"the nation's only libertarian, civil liberties, public interest law firm," mentioned in this story. The involvement of specialist lawyers with knowledge of civil forfeiture law probably helped the motel owner win the ruling reported in this news story.
- a bagel shop owner in Seattle wanted the right to hold a sign to promote his business
- El Paso, TX passed a law that food trucks could not setup within a block of a traditional restaurant
- Florida passed a law requiring interior decorators to get a license
- Washington DC passed a law requiring that African hair braiders get a cosmetology license (which requires beauty school degree) yet beauty schools do not teach traditional African hair braiding (http://www.npr.org/blogs/money/2012/06/21/154826233/why-its-...)
- Dallas, Texas passed a law saying businesses couldn't display signs in their windows due to safety (of course, nothing requires them to have ANY windows)
> - New London, CT used eminent domain to take an entire neighborhood of private homes to give the land to Phizer because Phizer would generate more tax revenue.
...and after bulldozing the neighborhood, lost their funding, avandoned the project, and turned the neighborhood into a literal dump.
Wow! What a grossly offensive thing for the courts to support, regardless of the fact the outcome was a net negative.
Thanks for posting that. I had not heard of that particular case.
I'm not against theories, but if race filtering was their goal, they seemed to have failed. Moreso when you consider the cost of the effort... so I'm not going for it.
And urban blacks (and many urban people, period) are often poor. A business might want cheap land to create a suburban work area. Prices go up, poor people move out. It doesn't have to be racial.
When I read things like this, I'm amazed libertarians have such a social stigma against them. Austrian economics is debatable in very large populations with entrenched governments but these social issues are so obviously wrong and it seems (civil) libertarians are the only ones highly vocal against them... yet they would still be considered radical in most contexts.
If I had to guess, it's because they seem to value their economic goals/principles over their social goals/principles, and the economic goals are not always the best of ideas.
I think that's a misreading of their principles then. In very large populations with entrenched gov'ts, the individual suffers the most. The smallest minority is the individual, and individual liberties be they economic, social, political, civil.. all revolve around freedom and protection of individual rights. I think theirs are the best of ideas in all areas, and protection of property rights necessarily involves the economic as well as the social.
I won't disagree that they say both are equally important, but I hear libertarians talking about economic issues much more than I hear them talk about social issues.
And on top of that, they seem to caucus with the republicans much more so than the democrats despite the republicans' horrible (from a libertarian perspective, at least) stances on social issues like gay marriage, abortion, and marijuana. Can you think of any libertarians caucusing with democrats? I can think of at least the Pauls caucusing with the republicans.
Aside from gay marriage, I'd say as an individual, economic policies that are very non-libertarian effect me much more than marijuana laws and abortion, which WILL NOT be overturned and is NOT a primary issue for most practical Republican candidates because there are much bigger fish to fry right now. My point is OF COURSE they caucus with the Republicans because economic, property rights are fundamental and effect people much more drastically and completely than do laws against smoking pot, let's be honest. As far as the gay marriage issue, my personal opinion is opposition is waning or at least it's simply not viewed as an important focal point for those that are more concerned with debt, spending, economic growth/freedom, etc.
If liberty was the point, they'd not be libertarians by US standards. Right wing US style libertarianism is "liberty for all, except when it threatens my ability to monopolize property, when I prefer liberty only for me".
Maximizing liberty for all necessarily requires severe limitations on government enforcement of private property, for example.
This isn't true. People who call themselves 'libertarians' seem quite happy to vote for people who are extremely socially conservative. The economics is what they care about (and perhaps pot). Obviously the GOP is very socially conservative, but so are factions of the Libertarian Party. In 2008 the Libertarian Party nominee for President of the United States was Bob Barr:
>During his tenure, Barr was regarded as one of the most conservative members of Congress. In 2002, he was described by Bill Shipp in an OnlineAthens.com article as "the idol of the gun-toting, abortion-fighting, IRS-hating hard right wing of American politics"
>He voted for the first USA PATRIOT Act
>Barr took a lead in legislative debate concerning same-sex marriage. He authored and sponsored the Defense of Marriage Act, a law enacted in 1996 which states that only marriages that are between a man and a woman can be federally recognized, and individual states may choose not to recognize a same-sex marriage performed in another state
>Barr was originally a strong supporter of the War on Drugs, reflecting his previous experience as an Anti-Drug Coordinator for the United States Department of Justice. While in Congress, he was a member of the Speaker's Task Force for a Drug-Free America.
>Barr advocated complete federal prohibition of medical marijuana. In 1998, he successfully blocked implementation of Initiative 59 — the "Legalization of Marijuana for Medical Treatment Initiative of 1998" — which would have legalized medical marijuana in Washington, D.C. The "Barr Amendment" to the 1999 Omnibus spending bill not only blocked implementation of Initiative 59, but also prohibited the vote tally from even being released. Nearly a year passed before a lawsuit filed by the American Civil Liberties Union eventually revealed the initiative had received 69 percent of the vote. In response to the judge's ruling, Barr simply attached another "Barr Amendment" to the 2000 Omnibus spending bill that overturned Initiative 59 outright. The Barr Amendment also prohibited future laws that would "decrease the penalties for marijuana or other Schedule I drugs" in Washington, D.C. This preemptively blocked future attempts by Marijuana Policy Project (MPP) to reform marijuana laws in DC via the initiative process. In March 2002, U.S. District Judge Emmet Sullivan struck down this portion of the Barr Amendment as being an unconstitutional restriction on free speech. Barr's response to the ruling was defiant:
>Clearly, the court today has ignored the constitutional right and responsibility of Congress to pass laws protecting citizens from dangerous and addictive narcotics, and the right of Congress to exert legislative control over the District of Columbia as the nation's capital. —Bob Barr, March 28, 2002
You're right-- I am libertarian and will vote for the candidate that's stronger on economic issues even if they're a social conservative.
Here's my reasoning:
Social issues tend toward liberalization on their own. Except in a few cases, social issues are part of the culture war, and culture changes generationally.
Economic rights are different. They need protection because once lost, they never come back. Once you have the precendent of government intervention, that helps justify the next intervention. Once you use the Commerce Clause to regulate marijuana that is grown and consumed w/o crossing state lines, it's open season on all forms of regulation.
So my calculation is that socially retarded candidates will do the least harm.
The Libertarian party has had some embarrassingly bad presidential candidates. My assumption, as a registered Libertarian, is that they know they're not going to win and select candidates based on who will get the most votes from non-party members while not pissing off party members too much.
I personally find this extremely disingenuous considering one of the LP's slogans is "The Party of Principle."
Looks like Barr did complete 180 degree reversal later and became an opponent of his own proposals. One can only hope he genuinely saw the light and realized what he was doing was wrong.
One can be in favour of liberty, but prefer fiat money (privately issued, if you will) to Gold. And disputing the Austrian school's theories about the business cycle doesn't turn you into a non-libertarian, either.
I think it is the libertarian foreign policy that is more of a roadblock to the mainstream. Most Americans, left and right support some level of foreign intervention whether it is active military intervention, bases abroad, humanitarian aid, mutual defense treaties, etc... Austrian economics is dry, but pretty plausible and appealing. Isolationism is a tougher sell.
Fair enough, there is a difference between non-intervention and isolationism. However, whatever you call it, that position is much more divergent from mainstream opinions than libertarian economics.
Maybe it isn't isolationism, but it isn't a trickery to call it such. If you offered the text of the Libertarian platform on international affairs, many was say it describes an isolationist policy, without intending trickery.
Also, whatever the position libertarian take today, there have been strong isolationists who have been key members of the movement, like Murray Rothbard who said, "The libertarian position, generally, is minimize State power as much as possible, down to zero, and isolationism is the full expression in foreign affairs of the domestic objective of whittling down State power."
http://www.lp.org/platform
--
American foreign policy should seek an America at peace with the world. Our foreign policy should emphasize defense against attack from abroad and enhance the likelihood of peace by avoiding foreign entanglements. We would end the current U.S. government policy of foreign intervention, including military and economic aid.
This is pure evil, and morally worse in my opinion than going after Swartz. At least he almost certainly actually violated a law. Trying to fill government coffers by seizing the assets of innocent bystanders is ridiculous.
Based on the information in the article, I cannot see how they can be just to go after him. With that logic they could go after owners of apartment buildings or even arenas (music festivals/shows tend to have people doing drugs there).
Hypothetically, how would you feel if a business owner knowingly profited off of illicit activity while keeping jusssst enough distance between himself and the criminal to say "I didn't see nuthin!"?
THAT is the argument here. Not saying it's totally righteous, but that the theory isn't preposterous and litigating the case isn't absurd.
In this case I think the real failure of the gov't was not taking more aggressive steps at a paper trail. Giving this guy notice, so to speak.
"Hypothetically, how would you feel if a business owner knowingly profited off of illicit activity while keeping jusssst enough distance between himself and the criminal to say "I didn't see nuthin!"?"
The point of a system of laws is to draw the line somewhere. If he is just far enough from the criminal to claim that he cannot stop the crime from happening on his property, then he should not be prosecuted.
"the theory isn't preposterous and litigating the case isn't absurd"
The theory is not preposterous if we are willing to accept tyranny and oppression in this country. Keep in mind that the government was attempting to take this man's property, sell it, and recycle the proceeds into the budget of the very police force that targeted him. That sort of power has led to self funded police -- police forces who budgets consist entirely of proceeds from the sales of seized property and assets.
It should scream corruption to anyone who is used to living in a free society. That most Americans do not see just how corrupt that system is is an indication that boiling the frog slowly is a viable strategy to establish fascism (but did we really need to be told that?).
There is no shortage of laws against criminal conspiracy and contributing acts which are applicable for the scenario you describe... but they charge the property instead of the person because the property doesn't have civil rights and so the states' burden is much lower.
Civil forfeiture is outright evil. Wink and nod arms-length crime can be handled without it.
Where he the owner of an expensive hotel, rather than a cheap motel, serving primarily wealthy people, rather than poor people, in which rockstars and high-end escorts occasionally OD'd, rather than crack-whores and nobodies, we would not even dream of considering him responsible or even seizing his property.
That we are even having the discussion and considering his potential 'guilt' is a problem.
If one rockstar checks-in to your hotel and OD's a reasonable person wouldn't assume that all rockstars are dangerous.
But when you have obvious prostitution rings running out of your motel? When you have a person renting a room to a dealer who was arrested in that same motel for dealing?
This guy is running a slum, he's not some poor "little man" who deserves your pity. He has a multi million dollar net worth.
What do you expect such a hotel owner to do? Strip search patrons for drugs and install cameras in their rooms to ensure that no money is exchanged for sex? Give background checks and risk discrimination lawsuits by refusing to service people who look sketchy to you?
Read the judges decision. The man did everything he could reasonably be expected to do. His motel did not spawn lowlifes, it was merely cheap enough for lowlifes to afford. Society spawned those lowlifes and the local government is responsible for that, not him.
I'm not declaring the guy guilty. I'm saying that your class-warfare based dismissal is silly.
Really, if you've spent much time in a city, you've seen street-level drug trafficking and prostitution. It's not hard to spot. But again, you take this to the absurd. This is not about rockstars ODing at the St. Regis, and it's not about strip searching people before you give them a room. This is about a gov't lawsuit that contended that the motel owner, like anybody else paying attention, could spot this illicit activity and not only failed to ask these guests to leave but also continued renting them rooms! That his property was a blight on the neighborhood. That he had been negligent. The DOJ obviously didn't prove those points to a preponderance of evidence, but I think your reaction here is wanting.
I'm not one for internet debates, so go ahead and have the last word. I chimed in because if somebody just reads the lede in a case like this it sounds awful and unamerican: Private property can be taken for crimes he didn't himself commit? What! But IMO (and in current civil forfeiture law and judicial precedent) there is sound reasoning behind cases like this. Businessmen have had a legal obligation to maintain order and actively cooperate with law enforcement going back through 300 years of common law.
CF laws need reform, but I'm of the opinion that this case is NOT the poster child for that cause that you're making it out to be.
> the Government has identified only a limited number of isolated qualifying drug-related incidents spread out over the course of more than a decade, none of which involve the Motel owner or employees
> Based on the evidence presented and my observation of the witnesses
during trial, I find that Mr. Caswell is appropriately concerned with the events that take place at the Motel and that he recognizes that it is in his interest and in the interest of his family to operate as safe an enterprise as possible.
> Motel employees, including maids and desk clerks, have called the police
on a number of occasions to report suspicious activity.
> Mr. Caswell has called the police on a number of occasions to report
suspicious activity.
You say:
"The DOJ obviously didn't prove those points to a preponderance of evidence"
But the DOJ did not merely fail to prove anything. They were completely full of shit, and they went after this guy because they thought they could get away with it. It is as clear as daylight if you actually read the documents and not a bunch of pro-government rants on hacker news.
You have been arguing this line in this and other threads quite vehemently and yet I can't escape the impression that you haven't even done the most basic research on the case under discussion. I'm confused. You're obviously quite clever and it appears to me that you have no dog in this race. Why not be more objective?
If the government thought he did something illegal, why didn't they charge him with a crime? Aiding and abetting a crime is a crime in and of itself. I can't find a logical reason other than they didn't believe there was any proof there. If they don't believe he was doing committing a crime, why on earth should his property be subject to seizure? The only ones I can see involve corruption.
But the thing that bugs me about this case is that the local police didn't do anything at all to warn Caswell or work with him to reduce crime at his business. The city police officers are, after all, his peers and neighbors and you would think they would have acted with better intentions and morals.
Militarization of police forces and the minimization of community relationships. Chalk it up to the war on drugs. Related: stop-and-frisks in NYC inherently make law-abiding members of the community afraid to go to the police for help. Between the fear of being treated like a criminal when you're not, and the fear of being strung up for being a 'rat,' law abiding citizens unfairly targeted by such things are caught between a crack rock and a hard time place.
Not saying it's right, or moral. It's just a symptom of the underlying disease of treating drug abuse as a criminal issue instead of a medical issue.
The judge very clearly disagreed with you about it being preposterous, on the basis of a total lack of evidence to support this assertion, while the hotel owner on the other hand was able to demonstrate that he and his staff have alerted police to suspicions of crime multiple times and generally been cooperative.
There are special people there that their job is to find such properties so that government can seize them and get some cash from it: http://news.ycombinator.com/item?id=5090520
Hard to believe this is happening in America, but here you go, yet another gift that keeps on giving from the War on Drugs, most insane of all American wars.
Great to see Ortiz's office crash and burn, but innocent taxpayers are also losers here. They now have to refund the defendant's legal bills - around $600k in total.
You don't understand why taxpayers are upset that government officials theoretically working FOR them can make idiotic decisions, and then get off consequence-free, and all the damages that they created are paid for by everyone but themselves?
There are so many other instances where this logic is usually not brought up, but it can apply far more readily. It's as if making this man destitute and the government winning is the better thing. It's the same logic of people implying people who get an non-guilty verdict are usually secret guilty.
It is the logic of being angry that someone (a prosecutor) breaks the law and they don't pay, the taxpayer do. No one is saying the prosecutor should have won.
It is difficult because I have heard this line of thought many times before when the person saying it did think that the person awarded money should not have won.
I lived in a school district adjacent to the Dover Area School District in Pennsylvania in 2004/2005 (http://en.wikipedia.org/wiki/Kitzmiller_v._Dover_Area_School...) and I cannot count the number of times I heard people (people I knew to be ardent creationists that supported the defense) complaining about the award because the money was just coming from tax payers.
The message, as they expressed it, was not that we should be angry at the school-board for causing such a waste of money, but that we should be angry at the Plantiffs and the ACLU for 'wasting' that money. (Yeah, that is a crazy position. That was par for the course though.)
Why in the fuck don't a group of qualified investors and political hackers quietly mask their purpose to form a top-tier PAC to fuck with the system for the interests of private citizens? Fight fire with fire, because campaign finance reform is not going to happen in the US.
Yeah, I also don't understand what I am supposed to do with this "perspective".
Does it mean that I am supposed to be angry at the officials for wasting my money? I am already angry at them for much better reasons. Am I supposed to be displeased with such an award? That cost, even though it is (barely) coming out of my wallet is justified.
I find that Mr. Caswell took all reasonable steps to prevent drug crime on the Property.
In any event, property owners are not obligated to become “substitute police forces.”
It sounds like no matter what else happened, the government chose the wrong way to proceed against this property; they jumped the gun trying to do an asset forfeiture when the proper response was to establish a long track record of having local police request specific interventions to curb crime.
Since the police weren't able to present any evidence that they had requested those interventions, there was no way for the government to prove that the owner of the motel was operating negligently (though: let's be honest about that; the place is a blighted flophouse).
The outcome here seems like the right one. I'm just a lot less outraged that this process got set in motion in the first place; some intervention was clearly needed. Just not the nuclear one.
The judge's opinion certainly makes the man sound like a victim of persecution to me. From it:
The evidence was consistent that no law enforcement personnel ever attempted to communicate with Mr. Caswell about any potential safety measures which could have been taken at the Motel Caswell to reduce drug crime at the Property. Moreover, the numerous law enforcement witnesses offered very few suggestions even at trial which are not already in use at the Motel.
Also from the opinion:
I reject the Government’s argument that Mr. Caswell did nothing to safeguard the Property. Rather, there was a clerk at the front desk 24 hours a day for security purposes. There also was a camera in the main lobby and a sign warning guests that suspicious behavior would be reported during the entire period in question. Moreover, the Property was well-lit both in the front and back, a security camera was added to the back parking lot, and guests were always required to fill out registration cards, a procedure that was tightened after the police suggested copying drivers’ licenses. In addition, Mr. Caswell and the Motel staff reported suspicious behavior to the police, cooperated fully with the police, gave the police access to rooms and registration cards, and generally maintained good relationships with law enforcement. Police were free to and did drive through the premises regularly on patrol.
In your previous comments you wrote: "The owners of the hotel were warned repeatedly by local law enforcement and an intervention of local hotel owners; specific measures were suggested to minimize the problems at this place and weren't taken". But the judge's opinion says pretty much the exact opposite.
I respect your long track record of commenting constructively on HN. But as far as this specific case goes, I think readers would do well to be skeptical of your confident-sounding pronouncements.
I do not pity the man who is forced to reconcile the apparent belief that the government is always right with a government official claiming that the government was wrong.
No pity required— that man doesn't exist. If people actually thought that way they'd be disabused of the notion after the first few counterexamples they encounter.
Just-world, like other stereotyping biases is so insidious because the mistaken belief starts with the truth: "The government is usually right, so it's (very likely) right in this case (and the rightness justifies the outcome)". You can, perhaps, debate the "usually" but that misses the point: In terms of _justice_ and human rights it is improper and immoral to reason using coarse prior probabilities: You should be no more likely to convict a black person because statistically black people commit more crimes, people should be judged on their own merits. The underlying fallacy in many instance of just-world is the mistaken belief the its proper to apply your belief that the world is generally just to a specific case of potential injustice.
So there is no dissonance for most— they think "well, I always believed the government was only usually right. No one is perfect, and see— the system worked!".
It's a minuscule cost to the system that's well worth it to provide justice to this man. It's a cost that is the responsibility of the citizens of the United States, on whose behalf the government acts. The cost, per citizen, of this settlement is $0.002. I'm sorry to hear about your loss, I hope you'll get over your pain soon.
By contrast, the wars in Iraq and Afghanistan since 2001 have cost $1,416 billion, or $4,570 per man woman and child in the country. A hair over a dollar per day (think about that when you're paying for your Starbucks).
The responsibility for the acts resulting in this settlement lies squarely with Carmen Ortiz and her office. If you don't like to see your government wasting dollars on illegal, impudent prosecutions, while, say, letting major financial fraud go unprosecuted, well, say something about it.
Can anyone clarify why is he expecting to be paid $600K for his legal fees? I thought that in US the party which lost the case is not obligated to cover the legal fees of the winner. Which is one of the things that makes patent trolls thrive.
That can be decided on a case by case basis. The judge has wide discretion on dictating such. Usually in cases where the judge determines the case is particularly frivolous or without merit.
If the case is regarded to be without merit, and the burden was particularly onerous (which it sounds like it was in this case), the judge can force the plaintiff to pay.
Also one of the things that makes sociopathic self-serving prosecutors thrive, apparently.
If it's a rare exception that he doesn't have to pay that $600k, what does that tell you about the cost of entry to this already asymmetric game?
You cannot win these battles. He either loses his property, or "wins" and loses his $600k.
Carmen Ortiz and Stephen Heymann are incentivized to find a target and steamroll them at all costs. This incentive is entirely incompatible with seeking justice.
Does anybody else find the photo of the motel owner a little jarring? It's something about the lens distortion, I think, that makes me see him as a cardboard stand-up when I just glance at the picture.
I think it is due to a combination of using a wide-angle lens to fit in the entirety of the motel front plus the flash/lighting seems to be hitting him more from the side (our right, his left) than straight on (maybe bounced off a reflector off to the side to avoid harsh facial shadows). Combination is a weird forced perspective effect that makes him look flat.
You're definitely correct about the flash, I think the second reason is that the aspect ratio has been altered. The 350x290 image is displayed at 300x275.
So my question… with all these posts we're seeing and complains, is there an official investigation that we know of? I know there's a petition and it seems to have passed but I was curious as to what was going on.
Police find a meth lab in the motel. Some people die of drugs overdoses in the motel. Police claim to arrest drug dealers, drug users, prostitutes etc in and near the motel, and claim the owner not only does nothing to prevent these criminals but actively encourages the criminals.
Eventually they decide to seize the property (somehow) to prevent further crime.
Motel owner claims that crime, while high, is similar to other motels in the area. Owner claims that he's followed police advice and is doing his best to stop criminals using his property for crime.
A process with a potential for abuse that happens a lot in the US. Getting attention here, and now, because of the involvement of Ortiz.
The government appears to be able under current forfeiture law, to sue property that was involved in a crime. Such as a motel that was used to make meth. For example "US vs. Eight Thousand Eight Hundred and Fifty Dollars" http://www.law.cornell.edu/supremecourt/text/461/555
It can't, and it doesn't have civil rights (or other capabilities) to defend itself, which is why the government likes to sue it—it's an easy win for them.
It wouldn't matter, prosecutors have absolute immunity, instead of the qualified immunity a government official normally gets while doing their job.
If you want to start to change the way they act, start there.
Edit: Since a lot of folks seem to not be familiar with terminology, things like "absolute immunity" or "qualified immunity" refer to civil liability, not criminal. At least in the US, the main method of policing government civil rights violations is through civil lawsuits for damages, not through officials being arrested.
(This of course, is also a larger issue, but a more difficult one :P)
A brief bit of searching indicates that prosecutors do indeed have absolute immunity from civil liability for their official actions during a trial (see Imbler v. Pachtman).
That's probably mostly true, but it's worth pointing out that some prosecutors (if not federal prosecutors, to be fair) are sometimes held accountable for their actions. Mike Nifong[1] the infamous "Duke Lacrosse"[2] prosecutor, was disbarred, removed from office as DA, charged with various ethics violations and was even held in contempt of court at one point, and spent one day in jail (and paid a $500 fine) as a result.
Unfortunately it's all too rare for prosecutors to suffer any consequences for what they do, and it takes a really egregious case of misconduct like this (as well as a group of well-heeled and well connected defendants) to prompt such a thing.
A prosecutor's criminal conduct in the context of prosecuting a case would never be prosecuted by other prosecutors. It would set a bad "precedent". If it were shockingly egregious criminal conduct while prosecuting a universally beloved public figure (like Mr. Rogers or Joe Montana or similar), you might see criminal charges in relation to impeachment proceedings undertaken by a legislature, but although that is possible it isn't likely.
Now if a prosecutor did something horrible to children or copyrighted materials or something he might be prosecuted criminally for that, only if it had nothing to do with his work.
Yes.
I posted the main case that starts this line in the comment to Chuck, but also see Rehberg v. Paulk, 132 S. Ct. 1497 (2012).
It's worse than you think.
In Rehberg, the accusation was the chief investigator for the DA's office simply presented made up testimony in front of the grand jury, knowing it was false, and the prosecutor knew it was false as well when questioning him/presenting it.
They did this 3 times, leading to indictments against folks that were, thankfully, later dismissed by judges.
It was also alleged that they both had conspired, pre-indictment, to make up and present this false testimony to the grand jury.
Holding: Both are entitled to absolute immunity.
This particular case seems more about grand juries, until you realize what was alleged and who was testifying.
I don't think it's particularly crazy. People focus on the cases where prosecutorial misconduct is protected by immunity, but ignore all the meritless suits and appeals prisoners file against anybody and everybody because they're in prison and have nothing else to do.
The justice system is a system. Designing systems is about making trade offs (something that should be obvious to an engineer). Any system of justice is going to put innocent people in jail, just like every drug is going to kill some people who would have otherwise survived. You have to deal with that fact the best you can to construct a workable system.
While true, it's only the specific question answered in that case because they already had immunity for things like perjury during trial itself through Briscoe v. Lahue (which applies to all witnesses), and other cases/situations.
Essentially, the rest of the conduct in Rehberg was already absolutely immune, this was the only question they could raise in a cert petition that the Supreme Court had a chance of caring enough to take.
I'm aware of the goal of justice systems, it was drilled into my head by Prof. Turley during law school. It's very hard to see how extending absolute immunity to prosecutors in most cases serves the system. It certainly doesn't cut down on nuisance lawsuits, since those get filed anyway by prisoners/etc. In any case, qualified immunity would still serve them in cases where they make bad decisions in good faith.
I wasn't implying you didn't understand the goals of the justice system, but as of late it seems that people forget we're looking at a piece of a larger system and ignore the trade-offs involved.
We do have multiple such methods. Just some of the procedural protections that exist for the accused:
1) Evidence can be suppressed for numerous reasons due to police misconduct or even honest mistakes.
2) Prosecutors have an ethical obligation not to bring bad cases. They can be disbarred if they do (e.g. like the prosecutor in the Duke basketball players case).
3) Prosecutors must get a grand jury indictment to bring a case.
4) The defense can motion to the judge to exclude evidence that would unfairly prejudice the defendant.
5) The jury must convict.
6) The defendant can appeal to the Court of Appeals (in the federal system) or the equivalent.
7) The defendant can appeal to the Supreme Court or the equivalent.
8) After losing all appeals, the defendant can file one or more habeas petitions to collaterally attack the judgment.
9) The defendant can petition to set aside the judgment based on new evidence that would have changed the jury's verdict.
I'm not well-versed in criminal law--there are a raft of other ways to attack convictions. And the convicted do use these avenues. A substantial fraction of the federal dockets are habeas petitions that have no merit but must be heard as part of the process of ensuring justice.
Before you add yet another "protection" by allowing the convicted to sue prosecutors, you have to think about what it would do to the system when all the actually guilty people started filing those suits. Does it really add to "justice" more than it burdens an already strained system?
Remember: prosecutorial immunity does not keep people in prison wrongly--it keeps those people from subsequently suing prosecutors for damages. Moreover, where do you set the bar for liability? If you set the bar too low, e.g. allowing suit when you simply think the prosecutor was too harsh (as in Swartz's case), then you basically make prosecution impossible. If you set the bar very high, you end up actually punishing a very small number of people (e.g. prosecutors who manufacture evidence to get a conviction), but you still create a huge number of lawsuits from those that are justly convicted.
I don't necessarily disagree with you, but imagine we gave (2) more teeth and a greater frequency of enforcement. You don't have to put the ability to initiate such proceedings in the hands of defendants so long as the people who can do it are fully independent and properly funded. Which is not a solved problem, granted, but it could conceivably be worth investigating solutions to it.
And am I the only one who found it alarming the extent to which the plea bargaining system eviscerates almost the entirety of your list? If someone innocent pleads guilty against the expense of a trial or the risk of an order of magnitude or more higher penalties, how many of those safeguards disappear? Suppressing evidence becomes irrelevant, no jury, no appeals, what does that leave? The Grand Jury that would indict a ham sandwich?
I guess my impression was that you can not go to far down that road starting with only $60,000 in the bank unless you have a good lawyer take you on for free which is uncommon.
Meaning these options are not realistically open to large percentage of the population.
That much money would hire a competent criminal defense solo-practitioner for enough hours to work through many or most of those options. And for those who can't afford it, at the federal level public defenders are similarly credentialed as prosecutors and are by law paid the same (for obvious reasons). And there is always pro se representation with the help of legal aid clinics and prison law libraries. Prisoners with no money file huge numbers of appeals and petitions every year using these resources.
Now, Aaron Swartz did blow through a ton of money defending himself. But he also hired an entire team from one of the top white collar firms in the country. Moreover, his case was complex. He couldn't very well argue "the DNA says someone else did it!" He was a political activist engaging in civil disobedience. He was stuck arguing that while he did what the prosecution claims he did, what he did shouldn't be a crime. You can't really extrapolate from his case to argue that it's impossible to take advantage of the various procedural protections because of the expense of doing so.
The State has had incredibly broad latitude during Grand Jury proceedings since well before these cases. They've also had significantly less freedom to engage in shenanigans in other circumstances, AIUI. (I'll defer to someone with specific knowledge to the contrary, of course. I'm a technologist, not a lawyer.)
While bad, it isn't as bad as it sounds, because it was "only" in front of the grand jury for an indictment. It would have been even worse if they had done it in the actual criminal trial.
I think you are saying, they still would be immune if they did that in the criminal trial?
Regarding the Rehberg v. Paulk case - is that the end of the story? Did the chief investigator or prosecutor suffer any consequences for their actions? How could a prosecutor do that and not get disbarred?
Ken Hodges actually even ran for Attorney General of Georgia after doing this, and thankfully lost. Neither Hodges nor Burke were disbarred, nor is their any indication of any bar action at all. The investigator, Paulk, remains today as the chief investigator of the Dougherty County D.A.'s office. There is a documentary about much of this case, see www.DoNoHarmDoc.com . I am Charles Rehberg, the defendant in this case, and would be glad to answer any questions. I am at RehbergC at AOL dot com. Ultimately, the Supreme Court ruling in my case opens the door for even more prosecutorial abuse by expanding their immunities.
Ken Hodges is now a partner in a law firm (Ashe, Rafuse & Hill, LLP). I can find nothing that says he was disciplined:
http://en.wikipedia.org/wiki/Ken_Hodges
I can't find out all the details of what happened to James Paulk, but if he was charged, it doesn't show up in the public records I have access to.
FWIW: Not all prosecutors are like this. I clerked for a former state's attorney who was a judge on the maryland court of special appeals. I have not the slightest doubt that he would have arrested, charged, and prosecuted all three of these men if something like this ever happened in his state.
It's wikipedia and this is HN. There have to be a few wiki admins around here who can defend it from reverts and procedural nonsense if someone slips in a few well-sourced edits.
Not exactly the same, but in Ohio the only person not from the state with the authority to arrest the county sheriff is the county coroner (how did that come about?).
It makes some sense: the coroner is an elected official (why the hell do we elect coroners?) who has some independence from the sheriff. Other officials who are ostensibly higher level than the sheriff probably depend on his good graces as much as the sheriff does on them.
The coroner and the medical examiner have different functions in most modern jurisdictions.
The coroner is in charge of the legal stuff, the medical examiner is in charge of stuff like determining the actual cause of death. There's a "coroner's jury" in some jurisdictions that hears evidence and decides whether the death was criminal, accidental, natural causes, etc. The medical examiner would (e.g.) determine that the person died from a gunshot wound. The coroner (or coroner's jury) would decide whether a crime was involved (rather than suicide, accident, lawfully shot by the cops or in self-defense by someone else).
It seems strange, but this policy seems pretty pragmatic to me: Here you have two elected county-level officials who often work together and thus are familiar with each-others business, but are not subordinates to one another. Basically peers.
In large groups, revolutionaries -- like the founding fathers:
>He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
>He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance
>He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures
>For Quartering large bodies of armed troops among us:For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States
>For depriving us in many cases, of the benefits of Trial by Jury:
The story writes as "The innkeeper’s complaint follows the suicide of hacker Aaron Swartz" and it is inevitable that average Joe will think that aaronsw hacked people's bank accounts &c.
http://www.ij.org/
"the nation's only libertarian, civil liberties, public interest law firm," mentioned in this story. The involvement of specialist lawyers with knowledge of civil forfeiture law probably helped the motel owner win the ruling reported in this news story.