Prosecutorial Discretion and Prosecutorial Protection

NYPD Deputy Inspector Anthony Bologna: American fascist

In Boston and Watertown, America has seen the best of law enforcement working with citizens and communities in a common effort.

Now comes word of the worst.

"The [Manhattan] District Attorney’s Office has concluded, after a thorough investigation, that we cannot prove these allegations criminally beyond a reasonable doubt," says Erin M. Duggan, chief spokeswoman for the Manhattan DA, Cy Vance.

Duggan refers to the savage attacks by New York City Police Inspector Tony Bologna who sought out and assaulted peaceful Occupy Wall Street protesters in 2011 with pepper spray in several premeditated acts of disgusting violence, captured on video, and plastered all over the Net in 2011. (John Del Signore, The Gothamist)

"Despite the overwhelming proof on videotape, seen around the world, (Manhattan District Attorney) Cy Vance Jr. has shown that it he will do nothing to disturb his cozy relationship with the police, even in the face of the clearest wrongdoing," attorney Ron Kuby said.

Consider also from late February (2013), the Milwaukee District Attorney's press release announcing the closing of the John Doe probe into Scott Walker's tenure as Milwaukee County executive in which Walker was not charged.

This February exoneration of sorts occurs—though Walker's e-mails on a secret, illegal e-mail system in his office were made public along with those of convicted felons' whom Walker hired and supervised—with the same explanation given about Inspector Tony Bologna.

The Milwaukee DA's press release reads in part: "I am satisfied that all charges that are supported by proof beyond a reasonable doubt have now been brought and concluded," per the Milwaukee DA John Chisholm's policy.

Proof beyond a reasonable doubt. That's what it takes to convict a defendant.

Now, this standard is increasingly presented by prosecutors to justify not launching prosecutions against protected figures like Anthony Bologna and Scott Walker, because these prosecutions might take a political toll on the prosecutors' offices.

This quantum of evidence of 'beyond a reasonable doubt' is not the standard used by prosecutors' offices to prosecute cases, though this position is getting more use of late as bigger-name, would-be defendants are getting away with corruption and in Bologna's case, physical assaults.

The process by a prosecutor's office in evaluating whether to bring a criminal charge is not a mini-trial with evidential presentations that prosecutors use as the basis to proceed only if the faux mini-trials conclude with a 'beyond a reasonable doubt' quasi verdict, which is the same as the standard to convict in a criminal trial.

There is no finding of guilt beyond a reasonable doubt reached; that's what a trial in a court of law does.

The reality is a miscarriage of justice that applies only for some, namely Walker and Bologna, and is pernicious to our society and the rule of law.

For most everyone else, prosecutors determine whether there is sufficient evidence and facts establishing probable cause that charges against a defendant should go forward and a probability of guilt exists before trial in jurisdictions in which alleged crimes are the "most flagrant, the public harm the greatest, and the proof the most certain," to again borrow from Jackson.

In our criminal justice system in which law enforcement officials routinely cook police reports and lie in open court (testilying), America has seen the criminal justice system create a "leviathan unmatched in human history," as Glenn C. Loury writes in Boston Review, [and his book, Race, Incarceration, and American Values. Glenn C. Loury. (MIT, 2008)].

This leviathan has not been constructed by prosecutors engaging in bringing only prosecutions they think are supported by evidence beyond a reasonable doubt.   

Ours is a punitive system that now nakedly protects high-profile, would-be defendants in the reasonable expectation that most people will not be paying attention, and most corporate press will work as stenographers.

Does any legal observer or defendant for that matter—surveying the mounting civil citations in municipalities as protests are deemed illegal, money is extracted from citizens, and the sheer number of criminal defendants incarcerated—believe the DA's offices (including Manhattan's and Milwaukee County's) prosecute only cases that prior to criminal trial and plea bargaining have been determined to have already met the legal standard of proof beyond a reasonable doubt?

Not a chance.

Surely, all of the innocent Americans persecuted by their local DA's offices would agree, and are critical of the corporate press that actually cheers innocent Americans being prosecuted.

Take an example, Stephen Biskupic, former U.S. Atty for the Eastern District of Wisconsin (2001-08).

After prosecuting proven-innocent voters, one Georgia Thompson and a Navy Vietnam-era veteran, Keith Roberts, Biskupic largely received a pass from the press and after 2008 worked for Scott Walker's campaign, before jumping ship early this year from the GOP's ethically challenged law firm where Biskupic was a partner.

Consider GOP mouthpiece Mike Nichols of the Milwaukee Journal-Sentinel (May 11, 2007) who says though the evidence behind the prosecution of Georgia Thompson was a "bust," [Thompson's ludicrous conviction was actually tossed after oral arguments in April 2007, an occurrence that almost never happens] we should "admire" Biskupic.

That's giving an out-of-control US attorney a pass, certainly; one reads Nichols' piece and word "admire" rings out today.

Nichols is still writing for the Journal-Sentinel, despite issuing no apology or retraction for cheering on an innocent women being convicted of a federal crime by a corrupt U.S. attorney.

In Wisconsin, even as Scott Walker seems to believe he is above the law after DA Chisholm's refusal to prosecute Walker for misuse of public office, Walker has used the justice system and maintained his personal palace guard to issue civil citations to citizens expressing anti-Walker political thought at what has long been known as the People's House—our state capitol.

Wall Street bankers, Scott Walker, and Tony Bologna may think they are above the law as those prosecutors charged with building criminal cases and protecting the public decide the costs are too high to prosecute—too high for their careers—but refraining from protecting the public from the most egregious of baleful and illegal acts of powerful factions in our society is a betrayal.

As the great jurist, Robert Jackson said in 1940 while serving as U.S. attorney general:

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. 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, who serves the law and not factional purposes, and who approaches his task with humility.

Citizens the nation-over need to ask: Does fair play, human kindness and truth, sound like our U.S. Attorney and local DA?

If not, then speak up.

If so, an occasional thank-you is in order.

Now, too many prosecutors are protecting powerful, unindicted criminals using the imprimatur of prosecutorial discretion as they look to the future with their eyes posted firmly on their careers.

Justice Jackson addressed this action as well: "Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character."

The statistics Jackson referred to are how well the actions of the office serve the powerful.

As for character, that seems to belong to another time.