Milwaukee Journal-Sentinel Flacks for US Atty Biskupic

Madison, Wisconsin—The opinion by the US Court of Appeals for the Seventh Circuit that explained the freeing of the innocent state worker Georgia Thompson is being used by the Milwaukee Journal-Sentinel to provide political cover for US Atty Biskupic.

The Journal-Sentinel editorial, “Mistakes aren't crimes” (April 24, 2007), seized a slender reed at the end of the 14-page opinion that was also used by Biskupic in his own audacious public relations move after the written opinion was issued April 20.

Reads Biskupic’s statement on the Court’s opinion: “We are studying the decision to determine its impact on other cases. Meanwhile, given the initial rhetoric surrounding the result, we are heartened that the opinion notes the good faith legal difference inherent in the case.”

Biskupic and the Journal-Sentinel both attempt to declare Biskupic’s good-faith intentions in bringing the prosecution, called “preposterous” in the opinion, by citing one paragraph criticizing the ambiguity of the parts of the federal statute used by Biskupic.

"Sections 666 and 1346 have an open-ended quality that makes it possible for prosecutors to believe, and public employees to deny, that a crime has occurred, and for both sides to act in good faith with support in the case law."
- 7th Circuit U.S. Court of Appeals Chief Judge Frank Easterbrook

Reads the contorted Journal-Sentinel editorial:

“Let's translate: Biskupic was not out of bounds to believe that a crime had been committed. But the court respectfully disagrees - in language in this written decision far more tempered than that which occurred during oral arguments. But disagree the higher court does, even in writing. On the whole, ‘beyond thin’ as a description of the evidence still holds up, it says.”

Not out of bounds?

That’s disingenuous.

And if Biskupic and Milwaukee Journal-Sentinel editoral board are truly convinced of Biskupic’s good faith intentions, they would not have to quote so selectively from the opinion.

Rule of Lenity

The opinion’s notes that this “open-ended quality” and “(h)aziness” of the statute should never be used by prosecutors to bring creative and novel prosecutions, per the “Rule of Lenity.”

The Rule of Lenity, as Judge Easterbrook notes, is the judicial doctrine that “ambiguity in criminal legislation be read against the prosecutor, lest the judiciary create, in common-law fashion, offenses that have never received legislative approbation ….”

Let’s translate.

Prosecutors should not invent crimes by stretching laws to the breaking point so they can bring prosecutions under our laws that were not made to ban imaginary crimes dreamed up by creative prosecutors—or in Biskupic’s case, a corrupt prosecutor seeking the favor of Karl Rove.

Prosecutorial Discretion

But we do have a check on hazy, open-ended laws, so that prosecutions of innocents never have to reach an appeals court.

It’s called “prosecutorial discretion,” but it’s in short supply nowadays, and Biskupic is not alone in his refusal to exercise it (liberals especially like to use the prosecutors’ office as vehicles for their political careers, too often excluding prosecutorial discretion in the conduct of their offices).

As discussed in an address, The Federal Prosecutor, by the great jurist Robert H. Jackson (1892-1954), prosecutorial discretion—measured and well-considered decision-making by the prosecutor on whom he or she is going to prosecute—requires that that prosecutors “select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”

Jackson notes that a “sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims ... .”

When Biskupic (still) defends his prosecution against the innocent Thompson by noting he was able to convince a jury and two trial judges of his view of the charges, he misses Jackson’s point that Biskupic should exercise prosecutorial discretion precisely because the prosecutor’s office is immensely powerful and persuasive, and that “the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”

Thompson and Biskupic’s current voting-fraud prosecution victims would agree.

Concludes the Journal-Sentinel editorial: “Thompson very correctly returns to a state job with the same pay and about $67,000 in back pay. It doesn't seem enough.”

They have that part right.