Tag: prosecutors

Conrad Black on American Criminal Justice

Conrad Black, writing at National Review Online, blasts the “plague of unjust prosecutions” in the American legal system.

Here is an excerpt: 

Another disturbing recent development in the saga of gonzo American prosecutors is New York State attorney general Eric Schneiderman’s prosecution of the Evans Bank for violating consumer-protection regulations by not adequately making loans available in lower-income, largely minority, areas of Buffalo. These laws are sloppily written and are just pandering to specific income-level and ethnic voters, and enable opportunistic prosecutors to intensify their campaigns for higher office by pandering to targeted voting blocs and trying to superimpose affirmative action over commercial criteria on how banks treat their depositors’ and shareholders’ money. A competing bank chairman, not involved in any such case, Frank Hamlin of Canandaigua National Bank, wrote last month in a letter to his shareholders that he was “extremely suspicious of the arbitrary and capricious manner in which [prosecutors] are abusing the legal system in order to further their own political and economic interests.” Of the prosecution of Evans and another bank, he wrote that “the regulations are vague on explaining what conduct is actually prohibited. The media, of course, does the people no service by merely assuming these prosecutions are based in sound legal theory and fact … [unaware that the] legal system has mutated its focus from time-honored legal principle and justice to efficiency and political expediency… . The reason that 98 percent of prosecutions are settled and not taken to trial … has to do with a fundamental and reasonable lack of faith that our legal system is working properly.” It is a brave stand for a community banker to take opposite an attorney general who seeks votes by abusive grandstanding in the Spitzer-Cuomo tradition (that propelled both of them to the governor’s chair)….  The United States is afflicted by a plague of unjust prosecutions, almost automatic convictions, and often one-way tickets to a bloated, corrupt, and frequently barbarous correctional system. This is not what the founders and guardians of the sweet land of liberty intended.
Read the whole thing.
For related Cato work, go here and here.

Salinas v. Texas

Today, the Supreme Court issued its ruling in Salinas v. Texas. Surprisingly, the Court did not answer the primary question court watchers were expecting, which was whether a prosecutor can deride a person’s reliance upon the right against self-incrimination when that person has not been arrested. The Court said it did not have to reach that question because the person here, Salinas, never really properly invoked his constitutional right against self incrimination.  And because he didn’t, there was nothing wrong with the prosecutor’s comments at his trial. This is a lousy ruling.

A bit more background. Everyone knows from TV shows, that once a person is arrested and the police start an interrogation, the Miranda warnings are given.  “You have the right to remain silent, right to a lawyer if you cannot afford one and anything you say can be used against you in court, etc”  The Supreme Court has also held, properly, that if anyone declines to take the witness stand during the trial, the prosecutor can’t attack that choice to the jury with comments like, “He could have taken the stand to tell us his side of the story, but he didn’t. That tells us quite a bit, doesn’t it?” The rationale against allowing that sort of “evidence” is that if one really has a right against self-incrimination, the government should not be permitted to attack it. The prosecutor must use other evidence to persuade the jury of guilt.

So, again, the government can’t offer negative comments on the choice not to testify and may not offer negative comments on a person’s choice to remain silent after an arrest. Salinas brought the question, what about silence before an arrest? Cato filed a brief saying prosecutors should also be barred from attacking pre-arrest silence.

Justice Alito announced today that the main question is again postponed for another day. The Court said Salinas simply remained silent and did not “formally” invoke any constititional right, so prosecutors could offer commentary to the jury. What’s most disturbing about the ruling is its discussion of “burdens.” The plurality put the onus on the individual, not the government. That is the profound error in the decision. As the dissenters noted, in the circumstances of the case, it was evident what Salinas was doing. Unfortunately, the Supreme Court has complicated the law for persons who are the most vulnerable–persons who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol. This is a bad day for the Bill of Rights.