Wednesday, March 18, 2015

"some of the most lethal terrorists are prosecutors"

Norm Pattis talks about prosecutors employing dark arts at trial:
Trial, some say, is a search for the truth. That’s specious tomfoolery. In fact, trial, at least a criminal trial, is guerilla warfare. Some of the most lethal terrorists are prosecutors. Fear and the dark arts of intimidation are common tools.
Fear and intimidation, indeed. Only a small number of criminal cases ever go to trial because of those dark arts. Who would risk being tried on the most severe of charges and a much longer sentence when the plea agreement offers lesser charges and a shorter sentence? After seeing the prosecution's enormous power to force the outcome it wants, not many will risk a trial.
The dark arts of witness intimidation pit prosecutors against defense counsel. The accused wants to avoid prison and a felony record. The government wants testimony sufficient to convict as many as possible. 
A grant of immunity from prosecution is a homerun for the defense, but the government doesn’t like giving free passes to those it believes to have broken the law. For one thing, jurors are wary of immunity agreements, especially in white-collar cases. “How come he gets to break the law with impunity?” are not the words a prosecutor wants to hear about a witness. 
So an elaborate charade is constructed, a game designed and intended to keep jurors from learning as much of the truth as possible. The government enters into cooperation agreements with those prepared to testify against co-conspirators. 
Here’s how it works: A witness pleads guilty, typically to reduced charges. But his sentence is deferred until after the main event. ... 
Deferring sentence permits the government to deny that the witness has been promised leniency for his cooperation. The witness is reduced merely to saying that he hopes the judge will take into account his assistance to the government when his own sentencing occurs.
Read the whole thing. Pattis outlines an actual trial to show how it works.
In other words, the government, not the jury, decides what is and is not true; those who disagree with Uncle Sam get clobbered.
When the prosecution routinely forces a plea agreement and bypasses any trial, the prosecution rarely has to prove its case.

So, yes: the prosecution decides what is true.

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