We Who Are About To Die

The Romans loved their gladiator games.

I actually have no idea if that's true. Most of what I know about gladiators comes from how they're portrayed in Ridley Scott movies. For all I know, Romans did not actually enjoy seeing innocent people torn apart in the arena by wild animals or what have you.

But, to quote Philip J. Fry, "it's a widely-believed fact!", so we'll run with it.

It seems clear that a huge part of the second Trump administration will be vindictive political prosecution of his "enemies". This was a recurrent campaign theme of his, from proposing "military tribunals" for the likes of Liz Cheney to alleging "COVID crimes" by Anthony Fauci. Willingness -- implicit or explicit -- to engage in such thuggery has been a theme of his early announced appointees, from Kash Patel to Brendan Carr to Pete Hegseth. Concern over such tactics was expressly raised by Joe Biden in his pardon announcement for his son, Hunter. How deep down the list will he go? Unclear, though normalcy will not save you. The hammerfist coming to smash American rule of law is something unprecedented in my lifetime.

These prosecutions will be lawless along every possible dimension. The people driving them won't care about the law. The venues will be selected based on political convenience (I bet one will be amazed at how many of the "crimes" in question will center on the Western District of Texas). The "crimes" themselves either will be frivolous or nakedly selective. It will be undisguised authoritarian thuggery: the apparatus of law enforcement entirely perverted to immunize the president's allies while harassing his enemies (the almost-assured pardon of the January 6 insurrectionists is also part of this story).

I won't here venture a prediction as to how the judiciary will respond to these endeavors. It's possible they'll hold the line, as they largely did in 2020. But it's also the case that in 2024 the conservative legal movement has embraced and assimilated into full-blown MAGAism to a far greater degree than in 2020; even if they don't actively embrace the conspiracism (which they might), one can very easily imagine them hiding behind rules of deference to enable Trump to run wild.

The open question I want to consider, though, is how the public will respond to all of this. Of course, Trump's base will love it -- they've been baying for blood since 2016. And equally obviously, people like me will hate it. But I have a bad feeling -- maybe doom-mongering, maybe not -- that these spectacles of prosecution will go over better than one would think with low-information independents.

The reason isn't because they necessarily have strong opinions that Joe Biden or Anthony Fauci or various military generals actually are criminals. Rather, it is a more inchoate desire to see "the powerful" get their comeuppance. It almost doesn't matter whether they're guilty or not; the mere practice of seeing people one is accustomed to thinking of as "above you" laid low, ripped apart by the animals in the arena, is desired in of itself.

Consider what is for me one of the most infuriating aspects of Trump's victory: that he will not be held accountable for his many, many blatant crimes. No sentencing for the New York felony convictions, no consequences for the attempted 2020 insurrection, no pursuit of the document theft case, no nothing. It is maddening, to see such naked abuses of power result in nothing simply because Trump is powerful enough to evade responsibility for anything. If you take that indignant sensation and shear it from any substantive political knowledge, you're just left with the boiling resentment that a vague "they" keep "getting away with it". And the mere performance of going after a "they" can appeal to those resentments -- a fascist essence where the struggle is valuable in of itself, to show oneself to be the tribune of the people.

This suggests that Democrats could have leveraged this same atavistic desire to get at a powerful "them" by, for example, a fast Garland or prosecuting big bankers for the financial crisis or going after Elon Musk. And much like with echo chambers, I'm of two minds on this: torn between thinking that (for better or for worse) this is the strategy that works, versus thinking that it is a bad thing to encourage this sort of political climate (to be clear: I have no quarrel with "going after" big bankers or whoever when they commit crimes, but performatively going after an "enemy" class -- no matter who it is -- untethered by normal rule of law constraints strikes me as bad both morally and also conducive to a political environment that ultimately helps the right).

So once again, I'm at a bit of a loss here. But if we're relying on a natural popular revulsion to politicized sham prosecutions by the Trump administration, I'm not sure we're going to get it. We are going to be entering a very, very dark time.

Be Careful If Anyone Symbolizes You

Chesa Boudin, San Francisco's reform-minded chief prosecutor, was recalled by a wide margin on Tuesday. The media has been quick to hail it as a huge repudiation of the progressive approach to policing and prosecution. Those in the know, know it's hardly that simple. Boudin's position was precarious from the start, and the structure of a recall disadvantaged him greatly. Other progressive prosecutor sorts had great success in contests across California. San Francisco isn't even the largest population unit in its region. Boudin was unfairly blamed for an "increase" in crime that wasn't actually even real and for failures of policy around homelessness that were not in his portfolio.

These are fair points, and I think the accurate political commentator should take note of them. That said, I can't quite follow the notion that it is unfair of the media to treat this as a symbolic repudiation. After all, Boudin's victory was a symbolic victory. He got attention in a way that Contra Costa County's lead attorney never will. Certainly, the cheerleaders for a new approach to public safety had no interest on tamping down the meaning of Boudin's symbolism when he was winning -- "accuracy" be damned. So they can hardly complain when that symbolic weight also attaches to his defeat. That's the risk of propping up symbols. Symbolic victories become symbolic targets. It's the way of the political world.

For my part, just like with the last San Francisco recall my lukewarm take is that any take that promises a tidal change is probably wrong. The ideology behind progressive prosecution is not a slumbering giant of electoral politics, thirsted after by a silent majority crushed under the jackboot of the state. Many of the communities that are supposedly most victimized by overpolicing were the ones that turned against Boudin most sharply in the recall. Yet it was also absurd to ever imagine that the ideology behind progressive prosecution was ever going to finally and decisively sweep the field in one masterstroke. Like all political movements, its progress will be slow, incremental, prone to reversal, and prone to adjustment and compromise. It won't look the same at the end as it did at the start, and it almost certainly won't have in its victories the pristine purity its activist core imagined of it when they first started organizing. That's okay. That's the way it works. That's the way it always works. Win some, lose some. Push the ball forward more than you get pushed back. The Boudin recall is a datapoint -- but it's only one.

The New Orleans DA Office is Out of Control

The other day, I read an article about an (apparently long-standing, but about to be discontinued) practice by the New Orleans District Attorneys office of sending out fake "subpoena" notifications to potential witnesses. The notice says "A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE,” but this is simply a falsehood. And it comes without any judicial or official sanction. Basically, it's a fraud. It's designed to mislead potential witnesses into believing they must talk to the DA's office, when they in fact do not have to.

So that's bad. But then today I read another article about a prosecution team that has been repeatedly charging its counterpart public defenders with trumped-up criminal allegations (none of them have stuck). Everything from contempt to impersonating a prosecutor to kidnapping(!). Some of the names sounded familiar, and, lo and behold, its the same office! The same DA team that's sending out fake subpoenas to witnesses is also leveling bogus criminal charges against public defenders. It's beyond parody.

This DA and his team seem completely out of control. Any one of these behaviors, on their own, would be shocking in its abuse of prosecutorial power. Together, it represents a pattern of thuggish intimidation that stands way outside of what should be acceptable in a system ruled by law.

Prosecutors and Prostitots

Some scary stuff happened in the Denver area recently:

Residents were alarmed last summer by a rash of thefts, trespasses and burglaries in Stonegate, a neighborhood in Douglas County.

Fear turned to panic in July after an intruder reportedly climbed into a second- story window and groped an 8-year-old girl in her bed.

A sicko was on the loose and pressure was on to catch him.

And they got a suspect:

A week later, Sheriff David Weaver announced that his office had made an arrest.

What Weaver didn't say is that the suspect, Tyler Sanchez, a thin 19-year-old redhead, looks nothing like the 40ish, stockier, brown-haired intruder described by the victim.

What the sheriff left out is that Sanchez has serious cognitive delays.

What the news release failed to mention was that investigators' only evidence against him is a short statement that seems to repeat what Sanchez was told about the crime during 17 hours of interrogation by detectives who didn't seem to catch that he's mentally disabled and hearing impaired.

Like responsible investigators, they decided to run a DNA test. It didn't match. So prosecutors were left with two theories:

1) A bare bones confession by a mentally disabled 19-year old who looks nothing like witness reports maybe isn't reliable, and they've got the wrong man, or

2) Have you seen the clothes young girls are wearing these days?

District Attorney Carol Chambers' office should have dropped the case when the state released its DNA report in November. Instead, the 18th Judicial District official keeps pressing charges because she says the results don't prove anything.

"With the low-cut jeans that girls wear, she could have picked up anyone's DNA off any surface her panties touched while they may have been riding up above her pants. I hate those low-cut pants," Chambers said Friday, swear to God.

"Depending on how long she had been wearing those panties and where, they could have rubbed up against the back of her chair at school, a restaurant, the couch at home that someone else had been sitting on, a bus seat, someone's toilet seat if she did not pull them down far enough — there are many ways to get unknown DNA on clothing. Another kid could have snapped the elastic on her underwear — kids do that sort of thing."

You have to admit: the latter is way less embarrassing for the prosecutor cooler.

Via the Agitator.

Prosecutor Speaks in the Troy Davis Case

Former federal judge, now law professor Paul Cassell links to the prosecutor's account of what happened in the Troy Davis case. You may know about his case: After being convicted of murdering a police officer, Davis has been pursuing a new trial ever since seven of nine non-police witnesses against him recanted their testimony, basically saying they were coerced into giving their statements by the cops.

There's a lot of hand waving going on here, but basically the reliability of the recantations comes down to whether or not you think it is more likely that witnesses are subject to intimidation by police investigators, or by groups like Amnesty International investigating potential wrongful convictions. My default stance is to be suspicious of unrecorded police questioning in Black on White crimes in Georgia. The affadavits Amnesty provides are compelling to me because of their consistency -- they all give very similar accounts of police harassment, and come back to a consistent theme that the police wouldn't let the witnesses leave until they said what the police wanted to hear.

For his part, the prosecutor, Spencer Lawton, actually uses the 80% recantation rate as evidence in favor of collusion and manipulation. He raises the specter of anti-death penalty forces coming in, long after the event in question, and basically guilting the witnesses with the specter that their testimony may be putting an innocent man in prison. Is it possible you don't remember clearly? Are you sure that Davis is the shooter?

The problem with this defense is that it doesn't match up with the affidavits Amnesty actually obtained. They're not, by and large, based off fuzzy memories or unclear recollection of the events in question. They, nearly without exception, are premised off police intimidation to get certain testimony -- something unlikely to be that fuzzy and not premised off any difficulty in remembering the events of the murder. Lawton notes that the witnesses were questioned about this at trial and did not say anything about intimidation. But at trial the police threats (if they so happened) were likely to be fresh in the witnesses mind, and going against one's sworn statement raises the prospect of a perjury investigation (something which, if I were a sleazy cop, would be sure to remind my cowed witnesses of after they signed the document).

The other part of Lawton's argument, which is a bit more subtextual, is that the affidavits were acquired by groups with an anti-law and order agenda in general, who are motivated simply by blanket opposition to the death penalty. The problem is that Amnesty appears to have worked quite hard to acquire statements implicating another man in the crime. Opposition to the death penalty hardly seems consistent with trying to get another person convicted of capital murder (although they could hope that the new suspect would not get a death sentence).

All of this really just points back to my current, long-standing intuition about the death penalty. Our system is so badly broken that there is really no way that it can imposed in a fair and just manner, where we can be sufficiently assured of the defendant's guilt. When, for example, there isn't that essential trust that the police won't try and coerce testimony -- particularly when the victim was another officer -- it is simply impossible to evaluate the reliability of trial testimony in the face of future recantations. In such an environment, the death penalty cannot be justly put into practice.

Good Cop

Radley Balko points out the inspiring case of Dallas County Prosecutor Craig Watkins. Inheriting a department with a convict-at-all-costs mentality, Watkins aggressively revamped procedures to protect the rights of innocent people and exonerate those wrongfully convicted. Dallas County has the highest exoneration rate in the country now, because Watkins aggressively pursues exoneration claims, where too many attorney's offices actively try and suppress them.

Justice isn't served merely by throwing people in jail. Justice is served by throwing the right people in jail. Watkins remembers that, and he is a force for good in the state of Texas.