Refusal to Prosecute Anti-Abortion Laws Highlights Whim Powering Legal System

Goya, Saturn Devouring His Son,
painted sometime between 1819-1823.
The image represents America today,
as judicial cult deliberating in secret has
decided women no longer have autonomy
over their bodies. The Supreme Cult seeks
other victims, amid warning, no criticism.

Commentary: Prosecutorial Discretion and Liberty

Madison, Wisconsin — Many citizens read the news that Wisconsin Attorney General Joshua Kaul (D) declared his office will not investigate or prosecute woman for abortion-related 'offenses' with approval.

Kaul made his intentions to refuse enforcement of Wisconsin's 1849 ban on abortion following oral arguments of Dobbs v. Jackson Women’s Health Organization in Dec 2021.

The Supreme Court decision on Dobbs will soon eviscerate reproductive liberty as the judiciary jettisons its station as a Court of law.

"Even if courts were to interpret that [1849] law as being enforceable, as attorney general I would not use the resources of the Wisconsin Department of Justice either to investigate alleged violations of that abortion ban or to prosecute alleged violations of it," Kaul said in an interview with the AP.

Sen. Ted Cruz (R-Texas) claims to be outraged by Kaul and other DAs and attorneys general vowing to refuse to enforce anti-abortion laws.

Republican justices on the nonpartisan Wisconsin Supreme Court will interpret Wisconsin's 1849 ban as enforceable after Republicans on the nonpartisan United States Supreme Court hold women no longer have reproductive liberty.

Kaul was criticized for his abortion-law position by his Republican opponents for attorney general — Fond du Lac County District Attorney Eric Toney and State Rep. Adam Jarchow (R- Balsam Lake) in the AP piece.

"I am proudly pro-life and I will defend the police and defend our Wisconsin laws, including our abortion ban, if allowed," said Fond du Lac County District Attorney Eric Toney (R).

Adam Jarchow said that Kaul is a failed leader for his stated refusal to enforce criminal law. "[W]hile it’s disappointing that he says he will not follow the law, it’s not surprising," said Jarchow.

Some Wisconsin laws are more worthy of being followed and enforced than others.

Fast-forward five months to May 2022 and Jarchow is excoriating his Republican Primary opponent, Eric Toney, for enforcing Wisconsin's emergency order banning mass gatherings in 2020 (Opoien, The Capital Times). Republicans on the Wisconsin Supreme Court decided the ban was illegal.

But there is no rule of law to be found among prosecutors and judges.

Prosecutorial Discretion

Advocates for the wrongfully convicted continue to blast Attorney General Joshua Kaul for his political decision not to employ prosecutorial discretion in the DOJ's ludicrous crusade to keep those whom the State knows to be innocent in prison in post-conviction litigation, (see Steven Avery Motion to Stay Appeal and Remand, includes new eyewitness affidavit. April 12, 2021; Steven Avery Legal Filings - Updates;  State of Wisconsin v. Steven A. Avery, Appeal Number 2017AP002288 Wisconsin Democrats Block Exoneration Seekers.)

Advocates for the exonerated Black Lives Matter protesters in Madison similarly blasted the Democrat-led Dane County District Attorney’s office for changing its charging standard in two bizarre Black Lives Matter cases to accommodate a racist Democrat State Senator, Tim Carpenter (D-Milwaukee).

Prosecuting charged law-breakers is determined by politics, increasingly so.

And the judiciary is a politically charged branch of government that hides behind black robes and pretension.

The rule of law is the product of the personal whims of officeholders. Refusal to acknowledge this reality gives prosecutors (and judges) political cover.

Liberty and the rule of law are little more than political slogans of two corrupt and destructive politcal parties.

And prosecutors, in the words of Robert Jackson, are potentially the worst threats to a civil society.

"While 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," writes Robert Jackson in The Federal Prosecutor.

As prosecutors lie and posture to the public to no accountability, Jackson's warnings speak loudly today.

It's imperative to refuse to enforce unjust law such as bans on abortion animated by a dishonest judiciary engineering its unpopular, anti-liberty agenda in secret, as the U.S. Supreme Court proceeds.

Gap between government and the people

The fact of the matter is the enormous power of the prosecutor to direct state violence has corrupted entire professions, and the judiciary, as these super cults become focused on destroying liberty.

As the liberty of an entire class of people stands on the brink of elimination by black-robed cultists, we should consider the words of Milton Mayer, They Thought They Were Free: The Germans, 1933-45, (University of Chicago Press. ©1955).

"What no one seemed to notice was the ever widening gap ... between the government and the people."

"What happened here was the gradual habituation of the people, little by little, to being governed by surprise; to receiving decisions deliberated in secret; to believing that the situation was so complicated that the government had to act on information which the people could not understand."...

This separation of government from people, this widening of the gap, took place so gradually and so insensibly, each step disguised (perhaps not even intentionally) as a temporary emergency measure or associated with true patriotic allegiance or with real social purposes. And all the crises and reforms (real reforms, too) so occupied the people that they did not see the slow motion underneath, of the whole process of government growing remoter and remoter."

The prosecutor, the judiciary and the legal system as a whole have turned into a remote and destructive force that, even as the system's nature and effect become more obvious, cries out in response that the real danger is public criticism and calls for transparency.

We need massive reform on the power of the prosecutor and the judiciary as institutional narcissism working for totalitarian movements now feeds on the public with renewed appetite.

But even casual observers must know in their hearts, reform is not possible. Only massive civil disobedience and general strikes can save liberty today.

'Making a Murderer' Shines Light on Wrongful Convictions

Simon Booker at the Huntington Post notes the success of Making a Murderer has focused attention on the police-prosecutor-prison complex defining the American justice system.

The nearly daily reports of exonerations have seen 2015 record the most exonerations in American history.

But make no mistake the Blue Wall of Silence and careerism make wrongful convictions in America common and difficult to overcome, no matter how glaring the errors and injustice.

Readers here know this legal-political journal has worked locally in Madison, Wisconsin for a new trial for Penny Brummer, wrongfully convicted of first degree intentional homicide in 1994.

A petition for a new trial has begun quickly gathering 100s of signatures in the saturated social justice petition realm of the Internet.

The current District Attorney Ismael Ozanne (Dane County Wisconsin) knows fully well a new trial would result in a exoneration by Penny Brummer, yet refuses to stipulate to a new trial. Advocates await a response, an opportunity for Ozanne to stand up for truth and justice over convictions.

This will require moral courage, and decency.

Twenty years after Brummer's arrest and conviction no longer does being an out lesbian render an individual suspect, and garner dehumanization by prosecutors at trial.

Still, advocates expect this obstinate refusal of prosecutors and police to speak out against injustice.

A retired Madison Police Chief, David Couper writes me in response to a question about Brummer he is in "no position" to do anything, apparently forgetting that in America citizens are free to sign petitions, write letters, columns, contact their elected officials for a redress of grievances, and work with like-minded citizens to persuade the local District Attorney's office to stare truth in its face.

A growing number of advocates are looking askance at this I-don't-know, nothing-I-can-do posturing by retired police and active prosecutors as an innocent woman, whom reportedly even the prison guards have come to regard as wrongfully convicted, sees Year 21 behind bars.

Advocates await a champion to stand up for truth and are optimistic this year, for reasons I cannot explain here without breaking a confidence.

Dante Alighier wrote, the "hottest places in hell are reserved for those who, in times of great moral crisis, maintain their neutrality."

Norman Cohn termed neutrality, "passive compliance."

The consequences of passive compliance are catastrophic. Ask Penny Brummer.

UW Innocence Project in Washington Post: Justice System Is Flawed, Error-prone

Update: The District Attorney's office from a Wisconsin county up north from which I obtained the district attorneys' oath is contradicted by a subsequent email and the Dept of Administration's (DoA) email which, citing statute, point out the Wisconsin DAs' oath reads: "I, the undersigned, who have been elected to the office of District Attorney of ____________________ County, but have not yet entered upon the duties thereof, swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of Wisconsin, and will faithfully discharge the duties of said office to the best of my ability. So help me God."
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Keith A. Findley, co-director of the Wisconsin Innocence Project at the University of Wisconsin Law School, has a column critical to Wisconsin jurists of good faith, intellectual honesty and "humility" in the Washington Post this weekend.

Findley's column should be read by every Wisconsin prosecutor, as should the district attorneys' oath of office, particularly, the clause reading, "that I will administer justice without respect, [meaning with no prejudice] to persons ... ," [Wisconsin Statute 757.02, regarding oath of office for justices and judges, typically borrowed for use of the oath of office for district attorneys].

Writes Findley:

[W]hile most police, prosecutors, defense lawyers and judges are good, honest people who do their best to achieve justice, they do sometimes fail and even, on occasion, cross the line into misconduct in their zeal to secure what they perceive to be a just outcome.

Wrongful conviction doesn’t only mean an innocent person ends up in prison. It also means a guilty person goes free. When the system fails, there is no justice for victims and their loved ones.

We have known for decades that the system is prone to error. Since the advent of forensic DNA testing in the late 1980s, at least 337 people, who each have spent an average of 14 years in prison, have been proved innocent by DNA evidence. According to the National Registry of Exonerations hosted by the University of Michigan Law School, exonerations based on all types of evidence, not just DNA, amount to at least 1,728 people who have been exonerated of serious crimes since 1989. The number is continually growing.

By presenting these issues in human terms, 'Making a Murderer' has done a service by forcing us to look beyond the numbers to remind us that each such case is a real human tragedy that affects real people with real lives. It reminds us that eyewitnesses sometimes make mistakes, that forensic science is not always all that scientific, and that, contrary to what a prosecutor in the [Brendan] Dassey trial disingenuously told the jury, innocent people do indeed sometimes confess.

Concludes Findley with numerous solutions, writing in part: "We must make the system more responsive to post-conviction claims of injustice and less bound by blind obedience to finality."

To translate for the lay reader, no district attorney should ever protect a conviction that he knows incarcerates an innocent woman, or a conviction that clearly fails the burden of beyond-a-reasonable-doubt-to-a-moral-certainty.

When our system comes to that, we are no longer a country of laws, we have become what Glenn C. Loury aptly terms a "leviathan."

To borrow from Robert H. Jackson's address 75 years ago, "While 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," (U.S. DoJ).

Prosecutorial Reform—70,000 Prosecutors Can Aspire to Be 70,000 Robert Jacksons

University of Wisconsin-Madison Innocence Project
Above are the proven-innocent-after-conviction; wrongful
convictions rarely draw a rush to find out what's wrong. Ask
the innocent Penny Brummer who remains incarcerated.
Ms. Brummer's real offense—Brummer is a lesbian
and victim of the Dane County Sheriff's Department
and a case study in Confirmation Bias, and was
convicted in 1994 on circumstantial evidence only.

Phil Locke calculates that in the United States there are some 70,000 prosecutors. (Wrongful Convictions)

Defense attorneys, civil libertarians and other advocates for those Americans unfortunate enough to enter into the American criminal justice system as defendants witness the dedication of prosecutors to make defendants and those forced into convictions—risk your life and go broke or plead (charge stacking)—spend as much time incarcerated as possible during and after adjudication, with the assistance of the odious Court Services systems around the country.

Some jurisdictions are much better than others, especially now that mass incarceration (Bravin, Wall Street Journal) and police and prosecutorial misconduct are coming to the fore thanks to the work of jurists and reformists such as Mark Godsey, Sidney Powell, Jeff Scott Olson, the Center for Constitutional Rights) and Chief Judge Alex Kozinski (U.S. Court of Appeals for the Ninth Circuit) and Richard Posner (U.S. Court of Appeals for the Seventh Circuit) and the various Innocence Projects around the country, for example.

The denial of liberty is a foundation of the land of the free, and for reasons surpassing understanding the objective of the many prosecutors is to incarcerate, period.

Writes Locke, Science and Technology Advisor for the Ohio Innocence Project and Duke Law Wrongful Convictions Clinic, "I have been doing innocence work for only 7 years, but just in that time, I have seen case after case in which prosecutors withhold evidence, badger or threaten witnesses, make deals with snitches, stack charges to coerce a plea deal, refuse to allow DNA testing, and refuse to allow post-conviction access to evidence. And once the litigation has moved into post-conviction, prosecutors will, without exception, vigorously defend every conviction, no matter how wrongful they might be. I’ve worked 63 cases in eight different states and two foreign countries, and, on top of that, have knowledge of probably 100 other cases; and I find it’s the same all over. Have I seen some exceptions to this 'rule?' Of course, but they’re not common. My belief is that this characterizes the preponderance of prosecutorial behaviors. I can only report what I observe, and clearly there is cause for change."

Dane County District Attorney Ismael Ozanne running for Wisconsin Attorney General last year wrote, "I have worked with lawyers from the Innocence Project, and will do so in the future. ... The ultimate goal of the system is not simply to secure convictions, it is to do justice." (Mal Contends)

In the Democratic Primary election Wisconsin voters chose Ozanne's opponent, Susan Happ, who rode a Harley in a frequently run campaign TV spot featuring Happ looking like an extra for Sons of Anarchy (Sutter, FX Productions, Art Linson Productions and Fox 21), despite Happ's sterling CV.

Prosecutors dedicated to truth don't carry much electoral appeal.

Locke has several suggestions, one of the most compelling is: "Let’s have all trial counsel, prosecutors and defense attorneys, sworn in at the beginning of each trial," sworn in to tell the truth.

Here's another, from Mal:

Each prosecutor before assuming office must read the disquisitions on prosecutorial discretion of Robert Jackson.

If at the end of trial the prosecutor determines the quantum of evidence is circumstantial or suffers defects that a reasonable jurist would determine is less the beyond-a-reasonable-doubt standard, then she must drop all charges.

US Senator at AG Nominee Confirmation Hearing: Read Licensed to Lie

Licensed to Lie by former Assistant
United States Attorney and Chief of
of the Appellate Section for the
Western and Northern Districts of Texas,
US Department of Justice, Sidney Powell

U.S. Senator Orin Hatch (R-Utah) offered an unusual comment in last week’s confirmation hearings for the proposed new attorney general of the United States, Loretta Lynch.

Hatch suggested the nominee read a book: Sidney Powell's Licensed to Lie: Exposing Corruption in the Department of Justice (Brown Books Publishing Group, 2014).

Hatch is right.

Prosecutorial misconduct is rampant in prison-state America.

Prosecutorial discretion is a quaint term we see when one reads old essays and speeches by Robert Jackson.

Violations of the Brady Rule, prosecutors’ duty under the Brady v. Maryland (1963) case to turn over to the defense exculpatory evidence are "epidemic," to borrow a term from an opinion from Judge Alex Kozinski, Chief Judge, U.S. Court of Appeals for the Ninth Circuit. (Cassens-Weiss, ABA Journal)

From small-town prosecutors in Mississippi to northern Wisconsin, from federal prosecutors across the country to the District Attorney's office in Grant County Wisconsin, too often the office of the Prosecutor has abandoned the conception of justice, in favor of careerism and convictions.

Wrongful convictions, abuse of process and malicious prosecutions are routine in the USA.

Richard Posner of the Court of Appeals for the Seventh Circuit sounds the alarm in Fields v. Wharrie and Kelley.

And locally the Dane County (Wisconsin) District Attorney has spoken out favorably of the work of the Innocence Project.

"No prosecutor should want to have innocent people who have been wrongfully convicted stay in prison. If evidence is brought to the attention of the authorities demonstrating that a mistake has been made, the interests of justice demand that the evidence is carefully reviewed and the individual should be released if exonerated. As Dane County District Attorney, I have worked with lawyers from the Innocence Project, and will do so in the future. ...The ultimate goal of the system is not simply to secure convictions, it is to do justice," said Dane County District Attorney Ismael Ozanne. (mal contends)

Sidney Powell, the author and federal appellate jurist whom Sen. Hatch recommends, wrote in response remarking of prosecutors:

Indeed, as officers of the court entrusted with the power of the Sovereign, they should be held to an even higher standard. Instead, abusive prosecutors have been promoted, gaining even more power that will make them even more corrupt.  What happened to the citizens in Licensed to Lie can happen to anyone. Just ask the teams of the Innocence Project who work tirelessly to free people who have spent decades in prison for crimes they did not commit. More than half of those wrongful convictions were the result of prosecutorial misconduct.

Powell is among the few voices in this country standing up and stating repeatedly: Prosecutors have a license to lie, and this is wrong.

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.

Policing Prosecutors

Some resources below for a needed reform: Policing the prosecutor.

Prosecutors tend to forget such notions as public interest, justice and prosecutorial discretion, instead focusing on political careers and an unthinking, rabid utilization of the power of their offices.

From the Justice Project:

Prosecutors decide which charges to bring, what plea bargain to offer, and what sentence to request. Their decisions have far-reaching consequences on defendants, victims, their respective families, and the general public. Given the special duties of prosecutors, and the broad power they exercise in the criminal justice system, it is critical that prosecutors discharge their duties responsibly and ethically.

See Prosecutorial Accountability, The Justice Project and Improving Prosecutorial Accountability: A Policy Review.

The Justice Project’s Recommendations to Ensure Prosecutorial Accountability

- States should require that prosecutors’ offices adopt and enforce clearly defined official policies and procedures.
- States should require open-file discovery in criminal cases.
- States should require that prosecutors document all agreements with witnesses and jailhouse informants concerning conferment of benefits of any kind.
- States should require trial and appellate judges to report all cases of prosecutorial misconduct, including cases where the misconduct is ruled to be harmless error.
- States should establish a prosecutor review board with the power to investigate allegations of misconduct and impose sanctions.
- States should require that prosecutors participate in training and continuing education programs.