy count, but Ali still faces up to life in prison if convicted on the remaining counts.

The judge also ruled that for the other piracy count, the government would have to prove that Ali “intentionally facilitated acts of piracy while he was on the high seas” — and not in Somalia’s territorial waters or somewhere else. Last week, the government filed a motion asking her to reconsider that ruling. Prosecutors said Huvelle didn’t have the benefit of United Nations legal experts and independent scholars whom the government said have declared that a U.N. convention on law of the sea is not restricted to a particular “geographic scope.”

Yet Huvelle refused to reconsider,

Huvelle told a prosecutor to “have a seat” as she announced she would not reconsider her ruling.

“This guy has been held on your representations since April 2011; is that correct?” she said. “And now you think that there’s a legal problem. If you had any concern about it, you should have raised it before now.”

While there is always a certain schadenfruede associated with a prosecutor being dressed down by a judge, it happening so rarely as to merit notice and applause, the problems it reveals go far beyond.  In a system which, according to the carvings on the courthouse lintels, relies on adversarial challenge to test the merit of a prosecution, the reality is that “the government says so” is good enough in almost every courthouse in the nation.  The court may well have been misled as to the strength of the government’s case, but what of the judge’s responsibility not to embrace one side so dearly as to do nothing more than stamp “approved” on their  indictment and detention order?

In the New York state courts, a defendant can move to “inspect and dismiss” an indictment for failure to support the indictment. There is no comparable federal motion, the government being so utterly trusted that if accuses a defendant (and let’s not forget that grand juries haven’t panned out as well as theorists hoped), then for the balance of the case it is assumed (though not presumed, as that would be wrong) that the defendant is guilty and will eventually be convicted.

Nobody without a horse in the race ever takes a hard look at whether the government’s case is completely crap.  And the defendant sits in jail, often for years, because nobody figures there is any chance he’s going to win.

This would seem a really good thing for a judge to do, to take that hard look at the government’s case rather than just nod their head in approval at the government utters accusatory words.  If not the judge, then who?

While it’s heartwarming that Judge Huvelle is outraged and astounded by the government’s representations that aren’t borne out by the proof, it would have meant a whole lot more to the defendant if she had been a bit more skeptical two years ago, when a man was held based on nothing more than the government’s “representations.”  While it’s better late than never, it’s even better had the judge come to this realization in the first place.