Thursday, August 18, 2016

The FBI Caves

So the FBI caves.   I think this is a big deal with implications far beyond the immediate kerfuffle.  Back in the Pleistocene when I went to law school, I was taught that the one non reviewable decision was the decision not to prosecute.  It's a rule that his never been completely immune to criticism: we can all think of cases where a prosecutor seems to have buried a contentious case without any obligation to explain himself to the world or anybody.  But mostly I'd say it has worked pretty well.  The thinking seems to be that prosecutors must have some freedom of motion, and that in general, a mistake in deciding not to prosecute is just nowhere near as harmful or invasive than a mistake in deciding to go forward.

Lately I think we've heard more criticism of the no-prosecute rule, particularly in the realm of "sex cases"--rape or abuse
.  I suspect that most prosecutors think that cases of this sort are just rough to prosecute, too easy to lose--and that losses may defeat the whole purpose of the enterprise.  And I haven't any doubt that there are some prosecutors who think these cases just aren't that-all important anyway.

Whatever.  What's sure is that we are hearing a progressively louder chorus of complaint from victims and their advocates that their concerns just aren't being taken seriously enough--and that one path to reform would be to compel the prosecutor to explain or justify his no-prosecute decision.

If I were a lawyer likely to get embroiled in this kind of controversy, I'd be opening a new file on the FBI decision to turn over.  Either yea or nay, I'll be needing to bone up on all the arguments so I will be ready as the issue evolves.


The New York Crank said...

FBI decisions, certainly during the age of Hoover (j. Edgar, not Herbert) and possibly since, have often been political decisions.

I know of one case when a small business owner was approached by the FBI and told to dismiss an employee because that employee had once, many years earlier, allegedly belonged to the Communist Party. I also know, as do you, of a certain college campus in Ohio where the FBI maintained a student spy, whose job was to report on other students who might have red or even pink opinions. (One of those students had qualms of conscience that led him to spill the beans.) Then there was the bootlegger who got shot in the back exiting from the movies. He may have deserved it, but it certainly avoided the political friction of a trial.

For that matter, my ex-wife got busted by the FBI, at the age of ten, for trick-or treating in a large Manhattan apartment building.

A kitchen door flew open (the kids were told to use the back, or servant stairs) and the two little girls found themselves staring into the muzzles of FBI hardware, and then turned around, shoved against a wall, and patted down. The FeeBees next summoned their parents and let them go with a warning to "never go trick or treating again." Well,m the building happened to be the one in which Judge Kaufman, who imposed the death penalty on the Rosenbergs, lived. But two ten year old girls in witch hats carrying Trick-or-Treat shopping bags? Gimme a break!

Yours very crankily,
The New York Crank

Ebenezer Scrooge said...

I wonder why nonprosecution for sex crimes gets all over the papers; nonprosecution of crimes committed in a nice suit not so much. Which is more threatening: feminism or populism?

Buce said...

Eb--never gave it any thought but my top-of-the-head guess is that the victims in the sex cases are easier to identify and self-identify and to personalize. Also, most of these tend to be local prosecutions where an angry victim and her allies can at least make life difficult for a reluctant prosecutor.

Both cases--sex crimes and finance--seem to be difficult to make, but for different reasons. The difficulty with sex cases is easy enough to see--usually revolves around consent (and certainly there is a lot of outright sexism involved).

The money cases--I suppose it can be difficult to tell those intricate stories. But it seems to be tough in the individual case to persuade the jury that what was done was wrong. Also he harm is much more diffuse. I suppose a good prosecutor will try to persuade the jurors to identify with the victims--could have been me. Consider Bear Sterns I think any decent market pro would have seen the behavior as nothing worse than insane optimism in the race to make a buck. Probably a bit of "hm, looks like everybody does it," and perhaps everybody does do it.