October 7, 2012

"When a prosecutor loses a criminal case in America, there are no remedies."

"It's gone. It's dead as a doornail. If they try the case badly and they lose, it's double jeopardy — you heard of it? So there are no post-trial motions, it's gone. Why? Because we had a rookie prosecutor, and if he had done a better job... Too bad, it's gone. Can you then go ahead and sue the DA and say, 'Boy you should have put your ace prosecutor on there'?"


Shouting Thomas said...

Don't these types of cases often turn into double jeopardy prosecutions?

First, the state tries the case on criminal grounds.

Then, the Fed moves in with a civil rights indictment.

So, double jeopardy is common in such cases. There has been speculation that George Zimmerman may face such double jeopardy prosecutions.

Ann Althouse said...

@Shouting Yes, there are limits to the right not to be put in double jeopardy, but the linked article is about when crime victims can sue prosecutors for not doing enough to stop the criminal from going free (and able to victimize them).

cubanbob said...

The arrogance of the court is amazing! Why we have to allocate scare resources....blah, blah, blah. So the next time a private sector entity choses on how to save scare resources and something goes wrong....

Now back to case at hand, so the prosecutors screwed the pooch completely. They failed to do the very minimum their jobs required, keep the murderer in jail when they had ample opportunity to do so, fail to extradite him when they should have and the court thinks thats all right.

I Callahan said...

Although I'm a fan of Kozinski, I think he's full of it here.

Prosecutors are not held responsible for what they do wrong on either side, whether they were too zealous and convicted someone who wasn't guilty (Fells Acres), or in this case. I know, they're voted in, but that ain't enough.

I'd like to see prosecutors held responsible for either, as long as it's obvious they were wrong. This case would apply.

C R Krieger said...

I guess I come down on the fact that trying in a state court and failing and then getting a second shot in a federal court is wrong—double j is about not letting the Government abuse the citizens.  What is that rule?  99 guilty go free rather than one innocent, etc, etc.

Regards  —  Cliff

Ann Althouse said...

"I guess I come down on the fact that trying in a state court and failing and then getting a second shot in a federal court is wrong—double j is about not letting the Government abuse the citizens. What is that rule? 99 guilty go free rather than one innocent, etc, etc."

Please read the article. That's not the controversy here.

This is about victims bringing tort actions for damages.

Rob said...

Well, I have two comments from real experience:

1. It is very expensive to extradite defendants. Deciding whether to do it is a real problem, unless you think government has unlimited resources. I have additional news on this front- most prosecutor's offices and police departments don't have all of the toys they have on TV, therefore not everything you might wish would be done on a case is done. Should those prosecutors and police officers all be sued? For losing the case? For the damages caused by subsequent crimes by the criminal because the earlier prosecution was not successful?

2. The real problem here is the death of proximate cause.

Michael K said...

I used to do a lot of expert witness stuff and testified in a number of criminal cases as the treating physician, usually of the victim. The most important factor in the winning side of the case is the quality of the lawyering.

In once case, the defense layer contacted me and wanted me to help him figure out how to defend his client who had shot my patient. It was a love triangle and the husband had found the guy I had operated on in bed with his wife. There was a risk of more serious charges since there had been a lengthy argument before the shot was fired. Anyway, the defense lawyer kept continuing the case until he got the prosecutor he wanted, an affirmative action assistant DA. The DA called me in before the trial, angry at me ! I told him the victim was my patient so I had no sympathy for the shooter. At trial, I was astonished at the incompetence of the prosecutor. Asking silly questions ("Did you go to medical school ?")

To make a long story short, the defense won. It wasn't an egregious case since the shooter found the victim in bed with his wife in his own house. Most assistant DAs in my area are ex-cops who went to law school at night and are pretty competent, but not all. The discrepancy is even greater in civil cases. I've probably testified in about 200 trials.

At one point, I was thinking of writing a book on how to use expert witnesses. My ex-wife does a lot of expert witness work in bank fraud cases and we were going to do it together. Our oldest son is a trial lawyer in real estate law. It could have been a family project.

Almost Ali said...

If not for absolute prosecutorial immunity, the Innocence Project could shut down.

And remember when we were children of the court, and our parents lamented about the rare case that slipped through the tiny crack in the floor. Which we later found out wasn't a crack at all, but a huge hole through which many were pushed. And the only possible way to prevent it was to practice in the private sector, and never forgetting that virtually every judge you would face is a former prosecutor - the real meaning of double jeopardy.

And there, through the crack in floor, went the 300.

Rob said...

Bullshit. In Indiana almost NONE of the appellate judges are former prosecutors. Most cases are won and lost on the facts. Lawyers are not as magical as you might think, and this is another area where TV has created a false reality.

Almost Ali said...
This comment has been removed by the author.
buster said...

Like it or not, the immunity of prosecutors is absolute: i.e., there are no exceptions if the immunity applies. But there are two limits on the immunity. First, it only applies to civil liability. If a prosecutor commits a crime he can be prosecuted. Second, he must be acting in his capacity as a prosecutor: pursuing criminal charges, preparing to do so, or deciding whether to do so. In this case the best argument in favor of liability for the prosecutor is that whether to seek extradition is not a function that falls witthin the immunity. But it doesn't seem like a strong one.

Almost Ali said...

In that case, Sir Rob, I'm coming to Indiana.

BTW, where do they get their judges, Sears & Roebuck?

Almost Ali said...

Beyond Sears & Roebuck:

Judges are Taught to be Biased in Favor of the Prosecution

The Godfather said...

This case seems to involve an attempt to use the legal system to remedy a defect in the legal system. Whatever happens in this case, it doesn't seem likely to cure the underlying problem. That seems to be the point that Kosinski is trying to make.

Mary Beth said...

Why aren't they going after the people who didn't count his 120 disciplinary reports against his good credit time?

Barry Dauphin said...

There is no remedy for the specific case, but prosecutors are elected and have to attend to polls and the electorate.

RigelDog said...

Prosecutors have a set budget; set by another political entity over whom they have no control. They must make decisions to allocate money and manpower among competing interests. Should they spend the money to extradite this brute back to spend a little more time in jail--or spend that money to relocate another witness who is afraid to testify because the man she saw shooting up the street lives in her neighborhood?
Why is this on the prosecutor for not extraditing instead of the parole board for releasing the brute early? Even more to the point, what's with the original low sentence for stabbing his mother to death? He was going to get out of jail one way or the other while still in his lethal prime.

Rob said...

Professor Althouse:

What do YOU think about the death of proximate cause? Should anyone in the chain of causation be subject to lawsuit? Is that good for society? Does it encourage looking not for responsibility but rather for deep pockets?

Kirk Parker said...

Wow. I usually find Kozinski's arguments compelling, but here he's just falling off the loony side of the truck:

1. What's with the absurd strawman hypotheticas? The onerous task of extradition from Japan, when in the instant case the state officials pretty much literally did nothing, even during the time of Tavares' incarceration when they arguably had a positive duty to correctly manage his prison term.

2. Doesn't Kozinski realize that the alternative to a state criminal justice system is blood feuds and that kind of thing? The state does owe the citizenry something in exchange for its monopoly on the use of coercive force.

On the other hand, I also agree with the folks asking why the prison and parole officials aren't on the hook, too.

Rob said...

This is about what the PROSECUTOR did or did not do. Is he responsible for the decisions made by the prison authorities?

Look at what this case is about. The theory of liability is that if the taxpayers had only fulfilled their obligation to prosecute, then the new crime would never have been committed. Does this work? Should the taxpayers have such an obligation? Should the money spent on that obligation be unlimited.

Should EVERY crime committed be prosecuted? Should EVERY potential extradition be done, at WHATEVER cost? Shall we second guess the people who make those decisions with our tax dollars?

campy said...

Should the taxpayers have such an obligation? Should the money spent on that obligation be unlimited.

Should EVERY crime committed be prosecuted? Should EVERY potential extradition be done, at WHATEVER cost? Shall we second guess the people who make those decisions with our tax dollars?

Sure. If it saves even one child's life, it's worth it.

Kirk Parker said...

Rob, for your last question--if I may put on my Kozinski strawman hat for a second: the answer is OF COURSE. Can you imagine the world we'd live in if our officials had NO accountability?

Kirk Parker said...


But yeah, I don't want to make it sound like I necessarily agree that the plaintiffs should win their case (hence my added part about the prison and parole officials); I was mostly objecting to the part of Kozinski's argument as quoted here.

Rob said...

I have to say the comments here scare me.

Immunity should not be an issue. That is, the Immunity rule should not be necessary and governmental actors should not have to hide behind it.

The State's failure to prevent should not be grounds for liability. If you start down that path you might as well empty the treasury. In addition, you had better think about all of the bad things in life YOU could prevent.

It is no wonder this country is broke.

Rob said...

To put it more bluntly:

Who caused the damages here?

Dante said...

The problem with suing is there is no or little competition in many government services. A bad man was let go, and he did it again. But how will taking money away from the DAs office, or any law enforcement office, help the situation? In fact, one might argue it would hurt.

If there is competition, then punishing one organization helps, like in a hockey game when one team is penalized.

Kirk Parker said...


"The State's failure to prevent should not be grounds for liability"

Isn't the issue that the state failed to make even a pretense of a half-hearted effort? I live in Pierce County, WA, where we have been hit with (and lost) more than one well-deserved suit along the same lines (iirc, one of them might have been against the state for a situation that occurred here in the county.)

Let me reiterate and extend my umbrella statement above. Part of the social contract is that we give up our right of private revenge for something that's much better: an organized system of justice. But that deal depends on the state actually providing such, and if they don't even go through the motions, then what's the point? I'd far rather (figuratively) burn a few prosecutors and police officials by getting the pendulum to swing a little ways back, as opposed to having it come all the way over to The Warre of All Against All.

Levi Starks said...

It seems to me like the problem is that the residents of one state are adversely affected by the authorities of another state. The state of WA should sue the state of MA. MA was well within it's rights to release a convicted felon on the residents of it's own state, but in failing to keep him within the borders of their state for the duration of his parole, they are negligent.

Richard Dolan said...

The case was about a violent criminal who served a long prison sentence in Massachusetts and was released two years early because prison officials erred in calculating his good time credits. After his release, he moved to Washington and murdered two people. The claim is that the Massachusetts prosecutor breached a duty to seek the extradition of the killer from Washington before he had the chance to do the murders.

Kozinski uses the example quoted by Ann to show the weakness in plaintiff's theory. He didn't need that example to make his point. A tort requires the breach of a legal duty owed by the defendant to the plaintiff. The theory here is that the Mass prosecutor owed a duty to the world at large, to protect them from a potentially dangerous killer by keeping him incarcerated for as long as possible. There are so many discretionary steps along the way to a prisoner's release, and then after his release in supervising him, that no duty could be sensibly defined that could have helped these plaintiffs.

Even if there were grounds to seek to revoke this guy's parole and try to have him returned to prison, Kozinski pointed out that there were many grounds on which the Mass prosecutor might have decided not to bother. What Kozinski doesn't say is that, once the parole decision was made and the guy was released, he had a due process interest in keeping his freedom. It is far from clear that, without a violation of the conditions of parole, the Mass authorities could seek to revoke his parole based on the error in calculating the good time credits. That issue would have turned on an involved analysis of Mass law (to define what the scope of the guy's precise 'liberty' interest) as well as due process standards.

Note that nothing indicates that this guy committed a violation of his conditions of parole between his release and the murders. The plaintiffs' theory is that, even if he were a clean-living reformed guy, the Mass prosecutor had a duty to try to bring him back to serve another year or two, based on the error in releasing him early, because it was foreseeable that he would kill again. Given recidivism rates, of course, it is foreseeable that most released convicts will commit another crime. But that's not a very persuasive argument for a 'throw the key away' approach, particularly in a criminal justice system that is already one of the harshest in the world. Yet that's where plaintiff's theory leads.

The judicially created doctrines of immunity strike me as unwise in their scope and breadth. A more sensible approach would focus (IMO) on an analysis of the duty allegedly breached in each factual situation. But given that judges make the rules, and have an inordinate view of the importance of the judicial function as compared with most other gov'tal functions, I suspect the immunity doctrine is here to stay, unless Congress decides to address these issues. Very doubtful that Congress will ever do any such thing.

C R Krieger said...

I apologize for going off topic, but I do claim I was entice by the mention of double j, an issue that bugs me.

Respectfully  —  Cliff

Rob said...

Richard, I agree with most of what you have to say, which I would still distill as: Whatever happened to proximate cause and the closely related question of duty?