September 16, 2007

A LEGACY OF THE DUKE CASE: Concerns about prosecutors: “Some observers see a potential sea change in US attitudes over prosecutorial power.” I’d say it’s time.

UPDATE: Link was bad before. Fixed now. Sorry!

MORE: Reader Rob Ives thinks I’m too hard on prosecutors:

Well, as a guy who has been tossed from office three times (no kidding) by the voters, I think I am fairly expert on checks against a prosecutor’s power (the first part really is true, but that is a joke). . . .

I don’t think mainstream press reports are a good place to find out what is happening in the criminal justice system and I have never seen any statistical evidence that would support what I take to be your position.

I know there is one thing we almost certainly agree about: the drug war has been very hard on the justice system. I am unquestionably libertarian at heart, and your position on this bothers me largely because I strongly agree with you about issues such as the drug war, guns, and search warrant errors. However, you make me nervous when you express a desire to apply the tort system as a solution to a problem. I despise the american tort system. Put in loser pays, and maybe we can talk.

Well, “loser pays,” if you believe in it, should apply here — defendants found not guilty, or convicted on significantly lesser charges, should be able to recover their expenses from the government’s purse. But it’s not just the news media — when I was a law clerk we had a case in which federal prosecutors actively concealed evidence of innocence from the defendant and the court. And I’ve seen enough of this sort of thing — and enough evidence of prosecutors’ power to damage even those who are never charged — to think that we need more checks and balances. And fewer criminal laws to start with.

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