The link was sent here by Mike Paar, who sends over a lot of links, mostly about cops or prosecutors behaving badly. This one was different, and the subject line reflected it: “Call them out when they do wrong, but praise them when they get it right.”
In Carson City, Nevada, District Attorney Jason Woodbury declined to prosecute a murder.
The Reno Gazette-Journal reports that 88-year-old William Dresser was arrested in January 2014 for killing 86-year-old Frances Dresser, his wife of 68 years.
She was at Carson Tahoe Hospital after a fall at home caused permanent paralysis.
Carson City District Attorney Jason Woodbury says Frances Dresser expressed a desire to no longer live and that her family requested William Dresser not be prosecuted.
It’s not that Woodbury couldn’t prosecute, but that he didn’t want to.
“I didn’t view there being any component of evil to his act of killing,” Woodbury said. “We can talk about judgment, and morally whether it was a right or wrong decision, but I didn’t view any aspect of it as evil. That’s truly the component you need to have in a murder case is an evil motive and we didn’t have that.”
There appears to be little doubt that this was true. William Dresser had no criminal history. Frances Dresser expressed her desire to end her life. At 88 years of age, suffering from advanced-stage prostate cancer, what purpose would be served by prosecuting a man whose wife was paralyzed and begged him to end her misery?
For many, William Dresser’s decision would be completely understandable, indeed laudable, and Woodbury’s exercise of discretion deserves praise. He is quick to note that this doesn’t reflect a determination that assisted suicide is acceptable, but only that, in this particular situation, prosecution was not warranted.
“We also wanted to be very cautious to not set a precedent that assisted suicide was tolerated in Carson City,” he said. “My role as a prosecutor is not to make the law or those type of policy decisions. It’s up to the Legislature to take that kind of act.”
This is where an act of praiseworthy discretion runs head first into a wall. By no means does this suggest that William Dresser should be prosecuted. It’s absurd at every level. But as with the exercise of discretion when a prosecutor finds a particular individual under specific circumstances lacks the degree of moral culpability, “evil” as he called it, that compels prosecution, that can flip back on us when he reaches the opposite conclusion.
What if the next guy is, in the district attorney’s estimation, especially evil?
The platitude is that we’re a nation of laws, not men. The significance is that the blunt weapon of government prosecution isn’t to be wielded according to the personal feelings of a prosecutor, to land softly when he feels like it, and hard when he feels like it as well. Or not land at all, as in this case. Because he feels like it.
Much as the facts and circumstances in William Dresser’s case are particularly compelling, that this isn’t the one where society demands a prosecution, where we cry for restitution, there is no question that William Dresser committed murder. Murder. It’s a big crime, pretty much as big as it gets. And here, it was, in essence, forgiven. William Dresser got the proverbial one free murder.
It’s almost impossible to imagine that Dresser will go for two. That’s not what this is about. If anything, his murder was an act of love and mercy toward his wife, potentially sacrificing whatever time he had left for her sake. Only the most heartless animal would want to see him punished.
But what if William Dresser was a cop? Would that give rise to some eye rolls, some cries of favoritism, demands for the equal application of the law to him as it would be to others?
What about the next William Dresser, whose wife was incapable of expressing her desire to put an end to her suffering, but whose husband knew what she wanted, understood her pain, and made the same sacrifice?
And what of the gangbanger who demands to know why his offing some rival gang member by putting a gun to his head is any different under the law than what William Dresser did here? He might argue that the other guy knew what he was getting into when he chose life in a gang, did something that virtually assured his demise under the rules of life on the street, and the shooter merely gave him what he asked for.
Why is a clear, provable murder to be forgiven in one case, where the prosecutor is sympathetic, but not in his case, because the prosecutor doesn’t “get” gang life and, even if he did, wouldn’t be inclined to forgive and forget? Why is one lifestyle fine with the prosecutor, but not another? Why is it up to the prosecutor’s discretion, and he got the losing lottery ticket?
The exercise of prosecutorial discretion to be more lenient, more understanding, is the sort of thing we should encourage and applaud. This was, at least by my sensibilities, a good decision, and one that demonstrates empathy and understanding on the part of the guy who wields the bludgeon. But then, that’s because I agree with his decision.
To exercise discretion toward leniency when the application of the law would be unduly harsh and serve no legitimate purpose is as it should be. It’s a relief valve for an imperfect system, because laws, no matter how carefully crafted, never seem to adequately cover every conceivable act that a person might do.
Yet, discretion isn’t a one way street, only heading toward leniency and never bringing the full weight of the bludgeon down on someone’s head when the prosecutor decides he’s particularly evil, especially deserving. And as much as we may credit Jason Woodbury for the wisdom to let this murder go, we should be wary of complacency about discretion, as it doesn’t always head in this direction.
1. “To exercise discretion toward leniency when the application of the law would be unduly harsh, serve no legitimate purpose, is as it should be.” Typo?
2. A reason prosecutor is a political office is to exercise discretion, whether to exercise leniency where warranted or to choose which cases to pursue when resources are limited.
3. I know anecdotes are abhorrent, but I am reminded of the last of the Kevorkian prosecutions (the one where he was guilty). I had the chance to call in when the prior elected prosecutor, Richard Thompson, was on a radio show, and ask why he thought Kevorkian’s abettors, the widow and brother, weren’t prosecuted. His answer was “to be able to prosecute the greater evil,” without mention of leniency or jury nullification.
Typo fixed, thanks. Clearly, prosecutorial discretion is an accepted, and necessary, aspect of the system. But what people forget, particularly those who think jury nullification is the answer to our problems, is that discretion is a two-way street. We love it when we agree with it. We hate it when we don’t. But we fail to recognize that the nature of discretion is that we leave it up to someone else’s sensibilities to make the call, and the call can go either way.
Who fails to recognize the nature of discretion? Surely you don’t, and, if I may be vain, neither do I. For every Jason Woodbury there is a Niketh Velamoor. And there are elections at least every other November. Some may think Rehnquist’s notorious memo to Justice Jackson urging him to follow Plessy disquieting, but his comment about the nature of majorities was spot on.
The general public almost always fails to understand the nature of discretion.
These are the same people (on whatever side you want to point at, even the Libertarian middle) that cry out for “the will of the people” until ‘the people’ vote in a way they disagree with, at which point it becomes “stupid people…”
People like those who bitch about the America-hating commies who support the freedom to burn the American flag, until you point out that Justice Scalia voted with the majority.
People who cry about how the Supreme Court is ‘a wholly owned subsidiary of the Republican Party’ until you remind them of the ruling by the Roberts Court upholding the individual mandate of the ACA as constitutional.
A few people might grasp the dual nature of discretion and democracy (good when we agree with it, bad when we don’t), but I’ve long since come to believe that those people are a dwindling minority.
Correct. Prosecutorial Indiscretion is the flip-side of Prosectorial Discretion. Some of us laud the discretion side of the street–when it occurs–but when the prosecutor enjoys “qualified immunity” for indiscreet acts or acts of malice himself, he is free from official opprobrium. This is wrong, simpley. And crazy to boot. This is very important. Unfortunately, as a society, we seem not to be able to understand the contradictions. Until such time as we do understand, academics and professors with too much time on their hands will be aimlessly searching for their respective Legal Eldorados.
I can’t tell you how much it tickles me when you agree with me. Then I start to wonder what part I got wrong.
These are the sorts of situations I use when discussing issues with folks who see the world as entirely black and white, rather than myriad shades of gray. Black and white is easy, gray isn’t, and most folks prefer the comfort of certainty, even if it’s wrong, because it absolves them of making hard choices.
Jason doesn’t have much faith in grand juries I guess. Isn’t this their job?
I wonder if Jason would learn the art of “no comment” if the current sitting grand jury in his jurisdiction demanded a full inquiry into his actions particularly the verbage he chose to use when addressing this particular case? Do pepole go to jail for accessory after the fact in his county?
Who knows perhaps they would see through the “evil” or lack thereof and agree with him. If so I wonder if he would take anything from his experience?
It seems to me everyone who gets a paycheck directly of indirectly from the justice system is always so unsure about juries?
Juries are supposed to be where it’s at no?
Yes, but come on, what difference would it make to put grand jury lipstick on the prosecutorial discretion pig? They’re still going to do as the prosecutor wishes.
Does this mean you don’t want to invest in my new grand jury reality tv show?
If so perhaps I can talk you into investing in my primary school educational civic duty and you video series which will include action figure heros. You can decide if I give the jurors numbers or go with cool haircuts and capes if you chip in 50 grand.
The only way I’d consider this is if Fubar cowrote the script. I liked the way you collaborated on the Affirmative Orgy Train – very erotic. I could practically feel Dirks’ mustache tickle my chin as I read.
Send me more samples in this vein. I might call you.