In a powerful post,  Jeff Gamso quotes from a 1999 dissent by the late Chief Justice of Ohio, Tom Moyer in the sadly appropriately named State v. Fears :

Time and time again this court has commented on the impropriety of a prosecutor’s argument throughout the course of a capital case. Time and time again we have given prosecutors the benefit of the doubt, declaring their conduct to be nonprejudicial in view of overwhelming evidence of guilt.
However, despite our best efforts to clarify the limits of acceptable advocacy, and our stern warnings to avoid such inappropriate conduct in the future, some prosecutors continue to unabashedly cross the line of vigorous but proper advocacy. In doing so, they taint the fairness of our criminal justice system.

Ohio’s late Chief Justice, Tom Moyer, wrote that in 1999.  Admonition without consequence.  Threats without substance.  Next time.  One of these days.  Just wait.  

The lesson in criminal law is that when wrongs go unrighted, they get rewarded. That courts know it’s wrong and yet decide to excuse it creates an incentive system that encourages wrong. In criminal law, the countervailing argument is that “the evidence of guilt is overwhelming,” and the judges can’t find the mettle to uphold the law if it means a guilty man gets a chance.

The flaw of this argument is twofold, that perhaps the evidence wouldn’t be so overwhelming if misconduct hadn’t permeated the trial, and that even the guilty are entitled to fair trials. But the point isn’t that they don’t know right from wrong; they simply lack the will to make it happen.

In a New York Times op-ed, Randall Rader, Chief Judge of the Federal Circuit, together with lawprofs, Colleen Chien and David Hricik, raise a similar complaint about patent trolls, who they define as:

The onslaught of litigation brought by “patent trolls” — who typically buy up a slew of patents, then sue anyone and everyone who might be using or selling the claimed inventions — has slowed the development of new products, increased costs for businesses and consumers, and clogged our judicial system.

Their business plan is simple: trolls (intellectual-property lawyers use less evocative terms like “non-practicing entities” and “patent-assertion entities”) make money by threatening companies with expensive lawsuits and then using that cudgel, rather than the merits of a case, to extract a financial settlement. In the apt summary of President Obama, who on Tuesday announced a plan to stave off frivolous patent litigation, trolls just want to “ hijack somebody else’s idea and see if they can extort some money .”

President Obama has a plan to deal with this frivolous patent litigation. Why? Because judges, who have always had the authority to stop it, haven’t.

Lost in the debate, however, is that judges already have the authority to curtail these practices: they can make trolls pay for abusive litigation.

Section 285 of the Patent Act, as well as Rule 11 of the Federal Rules of Civil Procedure, give judges the authority they need to shift the cost burden of litigation abuse from the defendant to the troll. But remarkably, judges don’t do so very often: by our count , fees were shifted under Section 285 in only 20 out of nearly 3,000 patent cases filed in 2011.

And if you replace the word “patent” with copyright, you end up with  Righthaven and Prenda, where persistent and aggressive lawyering and judges willing to do their jobs have demonstrated that they have the power to correct and punish vexatious litigation if they choose to use it.

But this rarely happens, and judges do everything in their power to  seize upon excuses to avoid the “harsh” and dirty work of cleaning up our legal system. It’s not that the system comes anywhere near the glory we conveniently attribute to it when deciding what to chisel into the courthouse lintels, but it’s not nearly as bad in theory as it is in practice. As Chief Judge Radar points out, the difficulty lies in men and women in robes doing what they are authorized to do, even if that duty is unpleasant.

As this suggests, the theme of judges taking the path of least resistance, the course that simultaneously requires the least amount of effort (as it’s hard work explaining why an action is frivolous and the recalcitrant party was vexatious sufficient to pass muster with an appellate court) and doesn’t directly outrage the loudest litigant in the courtroom, pervades the system. The carefully conceived incentives, the balance of power if you will, that’s meant to compel all sides to act in accordance with the rules that assure fairness, don’t work when the rules to prevent impropriety aren’t enforced.

So judges don’t want to harsh the mellow of patent trolls, and by doing so allow them to run rampant and trash businesses and individuals?  Is there a reason why they are so much less concerned about the people being harmed than the trolls extorting money?

And in criminal cases, when harsh warnings are given, in Justice Moyer’s words, “time and time again,” they amount to nothing more than empty admonitions. There is never a point when “time again” runs out, as there is an actual rule, harmless error, to protect prosecutorial impropriety from attack. 

If President Obama, or any other president, or senator or representative, wants to fix a problem, there is a huge one staring them in the face that’s ripe for fixing. As with patent trolls, copyright trolls and vexatious litigants, judges have the power to fix the problem. They just don’t have the will. 

And of all these problems in our legal system that do harm and provide incentives for scoundrels to abuse the system, the one which garners the least concern and has the least likelihood of ever being fixed is the one that puts people in prison and sometimes kills them.  Maybe if we added the word “troll” to the end of prosecutor, somebody would give a damn.