Comments on: Fining the wrong party, criminal edition

By: Deoxy

Deoxy — Thu, 24 May 2007 17:19:26 +0000

DN,

Sorry, didn’t bother to realize you were the OP! Please excuse me while I go clean the egg from my face.

By: Yoda

Yoda — Thu, 24 May 2007 13:40:51 +0000

to say that lawyers are brazen is somewhat redundant. But the malfeasance that prosecutors sometimes perform is just mind boggling. A few years back we had one who went after one of our guys for pretty much no reason (oddly enough, the employee was working on a project which the prosecutor was involved with, and apparently one developed a deep antipathy towards the other… three guesses which), when the usual harassment abated, the lawyer next went out of his way to draw up charges and also remove this person’s ability to work in our particular industry though use of some really devious tactics.

To their credit, when all was learned, not only did the govt. step up and quash the actions taken against the employee in question, but also permitted the employee to directly charge the prosecutor based on his behavior. Case was filed, won, appealed, and won again. The nice thing was that it wasn’t a case against the government, but against the lawyer who represented it, and that’s who ended up losing the judgment, their job, and ability to practice law.

While it’s nice to see the system correct the wrongs of it’s officers, it happens far too infrequently. You can draw your own moral from the story…

By: Ted

Ted — Thu, 24 May 2007 06:21:41 +0000

It’s not just prosecutors. Not a single attorney has faced any disciplinary consequences over the silicosis fraud.

By: Bill Poser

Bill Poser — Thu, 24 May 2007 06:00:59 +0000

David Nieporent,

If the defendant is guilty of this offense or the other one of which he is accused, he will presumably end up in jail for a very long time and will not be damaged by the mistrial. He will only be harmed, and therefore deserve compensation, if he is innocent. So I don’t think that the danger of compensating a scumbag is great.

By: Mike

Mike — Wed, 23 May 2007 23:22:41 +0000

It’s also worth noting that the prosecutor who did this will also not face any action from the State Bar. There is a reason Mike Nifong was so bold in his prosecutorial misconduct. Prosecutors have been getting away with so much for so long that no one knew there were even limits to what a prosecutor could get away with.

By: David Nieporent

David Nieporent — Wed, 23 May 2007 22:59:07 +0000

ANTIPATHY for the prosecutor IS warranted.

Yes. I believe that my similar opinion on that is pretty clearly implied by the very fact of my post.

By: Deoxy

Deoxy — Wed, 23 May 2007 22:52:03 +0000

David Nieporent,

While it appeasr that sympathy for the defendant in this case indeed appeears to be unwarranted, ANTIPATHY for the prosecutor IS warranted.

The tools we allow the goverenment to use will be ABused – the victim of that that abuse in this case being deserving of such abuse does not mean that the abuse itself is OK or should be tolerated, as the next victim likely will not be.

It’s the same principle as the powers given to the President… people may like a particular President (most seem to like either the current or previous one), but the NEXT President will have the same powers, so we should still restrain the President’s powers, even when we like the current one (whenever that might occur).

By: David Nieporent

David Nieporent — Wed, 23 May 2007 20:19:46 +0000

Bill, your statements are right in principle, but I wouldn't feel too sorry for this particular defendant. The Plain-Dealer also reports:

In the meantime, Newcomb must stand trial in a second, unrelated capital-murder case. Prosecutors say he robbed and killed used-car dealer Frank Tominc, 58, of Wickliffe, on Feb. 3, 2006.

By: Bill Poser

Bill Poser — Wed, 23 May 2007 20:06:48 +0000

The mistrial has also cost the defendant additional time in jail, assuming, as is likely in a homicide case, that he is not on bail. If he is convicted, he will presumably receive credit for time served, but if he is acquitted, the prosecutor’s action will have cost him additional time in jail. I think that the miscreant prosecutor should compensate him for this. Can the court order the prosecutor to pay the defendant? Does the defendant have a good cause of action against the prosecutor? I would hope that prosecutorial immunity would not cover such obvious misconduct.

By: Deoxy

Deoxy — Wed, 23 May 2007 19:50:40 +0000

Actually, if he intentionally threw the trial, then the defendant should be considered to have been found not guilty.