“Middlesex County prosecutors had information that could have helped Aisling Brady McCarthy, the nanny accused of killing the 1-year-old she was caring for. But instead of sharing it, as they should have, they kept it to themselves for more than a year while she remained in jail.” [Yvonne Abraham, Boston Globe; Radley Balko]
And some political liberals, though it is not clear why they should deserve that honorable name, are sad that Wisconsin officials can no longer use the law so freely to raid opponents’ homes at dawn or gag them from talking to the press [background, more; Watchdog, Milwaukee Journal Sentinel, New York Times] More: WSJ editorial, paywall, via Tim Lynch, Cato:
The Milwaukee District Attorney’s office, run by Democrat John Chisholm, sent GAB staff a spreadsheet of search terms [for rifling seized electronic archives] that included prominent national conservatives….The government snoops created ideological search concepts like “big union bosses” and “big government,” as if such phrases suggest some law-breaking intent. Recall that when the IRS targeted conservative groups for special vetting, it created a “Be On the Lookout” list of key words such as “patriot” and “tea party.”
Caleb Brown interviews Eric O’Keefe on the abusive Wisconsin John Doe prosecution of alleged unlawful campaign coordination, much covered in this space. O’Keefe says the growing scope of campaign regulation allows wider scope for the law to be used to harass and persecute outsiders and minority viewpoints, and also speculates as to why the prosecution has not been subject to more intense scrutiny in the press: “The prosecutors have cultivated relationships over a long period of time with the newspapers. Prosecutors get a lot of good stories first, like who they’re going to indict, who got arrested…so the newspapers tend to pander to prosecutors and together they have extremely powerful weapons.” Emails from the Wisconsin John Doe targets’ private accounts, for example, scooped up by prosecutors’ secret subpoenas, later surfaced in stories in the newspapers putting the targets in a bad light.
Did federal prosecutors manipulate Los Angeles Times reporting to help win a case? Even if editors don’t care, readers might [Ken White, Popehat]. Read the whole thing, but here’s one choice quote:
The problem illuminated here isn’t just one of possible government misconduct. It’s the too-cozy too-credulous relationship between law enforcement and the press, and the very questionable decisions the press makes about what is a story. I’ve been writing about this for some time. The press thinks that a picture of a guy being perp-walked is a story, but the willingness of the cops to stage that picture to humiliate the defendant is not a story. The press thinks that juicy evidence against a defendant is a story but law enforcement’s motive in leaking that evidence isn’t. When the people sworn to uphold the law, who are prosecuting someone for violating the law, break the law to damage a defendant, the press thinks that the leaked information is the story, not the lawbreaking by law enforcers. The press does not, as far as I can tell, assess when it is being used as a tool by law enforcement. How could it, if it wants to preserve its source of tasty leaks?
Was the L.A. Times’s reporting manipulated in hopes of helping federal prosecutors win a case? If so, the effort sure backfired [Ken at Popehat, with commentary on the “too-cozy too-credulous relationship between law enforcement and the press”] And from the Fifth Circuit, also on prosecutorial misconduct: “The online anonymous postings, whether the product of lone wolf commenters or an informal propaganda campaign, gave the prosecution a tool for public castigation of the defendants that it could not have used against them otherwise, and in so doing deprived them of a fair trial.” [ABA Journal]
Remarkable story of official malfeasance in Albemarle County (Charlottesville), Virginia: though now released from prison, “Mark Weiner has lost more than two years with his young son and with his wife, he’s lost his job, he’s lost his family home, and he’s lost every penny he ever had in savings or retirement accounts.” [Dahlia Lithwick, Slate]
The Wisconsin Supreme Court has struck down the notorious secret prosecution of conservative political figures in the state, the implementation of which included dawn paramilitary raids at the homes of aides to Gov. Scott Walker and leaders of private advocacy groups. Two justices on the seven-member court dissented from key elements of the ruling and one did not participate. From the court’s opinion:
The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection. The special prosecutor’s theories, rather than “assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth, 354 U.S. at 484, instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished.
Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.
Last year I described the conduct of the prosecution in the case as “stunningly abusive” and wrote:
The citizens of Wisconsin must now demand a full accounting of how these raids could have happened. They should also insist on changes in state law, in particular the “John Doe” law, aimed at ensuring that nothing like them ever happens again.
In dissent, former chief justice Shirley Abrahamson writes that the constitutionality of the search methods used was not under review in the cases at hand. Well known election law academic Rick Hasen laments that the ruling endorses the version of events of Walker aides concerning the raids without a full legal airing, although (he writes) the charges of abusive conduct during the raids were “never fully verified” and are part of a set of “fears which generally do not stand up to scrutiny.” (To be clear about what was going on, the aides in question appear to have been gagged by a court order throughout, though someone on their side appears to have succeeded in eventually conveying the story to the Wall Street Journal and other outlets).
Another reaction yesterday, from a well-known advocacy shop in Washington, D.C., might be summed up as follows: “We need 500 words on the Wisconsin John Doe dismissal, but don’t mention the dawn paramilitary raids or the gag orders.” “OK, can do.”
Related: Ilya Shapiro says a petition for certiorari by former Walker aide Kelly Rindfleisch “provides an excellent vehicle for the U.S. Supreme Court to address the degree to which the Fourth Amendment requires a warrant for searching electronic data, tailored to probable cause.”
“In the latest issue of Georgetown Law Journal, Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals turns a critical gaze toward America’s criminal justice system. …one of [the essay’s] major themes is prosecutorial advantage, both in federal and state courtrooms.” Among his topics: judges’ and federal authorities’ reluctance to name or charge misbehaving prosecutors. He thinks the U.S. Department of Justice should drop its opposition to “a bill proposed by Republican Sen. Lisa Murkowski of Alaska in 2012 — called the Fairness in Disclosure of Evidence Act — that would require federal prosecutors to disclose any evidence ‘that may reasonably appear to be favorable to the defendant in a criminal prosecution.'” (The Department currently follows a less demanding standard on disclosure of adverse evidence). Kozinski also “favors abolishing state judicial elections, among other recommendations.” [Jacob Gershman, WSJ Law Blog; Alex Kozinski, “Preface,” Georgetown Law Journal Annual Review of Criminal Procedure 2015]
“Recently, the consumer protection unit of the Orange County (CA) District Attorney’s Office filed suit against Unilever, parent company of AXE, accusing the company of fudging the packaging of its male grooming products.” The charges, which were filed concomitantly with a proposed settlement the same day, do not claim that Axe misstated the quantity of product contained by weight, but say its packaging employed “false bottoms, false sidewalls, false lids or false coverings” which “serve no legitimate purpose and mislead consumers as to the amount of product contained in the containers. …Apparently, the DA has never purchased a bag of potato chips.” It is unclear from the coverage whether Orange County consumers were constrained from ascertaining how much product was in one of the packages by, say, lifting it to see how heavy it was, or looking at the number of ounces on the label. In settlement (the same day) of the charges, the company agreed to pay $750,000 to Orange County and $24,000 to its D.A.’s office, and to take out ads in various California newspapers with $3 coupons good off a consumer purchase of Axe. [Nick Farr, Abnormal Use; Orange County Register]
The Orange County district attorney’s office under Tony Rackauckas is emerging as an Overlawyered favorite, having knocked an impressive $16 million out of Toyota in the sudden-acceleration affair even though the cars in question do not suddenly accelerate, of which $4 million went to a locally influential tort attorney; the office has also kept mum about arrangements it has with tort attorneys. And of course Rackauckas’s office has lately been embroiled in one of the nation’s most prominent scandals of prosecutorial abuse (with retaliation angle).
P.S. Oh, and here is coverage of “slack fill” class action suits organized by private lawyers against both Unilever/Axe and competitor Procter & Gamble, confirming that this wasn’t exactly a solitary frolic on the county’s part. More: Amy Alkon.