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Judge Mandates Special Prosecutor Appointed in Jussie Smollett-Kim Foxx Scandal
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From NBC News:

Jussie Smollett case: Special prosecutor to investigate State’s Attorney Kim Foxx’s handling of matter

The appointment means Smollett could still face criminal charges.

June 21, 2019, 8:17 AM PDT / Updated June 21, 2019, 11:19 AM PDT
By Samira Puskar and David K. Li

CHICAGO — A judge ruled Friday that a special prosecutor needs to investigate Cook County State’s Attorney Kimberly Foxx’s handling of the Jussie Smollett case and that the “Empire” actor should be re-examined for possible criminal charges.

Cook County Circuit Court Judge Michael Toomin ruled in favor of Sheila O’Brien, a former appellate judge who had called for a special prosecutor to find why charges were dropped against Smollett over his allegedly false report that he was the victim of a racist, homophobic attack.

“The unprecedented irregularities identified in this case warrants the appointment of independent counsel to restore the public’s confidence in the integrity of our criminal justice system,” wrote Toomin, who is presiding judge over the Cook County Juvenile Justice Division.

Not only should a special counsel take a fresh look at Foxx’s actions, but the independent prosecutor should look at “all aspects of the case” and “if reasonable grounds exist to further prosecute Smollett, in the interest of justice, the special prosecutor may take such action as may be appropriate,” Toomin wrote.

While Smollett was indicted for allegedly making a false police report, he was never put on trial. So double-jeopardy protections against being prosecuted after an acquittal would not apply here.

George Soros’s money helped elect Foxx in 2016.

 
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  1. Call CNN. Get Toomin together with Toobin.

  2. Steve,

    I wondered what type of person Judge Sheila O’Brien is. After a little internet snooping I’ve concurred with the judgement of “19th Ward Chicago” that “She is one bad-ass chick”.

  3. I hear that Mueller guy is free.

  4. “how I dearly wish I was not here…”

    • Replies: @Ron Mexico
    That is Morrissey, correct? The song escapes me.
  5. “Bonfire” by Tom Wolfe:
    “You got any idea what the DA’d do if you just walked in and said, ‘Yeah, it was me and my girlfirend, who lives on…’ They’d devour you–de-vour you.”
    “why?”
    “The case is already a political football…”

  6. Again, re: Jessie Smollet. I couldn’t care less. Amusement. Shiny, flashy gadgets. That’s all.

    • Replies: @MikeW
    Yes. Smollett is a colossal idiot and sociopath, but his career is toast and that's good enough. People need to put down the torches and pitchforks and move on to the next celebrity clown.
    , @guest
    No, no. No, no, no, no.

    If it were just a matter of him tying up police resources because he made up something to cover a fight with a street hustler, whatever. But what he did could have actually set off riots. You know that, right?

    This guy warped the national political dialogue for a short while and wasted Lord knows how many city resources. But that's just a little part of it. He was also taunting the gods of Race War. One doesn't do that.
  7. @jlee000
    "how I dearly wish I was not here..."

    That is Morrissey, correct? The song escapes me.

    • Replies: @SFG
    "Everyday is like Sunday."

    https://www.youtube.com/watch?v=d0LeL9BUPtA

    You know you've gotten old when a Morrissey video makes you feel sad for a completely different reason than intended.

  8. @Ron Mexico
    That is Morrissey, correct? The song escapes me.

    “Everyday is like Sunday.”

    You know you’ve gotten old when a Morrissey video makes you feel sad for a completely different reason than intended.

    • Replies: @Ron Mexico
    "Have a go Merchant"
  9. The Smollett case was a travesty and miscarriage of justice. Nonetheless, criminal prosecution is an Executive branch function and the Judicial branch has no business ordering a Special Prosecutor be appointed to reevaluate the filing of criminal charges against a defendant. Period.

    • Replies: @Jack D
    Sure it does. It's called "checks and balances". When one branch crosses the line , the other branches call them on it. Foxx recused herself (the right thing to do because she was clearly not a disinterested party) but recusing "herself" really means recusing her entire office (and therefore required a special prosecutor) because everyone who works there depends on her for their job. But then she appointed her flunky (and it was abundantly clear that he was her flunky and continued to take orders from her ) to be the "acting state's attorney", which is a non-existent office. This is the kind of stuff that goes on in places like Communist China and Chicago, but we are supposed to have rule of law in the US and the only way you can maintain rule of law is through checks and balances.
    , @Jonathan Mason

    The Smollett case was a travesty and miscarriage of justice. Nonetheless, criminal prosecution is an Executive branch function and the Judicial branch has no business ordering a Special Prosecutor
     
    We are privileged to have such eminence chipping in to our online discussion.

    Welcome, Mr. Chief Justice but a spot of advice--you might want to use a pen name.

    , @guest
    Who told you prosecutorial discretion is an Absolute Power?

    I, for one, would not appreciate being ruled over by DA warlords.
    , @Anon
    What do you say about a prosecutor who says he will no longer go after criminals who commit less than 750 dollars worth of theft, as Houston's prosecutor says he's going to do? To put it bluntly, a mob of blacks could go into a store and strip it of its entire stock of goods--destroying it as a business--and get away with it as long as each black took less than 750 dollars' worth of goods. Blacks could line Houston's streets and mug every passerby and get away with as long as they took less than 750 dollars. Since most people don't carry anywhere near that amount of cash, it means they could get away with a constant wave of mugging.

    If you take 500 dollars in one mugging incident, that's just one crime and it won't be charged against you. One hour later, if you take another 500 dollars off another guy, that's a separate incident. They are not added together in the eyes of the law to total 1000 dollars- and become prosecutable--because they are considered different incidents with different victims.

    In circumstances like this, the glue that holds civil society would literally fall apart. All business would go under, and no one would be safe walking down the street. You cannot run a society like this. Even primitive societies recognize ownership of personal property and punish thieves.

    But what do you do about a prosecutor who refuses to punish thieves and thus will destroy civil society by his actions? There needs to be a mechanism to get rid of prosecutors who do not properly enforce the law. A special prosecutor is going to be necessary. By the way, there's nothing in the Constitution that says you can't appoint a special prosecutor to investigate a state's attorney. If you say there is, show me the relevant passage.

    Hey, if the Supreme Court says it's legal to have a special prosecutor investigate the President, then it darn well should be legal to have a special prosecutor investigate some random state's attorney. A state's attorney doesn't get some mysterious super-special Constitutional protection that we deny the President of the United States.
    , @Ted Bell
    I mostly agree. The courts have no authority to decide which members of the public are to be charged with crimes. I don't like it, but Smollett's charges were dropped. He was told he was a free man, and the government shouldn't have any right to change that, without evidence of additional crimes.

    But, Jack D is also correct about oversight. It's perfectly reasonable for the judiciary to call foul on the executive branch. As such, it's entirely correct for the judge to appoint a special prosecutor against Foxx. At this point, it's she, not Smollett, who should be facing a criminal investigation. The debts owed to society for Smollett's actions were transferred to Foxx when she let him go, while freely admitting that she thought he was provably guilty. I say, throw the book at her, for prosecutorial misconduct, AND whatever crimes they think they can prove against Smollett. Putting her in jail does far more to fix the problem than putting him in jail would.
  10. @SFG
    "Everyday is like Sunday."

    https://www.youtube.com/watch?v=d0LeL9BUPtA

    You know you've gotten old when a Morrissey video makes you feel sad for a completely different reason than intended.

    “Have a go Merchant”

  11. Soros was successful in transforming many local state’s attorney offices at the top. It’s interesting he hasn’t tried the same with Sheriffs or Police Departments, the latter being vulnerable to indirect infiltration through mayoral appointments.

    I suspect this has to do with unions, which maintain a modicum of independence from billionaires. This is why Soros attacks law enforcement through the media.

    • Replies: @Jim bob Lassiter
    He's done it with the mayor and the chief of police (no unions though) in a city I used to live in.
    , @Art Deco
    The law and protective services attract people with dissimilar characteristics. What Soros wants to do goes against the grain of what police officers want to do. With prosecutor's offices, you just swap out one set of lawyers for a different set of lawyers more to your liking. We have mandatory minimums because the insider's game between prosecutor, public defender, and judge will produce nonsense results if a certain amount of discretion is not removed from the equation. (My favorite example is a scandal which erupted in 1989, when it was discovered that a protege of the Speaker of the House working as the staff director of a consequential committee within the Democratic caucus had been sent up for a violent crime in 1973. A judge in Virginia had sentenced him to two years in a county jail for a peculiarly brutal act of attempted murder the victim of which required months of rehabilitation care. Many years later, she landed a job on Capitol Hill and discovered he was working there. Jim Wright's daughter was an in-law of his and had gotten her father to send letters to the judge and promise a job on his release. Morton Kondracke was one of the few who wrote about the case who remarked that the most scandalous figure in the whole fandango was the judge, whose name was never published).
  12. Ha, a personal jibe…but I’m not that sensitive or I wouldn’t be here. 😉

    1. The song and video are supposed to be melancholy because the seaside town has seen better days. (Original intent)
    2. It’s filmed in the 80s, so it makes me feel old. (Universal)
    3. Compared to what parts of America (and I imagine England) now look like, it doesn’t look so bad. (iSteveish)

    • Replies: @Bill Jones
    "Ha, a personal jibe…but I’m not that sensitive or I wouldn’t be here. 😉"

    Ah, I use my attendance at Sailers Soiree as proof of my SJW credentials.I guess we move in different circles.
  13. @SFG
    Ha, a personal jibe...but I'm not that sensitive or I wouldn't be here. ;)

    1. The song and video are supposed to be melancholy because the seaside town has seen better days. (Original intent)
    2. It's filmed in the 80s, so it makes me feel old. (Universal)
    3. Compared to what parts of America (and I imagine England) now look like, it doesn't look so bad. (iSteveish)

    “Ha, a personal jibe…but I’m not that sensitive or I wouldn’t be here. 😉”

    Ah, I use my attendance at Sailers Soiree as proof of my SJW credentials.I guess we move in different circles.

  14. I imagine the Obamas ordered that Foxx make this go away and she complied. It would be interesting to subpoena text messages.

  15. @JRoberts
    The Smollett case was a travesty and miscarriage of justice. Nonetheless, criminal prosecution is an Executive branch function and the Judicial branch has no business ordering a Special Prosecutor be appointed to reevaluate the filing of criminal charges against a defendant. Period.

    Sure it does. It’s called “checks and balances”. When one branch crosses the line , the other branches call them on it. Foxx recused herself (the right thing to do because she was clearly not a disinterested party) but recusing “herself” really means recusing her entire office (and therefore required a special prosecutor) because everyone who works there depends on her for their job. But then she appointed her flunky (and it was abundantly clear that he was her flunky and continued to take orders from her ) to be the “acting state’s attorney”, which is a non-existent office. This is the kind of stuff that goes on in places like Communist China and Chicago, but we are supposed to have rule of law in the US and the only way you can maintain rule of law is through checks and balances.

    • Replies: @JRoberts
    I'm sorry, but there's nothing in the Constitutional structure of checks and balances that justifies one branch of government assuming a role that is outside its scope and explicitly delegated to another branch of government. The argument you advanced is precisely the type of muddled thinking that has led the US to the clown circus of House committees issuing subpoenas to members of the Trump adminstration and threating to jail them if they don't comply.

    This limiting principle is particularly important in precisely this type of case. The credibility of the judicial branch rests entirely on its role as a neutral arbiter. The judicial branch cannot claim to be a neutral aribiter of charges that arise out of a prosecutorial process that originated with the judicial branch. I will vote to overturn any conviction and vacate any charges that arise from this process.

    Prosecutorial discretion is absolute and not subject to challenge by the judicial branch. The checks and balances available under the Constitution are applicable to the prosecutor, not the defendant. If, as it appears, Foxx violated policy by improperly appointing an acting state's attorney, then she should be subject to appropriate penalties. But as distateful as it is, Smollett has to walk.

    Before you go all keyboard Rambo on this, take the time to consider that the American legal system, including the judiciary, is largely controlled by the political left. Giving left-wing activist judges the authority to appoint a Special Counsel to initiate criminal investigations, which they will subsequently adjudicate, is an exceptionally poor idea. This is a leap onto the slippery slope that leads to a banana republic.

  16. @Daniel H
    Again, re: Jessie Smollet. I couldn't care less. Amusement. Shiny, flashy gadgets. That's all.

    Yes. Smollett is a colossal idiot and sociopath, but his career is toast and that’s good enough. People need to put down the torches and pitchforks and move on to the next celebrity clown.

    • Replies: @International Jew
    True, but Foxx needs to answer, and an investigation of Foxx could lead to the Obamas.
    , @Pericles

    Yes. Smollett is a colossal idiot and sociopath, but his career is toast and that’s good enough.

     

    Did he even get fired from his show?
    , @guest
    Not good enough. It's not even on his criminal record. He was INDICTED on 16 COUNTS and they couldn't even force him to plead guilty. That's an embarrassment to all of American Civilization.
    , @JMcG
    Grind him into dust. It’s what they’d do to me or you. Suppose the cops had turned up a couple of white suspects. Do you think that creep Smollett would have lifted one carefully manicured finger to protest the injustice he launched?You might hate the game, but we have to play.
  17. @Hoyt Thorpe
    Soros was successful in transforming many local state's attorney offices at the top. It's interesting he hasn't tried the same with Sheriffs or Police Departments, the latter being vulnerable to indirect infiltration through mayoral appointments.

    I suspect this has to do with unions, which maintain a modicum of independence from billionaires. This is why Soros attacks law enforcement through the media.

    He’s done it with the mayor and the chief of police (no unions though) in a city I used to live in.

  18. @Hoyt Thorpe
    Soros was successful in transforming many local state's attorney offices at the top. It's interesting he hasn't tried the same with Sheriffs or Police Departments, the latter being vulnerable to indirect infiltration through mayoral appointments.

    I suspect this has to do with unions, which maintain a modicum of independence from billionaires. This is why Soros attacks law enforcement through the media.

    The law and protective services attract people with dissimilar characteristics. What Soros wants to do goes against the grain of what police officers want to do. With prosecutor’s offices, you just swap out one set of lawyers for a different set of lawyers more to your liking. We have mandatory minimums because the insider’s game between prosecutor, public defender, and judge will produce nonsense results if a certain amount of discretion is not removed from the equation. (My favorite example is a scandal which erupted in 1989, when it was discovered that a protege of the Speaker of the House working as the staff director of a consequential committee within the Democratic caucus had been sent up for a violent crime in 1973. A judge in Virginia had sentenced him to two years in a county jail for a peculiarly brutal act of attempted murder the victim of which required months of rehabilitation care. Many years later, she landed a job on Capitol Hill and discovered he was working there. Jim Wright’s daughter was an in-law of his and had gotten her father to send letters to the judge and promise a job on his release. Morton Kondracke was one of the few who wrote about the case who remarked that the most scandalous figure in the whole fandango was the judge, whose name was never published).

    • Replies: @David In TN
    I remember the story. His name was John Paul Mack and he was the chief of staff to the Speaker of the House, Jim Wright. The uproar caused Mack to resign, despite being defended by some prominent Democrats as having "reformed." I remember Mark Shields on Capital Gang talking about how sorry he was for John Mack whom he liked very much.

    An oddity was Mack had a better job in 1989 than he would have had if he hadn't brutally attacked and almost killed the woman.

    A few weeks later the Speaker resigned. He got most of the blame. I don't recall the judge being criticized. The affair then blew over and was largely forgotten.
  19. @JRoberts
    The Smollett case was a travesty and miscarriage of justice. Nonetheless, criminal prosecution is an Executive branch function and the Judicial branch has no business ordering a Special Prosecutor be appointed to reevaluate the filing of criminal charges against a defendant. Period.

    The Smollett case was a travesty and miscarriage of justice. Nonetheless, criminal prosecution is an Executive branch function and the Judicial branch has no business ordering a Special Prosecutor

    We are privileged to have such eminence chipping in to our online discussion.

    Welcome, Mr. Chief Justice but a spot of advice–you might want to use a pen name.

    • Replies: @JudgeSmails

    Welcome, Mr. Chief Justice but a spot of advice–you might want to use a pen name.
     
    Having a much lower profile, JudgeSmails has no qualms not using a nom de plume or a nom de guerre.
    , @JRoberts
    You forget that I have lifetime tenure. I'm untouchable.
  20. Demonstrating, once again, that given a brush and a bucket of paint, black people–even supposedly intelligent ones–will paint themselves into a corner.

    The State Attorney General ruled that the Smollett incident was insignificant and did not warrant any legal action.

    So then, since American law is determined by precedent, are we to assume, the next time a black man stumbles down the sidewalk claiming that he was attacked by two white hooligans, that he is staging a harmless prank?

    Somehow I think, “Oh mister black man, you can’t fool us twice with that one. We know it wasn’t two white guys, it was your friends” wouldn’t go over too well with the black community or their revered shake-down artist spokesmen.

    In every situation that arises a black will aggressive pursue what he believes to be to his immediate benefit, only to find that he is blindsided by the ultimate, general-case implications of his greed and selfishness waiting for him somewhere down the road.

    One measure of Justice, with a capital J, is being held to your own standards.

  21. The other day I was sitting having lunch in a Greek diner, when I received a court order from Hawaiian Federal Judge, forbidding me to order a side of tzatziki along with my spanakopita. I guess it violates civil rights or something, or maybe it’s just because Trump likes tzatziki, who really knows any more. The kitchen staff dutifully complied. Instead of bringing me lunch, I had to sit through a diversity seminar, then go visit a holocaust museum — and it was a different holocaust museum from the one the diner was in.

    I guess we don’t have any realistic well-understood procedures any more, just orders from judges, which are generally fine so long as they are against Nazis or something. I was not aware that we are still at war with Nazis. I guess a judge ordered that, too. Nazis of course have not actually existed since 1945, but apparently our President is a Nazi who was not actually elected, so Hawaiian Federal Judge can be president instead.

    This judge with the Smollett thing must have ordered the wrong order by mistake. Not to worry, I’m sure it’ll all be reversed on double-secret appeal.

  22. @Jack D
    Sure it does. It's called "checks and balances". When one branch crosses the line , the other branches call them on it. Foxx recused herself (the right thing to do because she was clearly not a disinterested party) but recusing "herself" really means recusing her entire office (and therefore required a special prosecutor) because everyone who works there depends on her for their job. But then she appointed her flunky (and it was abundantly clear that he was her flunky and continued to take orders from her ) to be the "acting state's attorney", which is a non-existent office. This is the kind of stuff that goes on in places like Communist China and Chicago, but we are supposed to have rule of law in the US and the only way you can maintain rule of law is through checks and balances.

    I’m sorry, but there’s nothing in the Constitutional structure of checks and balances that justifies one branch of government assuming a role that is outside its scope and explicitly delegated to another branch of government. The argument you advanced is precisely the type of muddled thinking that has led the US to the clown circus of House committees issuing subpoenas to members of the Trump adminstration and threating to jail them if they don’t comply.

    This limiting principle is particularly important in precisely this type of case. The credibility of the judicial branch rests entirely on its role as a neutral arbiter. The judicial branch cannot claim to be a neutral aribiter of charges that arise out of a prosecutorial process that originated with the judicial branch. I will vote to overturn any conviction and vacate any charges that arise from this process.

    Prosecutorial discretion is absolute and not subject to challenge by the judicial branch. The checks and balances available under the Constitution are applicable to the prosecutor, not the defendant. If, as it appears, Foxx violated policy by improperly appointing an acting state’s attorney, then she should be subject to appropriate penalties. But as distateful as it is, Smollett has to walk.

    Before you go all keyboard Rambo on this, take the time to consider that the American legal system, including the judiciary, is largely controlled by the political left. Giving left-wing activist judges the authority to appoint a Special Counsel to initiate criminal investigations, which they will subsequently adjudicate, is an exceptionally poor idea. This is a leap onto the slippery slope that leads to a banana republic.

    • Replies: @Almost Missouri
    As you point out in your first paragraph, the Left is already hauling us down the "slippery slope that leads to a banana republic" at breakneck speed, with full throated approval from the cultural heights. Meanwhile, conservatives commend themselves on their Marquess of Queensberry principles, which in practice means that conservatives lose every political and cultural fight to the Left, and hence actually accelerates banana republicness more than fighting back would have.

    "If, as it appears, Foxx violated policy by improperly appointing an acting state’s attorney, then she should be subject to appropriate penalties."
     
    Cashiering Foxx, who is far more harmful than Smollett, would be the better outcome, but I see no reason that both cannot suffer consequences.

    "Prosecutorial discretion is absolute"
     
    I frequently hear jurists say,

    "[x authority/right/privilege] is absolute",
     
    or alternatively,

    "no authority/right/privilege is absolute"
     
    I don't presume to know the law of these matters better than our legal superiors, but if there are certain authorities/rights/privileges that are absolute, it would be nice if we could get a list of them so we know what they are. Also, it is a little odd that what we're told is an "absolute" authority/right/privilege never seems to include things like free speech or the right of self defense, which are actually in the Bill of Rights, but always seem to include random, obscure authorities like prosecutorial discretion, which is mentioned nowhere in the Constitution.
    , @Almost Missouri
    By the way, would you resolve one of the great mysteries of 2012: whether you switched your vote in National Federation of Independent Business v. Sebelius, and if so, why?
    , @JMcG
    We have been a banana republic for some time. See the history of the Clinton family over the past thirty years.
  23. @Jonathan Mason

    The Smollett case was a travesty and miscarriage of justice. Nonetheless, criminal prosecution is an Executive branch function and the Judicial branch has no business ordering a Special Prosecutor
     
    We are privileged to have such eminence chipping in to our online discussion.

    Welcome, Mr. Chief Justice but a spot of advice--you might want to use a pen name.

    Welcome, Mr. Chief Justice but a spot of advice–you might want to use a pen name.

    Having a much lower profile, JudgeSmails has no qualms not using a nom de plume or a nom de guerre.

  24. @MikeW
    Yes. Smollett is a colossal idiot and sociopath, but his career is toast and that's good enough. People need to put down the torches and pitchforks and move on to the next celebrity clown.

    True, but Foxx needs to answer, and an investigation of Foxx could lead to the Obamas.

  25. While Smollett was indicted for allegedly making a false police report, he was never put on trial. So double-jeopardy protections against being prosecuted after an acquittal would not apply here.

    Jeopardy attaches before trial.

    • Replies: @JRoberts
    As implied by the name, the general rule of double jeopardy is that the defendant must be in legal jeopardy before the prohibition against double jeopardy attaches. Typically it attaches when a jury is sworn in for the trial. Their wording is a bit awkward, but it's substantially correct.

    In this case the charges were dropped almost immediately so it's almost certain that jeopardy did not attach. I would have no issue if a new prosecutor decided to bring charges, or even if Foxx changed her mind and brought the charges again. But for the reasons outlined above it is not acceptable for a judge to order a special prosecutor to reopen an investigation.

    IMO, jeopardy should attach at the moment the DA offers a plea bargain because that is the precise moment at which a defendant faces jeopardy, but that's not the state of the law. If you turn down a plea bargain deal you are going to trial, and everyone knows it. Like many other criminal law rules, this rule allows prosecutors to overcharge defendants in the hope of extracting a harsher plea bargain.

    This case was a case in point of overcharging. Smollett was charged with 16 felony counts, which was grossly excessive for the crime he committed.
  26. Smollett could have started race riots across the country, killing hundreds and costing billions. He should get at least 20 years in prison to discourage other hoaxers.

    • Agree: Cortes, 95Theses
  27. @MikeW
    Yes. Smollett is a colossal idiot and sociopath, but his career is toast and that's good enough. People need to put down the torches and pitchforks and move on to the next celebrity clown.

    Yes. Smollett is a colossal idiot and sociopath, but his career is toast and that’s good enough.

    Did he even get fired from his show?

  28. @ben tillman

    While Smollett was indicted for allegedly making a false police report, he was never put on trial. So double-jeopardy protections against being prosecuted after an acquittal would not apply here.
     
    Jeopardy attaches before trial.

    As implied by the name, the general rule of double jeopardy is that the defendant must be in legal jeopardy before the prohibition against double jeopardy attaches. Typically it attaches when a jury is sworn in for the trial. Their wording is a bit awkward, but it’s substantially correct.

    In this case the charges were dropped almost immediately so it’s almost certain that jeopardy did not attach. I would have no issue if a new prosecutor decided to bring charges, or even if Foxx changed her mind and brought the charges again. But for the reasons outlined above it is not acceptable for a judge to order a special prosecutor to reopen an investigation.

    IMO, jeopardy should attach at the moment the DA offers a plea bargain because that is the precise moment at which a defendant faces jeopardy, but that’s not the state of the law. If you turn down a plea bargain deal you are going to trial, and everyone knows it. Like many other criminal law rules, this rule allows prosecutors to overcharge defendants in the hope of extracting a harsher plea bargain.

    This case was a case in point of overcharging. Smollett was charged with 16 felony counts, which was grossly excessive for the crime he committed.

  29. @Jonathan Mason

    The Smollett case was a travesty and miscarriage of justice. Nonetheless, criminal prosecution is an Executive branch function and the Judicial branch has no business ordering a Special Prosecutor
     
    We are privileged to have such eminence chipping in to our online discussion.

    Welcome, Mr. Chief Justice but a spot of advice--you might want to use a pen name.

    You forget that I have lifetime tenure. I’m untouchable.

    • Replies: @guest
    Impeachment, dear sir. Impeachment.

    Or possibly a pillow over the face.
  30. @MikeW
    Yes. Smollett is a colossal idiot and sociopath, but his career is toast and that's good enough. People need to put down the torches and pitchforks and move on to the next celebrity clown.

    Not good enough. It’s not even on his criminal record. He was INDICTED on 16 COUNTS and they couldn’t even force him to plead guilty. That’s an embarrassment to all of American Civilization.

  31. @Daniel H
    Again, re: Jessie Smollet. I couldn't care less. Amusement. Shiny, flashy gadgets. That's all.

    No, no. No, no, no, no.

    If it were just a matter of him tying up police resources because he made up something to cover a fight with a street hustler, whatever. But what he did could have actually set off riots. You know that, right?

    This guy warped the national political dialogue for a short while and wasted Lord knows how many city resources. But that’s just a little part of it. He was also taunting the gods of Race War. One doesn’t do that.

  32. @JRoberts
    The Smollett case was a travesty and miscarriage of justice. Nonetheless, criminal prosecution is an Executive branch function and the Judicial branch has no business ordering a Special Prosecutor be appointed to reevaluate the filing of criminal charges against a defendant. Period.

    Who told you prosecutorial discretion is an Absolute Power?

    I, for one, would not appreciate being ruled over by DA warlords.

    • Agree: Almost Missouri
  33. @JRoberts
    You forget that I have lifetime tenure. I'm untouchable.

    Impeachment, dear sir. Impeachment.

    Or possibly a pillow over the face.

  34. Shermy [AKA "Karreem"] says:

    So, in the movie clip Steve Shared, “The Last Black Man in San Francisco,” Danny Glover tells us that black folks were responsible for our west coast shipping industry.

    I propose we call this rewriting of history, “getting Hamiltoned.”

    At the rate we’re moving “The Old Negro Space Program” will transform into official history:

  35. @JRoberts
    I'm sorry, but there's nothing in the Constitutional structure of checks and balances that justifies one branch of government assuming a role that is outside its scope and explicitly delegated to another branch of government. The argument you advanced is precisely the type of muddled thinking that has led the US to the clown circus of House committees issuing subpoenas to members of the Trump adminstration and threating to jail them if they don't comply.

    This limiting principle is particularly important in precisely this type of case. The credibility of the judicial branch rests entirely on its role as a neutral arbiter. The judicial branch cannot claim to be a neutral aribiter of charges that arise out of a prosecutorial process that originated with the judicial branch. I will vote to overturn any conviction and vacate any charges that arise from this process.

    Prosecutorial discretion is absolute and not subject to challenge by the judicial branch. The checks and balances available under the Constitution are applicable to the prosecutor, not the defendant. If, as it appears, Foxx violated policy by improperly appointing an acting state's attorney, then she should be subject to appropriate penalties. But as distateful as it is, Smollett has to walk.

    Before you go all keyboard Rambo on this, take the time to consider that the American legal system, including the judiciary, is largely controlled by the political left. Giving left-wing activist judges the authority to appoint a Special Counsel to initiate criminal investigations, which they will subsequently adjudicate, is an exceptionally poor idea. This is a leap onto the slippery slope that leads to a banana republic.

    As you point out in your first paragraph, the Left is already hauling us down the “slippery slope that leads to a banana republic” at breakneck speed, with full throated approval from the cultural heights. Meanwhile, conservatives commend themselves on their Marquess of Queensberry principles, which in practice means that conservatives lose every political and cultural fight to the Left, and hence actually accelerates banana republicness more than fighting back would have.

    “If, as it appears, Foxx violated policy by improperly appointing an acting state’s attorney, then she should be subject to appropriate penalties.”

    Cashiering Foxx, who is far more harmful than Smollett, would be the better outcome, but I see no reason that both cannot suffer consequences.

    “Prosecutorial discretion is absolute”

    I frequently hear jurists say,

    “[x authority/right/privilege] is absolute”,

    or alternatively,

    no authority/right/privilege is absolute”

    I don’t presume to know the law of these matters better than our legal superiors, but if there are certain authorities/rights/privileges that are absolute, it would be nice if we could get a list of them so we know what they are. Also, it is a little odd that what we’re told is an “absolute” authority/right/privilege never seems to include things like free speech or the right of self defense, which are actually in the Bill of Rights, but always seem to include random, obscure authorities like prosecutorial discretion, which is mentioned nowhere in the Constitution.

  36. @JRoberts
    I'm sorry, but there's nothing in the Constitutional structure of checks and balances that justifies one branch of government assuming a role that is outside its scope and explicitly delegated to another branch of government. The argument you advanced is precisely the type of muddled thinking that has led the US to the clown circus of House committees issuing subpoenas to members of the Trump adminstration and threating to jail them if they don't comply.

    This limiting principle is particularly important in precisely this type of case. The credibility of the judicial branch rests entirely on its role as a neutral arbiter. The judicial branch cannot claim to be a neutral aribiter of charges that arise out of a prosecutorial process that originated with the judicial branch. I will vote to overturn any conviction and vacate any charges that arise from this process.

    Prosecutorial discretion is absolute and not subject to challenge by the judicial branch. The checks and balances available under the Constitution are applicable to the prosecutor, not the defendant. If, as it appears, Foxx violated policy by improperly appointing an acting state's attorney, then she should be subject to appropriate penalties. But as distateful as it is, Smollett has to walk.

    Before you go all keyboard Rambo on this, take the time to consider that the American legal system, including the judiciary, is largely controlled by the political left. Giving left-wing activist judges the authority to appoint a Special Counsel to initiate criminal investigations, which they will subsequently adjudicate, is an exceptionally poor idea. This is a leap onto the slippery slope that leads to a banana republic.

    By the way, would you resolve one of the great mysteries of 2012: whether you switched your vote in National Federation of Independent Business v. Sebelius, and if so, why?

  37. Anon[304] • Disclaimer says:
    @JRoberts
    The Smollett case was a travesty and miscarriage of justice. Nonetheless, criminal prosecution is an Executive branch function and the Judicial branch has no business ordering a Special Prosecutor be appointed to reevaluate the filing of criminal charges against a defendant. Period.

    What do you say about a prosecutor who says he will no longer go after criminals who commit less than 750 dollars worth of theft, as Houston’s prosecutor says he’s going to do? To put it bluntly, a mob of blacks could go into a store and strip it of its entire stock of goods–destroying it as a business–and get away with it as long as each black took less than 750 dollars’ worth of goods. Blacks could line Houston’s streets and mug every passerby and get away with as long as they took less than 750 dollars. Since most people don’t carry anywhere near that amount of cash, it means they could get away with a constant wave of mugging.

    If you take 500 dollars in one mugging incident, that’s just one crime and it won’t be charged against you. One hour later, if you take another 500 dollars off another guy, that’s a separate incident. They are not added together in the eyes of the law to total 1000 dollars- and become prosecutable–because they are considered different incidents with different victims.

    In circumstances like this, the glue that holds civil society would literally fall apart. All business would go under, and no one would be safe walking down the street. You cannot run a society like this. Even primitive societies recognize ownership of personal property and punish thieves.

    But what do you do about a prosecutor who refuses to punish thieves and thus will destroy civil society by his actions? There needs to be a mechanism to get rid of prosecutors who do not properly enforce the law. A special prosecutor is going to be necessary. By the way, there’s nothing in the Constitution that says you can’t appoint a special prosecutor to investigate a state’s attorney. If you say there is, show me the relevant passage.

    Hey, if the Supreme Court says it’s legal to have a special prosecutor investigate the President, then it darn well should be legal to have a special prosecutor investigate some random state’s attorney. A state’s attorney doesn’t get some mysterious super-special Constitutional protection that we deny the President of the United States.

    • Replies: @ben tillman

    What do you say about a prosecutor who says he will no longer go after criminals who commit less than 750 dollars worth of theft, as Houston’s prosecutor says he’s going to do?
     
    Dallas, not Houston, thanks to prosecutor Limbo Creuzot, the only Democrat I voted for. I won't make that mistake again.

    Note: I call him "Limbo Creuzot" because my only interaction with him was in the course of his party doing the limbo in the front room of The Gingerman in Dallas 25 years ago.

    , @Prof. Woland

    What do you say about a prosecutor who says he will no longer go after criminals who commit less than 750 dollars worth of theft, as Houston’s prosecutor says he’s going to do?
     
    It is also implied that the owner of the store who was ripped off also does not have the legal or moral authority to protect himself or his property / livelihood a la Oberlin. The state monopolizes violence but if they chose not to use it because of the race or creed of the person's being harmed, they directly contribute towards the situation. In fact they explicitly make clear you cannot touch these people. Not a lawyer, but this was one of the prime reasons the Federal government enacted the lynching laws. There would be hundreds of witnesses to lynching but the local authorities would do absolutely nothing. Roughing up a store clerk is not the equivalent of lynching but point a gun and shooting them certainly is, and how many times a day does that occur?
  38. @JRoberts
    The Smollett case was a travesty and miscarriage of justice. Nonetheless, criminal prosecution is an Executive branch function and the Judicial branch has no business ordering a Special Prosecutor be appointed to reevaluate the filing of criminal charges against a defendant. Period.

    I mostly agree. The courts have no authority to decide which members of the public are to be charged with crimes. I don’t like it, but Smollett’s charges were dropped. He was told he was a free man, and the government shouldn’t have any right to change that, without evidence of additional crimes.

    But, Jack D is also correct about oversight. It’s perfectly reasonable for the judiciary to call foul on the executive branch. As such, it’s entirely correct for the judge to appoint a special prosecutor against Foxx. At this point, it’s she, not Smollett, who should be facing a criminal investigation. The debts owed to society for Smollett’s actions were transferred to Foxx when she let him go, while freely admitting that she thought he was provably guilty. I say, throw the book at her, for prosecutorial misconduct, AND whatever crimes they think they can prove against Smollett. Putting her in jail does far more to fix the problem than putting him in jail would.

  39. @Anon
    What do you say about a prosecutor who says he will no longer go after criminals who commit less than 750 dollars worth of theft, as Houston's prosecutor says he's going to do? To put it bluntly, a mob of blacks could go into a store and strip it of its entire stock of goods--destroying it as a business--and get away with it as long as each black took less than 750 dollars' worth of goods. Blacks could line Houston's streets and mug every passerby and get away with as long as they took less than 750 dollars. Since most people don't carry anywhere near that amount of cash, it means they could get away with a constant wave of mugging.

    If you take 500 dollars in one mugging incident, that's just one crime and it won't be charged against you. One hour later, if you take another 500 dollars off another guy, that's a separate incident. They are not added together in the eyes of the law to total 1000 dollars- and become prosecutable--because they are considered different incidents with different victims.

    In circumstances like this, the glue that holds civil society would literally fall apart. All business would go under, and no one would be safe walking down the street. You cannot run a society like this. Even primitive societies recognize ownership of personal property and punish thieves.

    But what do you do about a prosecutor who refuses to punish thieves and thus will destroy civil society by his actions? There needs to be a mechanism to get rid of prosecutors who do not properly enforce the law. A special prosecutor is going to be necessary. By the way, there's nothing in the Constitution that says you can't appoint a special prosecutor to investigate a state's attorney. If you say there is, show me the relevant passage.

    Hey, if the Supreme Court says it's legal to have a special prosecutor investigate the President, then it darn well should be legal to have a special prosecutor investigate some random state's attorney. A state's attorney doesn't get some mysterious super-special Constitutional protection that we deny the President of the United States.

    What do you say about a prosecutor who says he will no longer go after criminals who commit less than 750 dollars worth of theft, as Houston’s prosecutor says he’s going to do?

    Dallas, not Houston, thanks to prosecutor Limbo Creuzot, the only Democrat I voted for. I won’t make that mistake again.

    Note: I call him “Limbo Creuzot” because my only interaction with him was in the course of his party doing the limbo in the front room of The Gingerman in Dallas 25 years ago.

  40. @Anon
    What do you say about a prosecutor who says he will no longer go after criminals who commit less than 750 dollars worth of theft, as Houston's prosecutor says he's going to do? To put it bluntly, a mob of blacks could go into a store and strip it of its entire stock of goods--destroying it as a business--and get away with it as long as each black took less than 750 dollars' worth of goods. Blacks could line Houston's streets and mug every passerby and get away with as long as they took less than 750 dollars. Since most people don't carry anywhere near that amount of cash, it means they could get away with a constant wave of mugging.

    If you take 500 dollars in one mugging incident, that's just one crime and it won't be charged against you. One hour later, if you take another 500 dollars off another guy, that's a separate incident. They are not added together in the eyes of the law to total 1000 dollars- and become prosecutable--because they are considered different incidents with different victims.

    In circumstances like this, the glue that holds civil society would literally fall apart. All business would go under, and no one would be safe walking down the street. You cannot run a society like this. Even primitive societies recognize ownership of personal property and punish thieves.

    But what do you do about a prosecutor who refuses to punish thieves and thus will destroy civil society by his actions? There needs to be a mechanism to get rid of prosecutors who do not properly enforce the law. A special prosecutor is going to be necessary. By the way, there's nothing in the Constitution that says you can't appoint a special prosecutor to investigate a state's attorney. If you say there is, show me the relevant passage.

    Hey, if the Supreme Court says it's legal to have a special prosecutor investigate the President, then it darn well should be legal to have a special prosecutor investigate some random state's attorney. A state's attorney doesn't get some mysterious super-special Constitutional protection that we deny the President of the United States.

    What do you say about a prosecutor who says he will no longer go after criminals who commit less than 750 dollars worth of theft, as Houston’s prosecutor says he’s going to do?

    It is also implied that the owner of the store who was ripped off also does not have the legal or moral authority to protect himself or his property / livelihood a la Oberlin. The state monopolizes violence but if they chose not to use it because of the race or creed of the person’s being harmed, they directly contribute towards the situation. In fact they explicitly make clear you cannot touch these people. Not a lawyer, but this was one of the prime reasons the Federal government enacted the lynching laws. There would be hundreds of witnesses to lynching but the local authorities would do absolutely nothing. Roughing up a store clerk is not the equivalent of lynching but point a gun and shooting them certainly is, and how many times a day does that occur?

  41. @MikeW
    Yes. Smollett is a colossal idiot and sociopath, but his career is toast and that's good enough. People need to put down the torches and pitchforks and move on to the next celebrity clown.

    Grind him into dust. It’s what they’d do to me or you. Suppose the cops had turned up a couple of white suspects. Do you think that creep Smollett would have lifted one carefully manicured finger to protest the injustice he launched?You might hate the game, but we have to play.

  42. @JRoberts
    I'm sorry, but there's nothing in the Constitutional structure of checks and balances that justifies one branch of government assuming a role that is outside its scope and explicitly delegated to another branch of government. The argument you advanced is precisely the type of muddled thinking that has led the US to the clown circus of House committees issuing subpoenas to members of the Trump adminstration and threating to jail them if they don't comply.

    This limiting principle is particularly important in precisely this type of case. The credibility of the judicial branch rests entirely on its role as a neutral arbiter. The judicial branch cannot claim to be a neutral aribiter of charges that arise out of a prosecutorial process that originated with the judicial branch. I will vote to overturn any conviction and vacate any charges that arise from this process.

    Prosecutorial discretion is absolute and not subject to challenge by the judicial branch. The checks and balances available under the Constitution are applicable to the prosecutor, not the defendant. If, as it appears, Foxx violated policy by improperly appointing an acting state's attorney, then she should be subject to appropriate penalties. But as distateful as it is, Smollett has to walk.

    Before you go all keyboard Rambo on this, take the time to consider that the American legal system, including the judiciary, is largely controlled by the political left. Giving left-wing activist judges the authority to appoint a Special Counsel to initiate criminal investigations, which they will subsequently adjudicate, is an exceptionally poor idea. This is a leap onto the slippery slope that leads to a banana republic.

    We have been a banana republic for some time. See the history of the Clinton family over the past thirty years.

  43. @Art Deco
    The law and protective services attract people with dissimilar characteristics. What Soros wants to do goes against the grain of what police officers want to do. With prosecutor's offices, you just swap out one set of lawyers for a different set of lawyers more to your liking. We have mandatory minimums because the insider's game between prosecutor, public defender, and judge will produce nonsense results if a certain amount of discretion is not removed from the equation. (My favorite example is a scandal which erupted in 1989, when it was discovered that a protege of the Speaker of the House working as the staff director of a consequential committee within the Democratic caucus had been sent up for a violent crime in 1973. A judge in Virginia had sentenced him to two years in a county jail for a peculiarly brutal act of attempted murder the victim of which required months of rehabilitation care. Many years later, she landed a job on Capitol Hill and discovered he was working there. Jim Wright's daughter was an in-law of his and had gotten her father to send letters to the judge and promise a job on his release. Morton Kondracke was one of the few who wrote about the case who remarked that the most scandalous figure in the whole fandango was the judge, whose name was never published).

    I remember the story. His name was John Paul Mack and he was the chief of staff to the Speaker of the House, Jim Wright. The uproar caused Mack to resign, despite being defended by some prominent Democrats as having “reformed.” I remember Mark Shields on Capital Gang talking about how sorry he was for John Mack whom he liked very much.

    An oddity was Mack had a better job in 1989 than he would have had if he hadn’t brutally attacked and almost killed the woman.

    A few weeks later the Speaker resigned. He got most of the blame. I don’t recall the judge being criticized. The affair then blew over and was largely forgotten.

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