A victory for justice

Dear Readers, You may not realize the enormous discretion of the professionals in law enforcement.  For example, every vehicle infraction is “arrestable” in Georgia, whether it involves equipment or operational issues.  Yes, if you are driving a car (even a borrowed one)  with a broken taillight OR if you roll through a stop sign, your butt could be hauled off to jail.  

Parents are concerned about their children being caught “driving while brown or black” and have the “talk” with them.  Statistics show, whatever the cause, minorities are stopped far more frequently for equipment and moving violations.  

It is unconstitutional to arrest someone for their skin color or gender.  Yet, all it takes is SOME legitimate justification for an officer’s decision.  As absurd as it might be, an officer can arrest a broken taillight or a rolling stop, just “because.”  

This thread of discretion weaves its way throughout the prosecution.  My first day at the Miami-Dade State Attorney’s Office, Janet Reno addressed our group of baby prosecutors.  She asked us, rhetorically, “What was the highest duty of a prosecutor?”  She answered her own question, “To make sure an innocent person is not convicted.”  In other words, in exercising our discretion, we should do what is right, not popular.

Police officers make arrests – prosecutors decide whether to proceed with a prosecution.  This is sometimes an easy choice.  When the bank robber gets caught red-handed on video, this may not necessarily portend a “slam-dunk” conviction; it is a “slam-dunk” decision to prosecute and secure an indictment.

The Trump Administration maintains it has the right to stop and detain someone because he or she “looks” like an illegal immigrant.  The United States Supreme Court has not ruled this is permitted; however, in a 6-3 Emergency Order, issued on that much-maligned “Shadow Docket,” it did not put a stop to it.  

This signaled that the legal envelope even be pushed even further.  ICE, Border Patrol, and National Guard are conducting raids, believing they have the right to sweep up everyone irrespective of legal status.  This happened in a military-type nighttime assault, complete with helicopters, flash-bangs, and tear gas, at a Chicago apartment building.  The targets were gang members and illegal immigrant occupants; swept up in this assault were U.S. citizens and children in their pajamas.

This has to be illegal.  We cannot have citizens being attacked by their government for no reason.  Presumably, we will pay for the civil lawsuits filed to contest these excesses.

It gets worse.  Our Justice Department truly has been weaponized; it is now President Trump’s personal law firm for political retribution, witness most prominently the indictments of James Comey and Leiticia James.  More ominously, line prosecutors and agents are being fired just because of involvement in past prosecutions of Donald Trump.  The “brain drain” at Justice is real and scary.

The decision to prosecute needs to be independent of partisanship.  Our law enforcement officials cannot fear that their jobs depend on anticipating future political winds.

While this is a scary proposition, it does not touch “us.”  What are prosecutorial decisions designed to chill our rights of free speech?

This brings me to the plight of the “Subway sandwich man,” Sean Dunn.  In the midst of the Washington D.C. crackdown, he started jawing with a Customs and Border Patrol officer this past August.  In an unfathomably unwise decision, he wielded a mighty wrapped subway sandwich and threw it at the officer and took off running.  The video of this scene was destined for social media clips, memes, and fodder for comical political commentary.  

Ultimately, he was tracked down at his apartment and arrested.  Jeanne Pirro, as United States Attorney, decided to make an example of Mr. Dunn’s choice of sandwich flinging.  She sought to have him charged with felonious assault on this officer clad in a bulletproof vest.  It failed; the Grand Jury refused to indict him. 

Ms. Pirro was undeterred.  She had him charged with a misdemeanor and tried.  The odds were not in Mr. Dunn’s favor, as federal prosecutors win in excess of 95% of jury trials.  Not so with Mr. Dunn, three days of our tax money used to prosecute him ended in a swift “not guilty” verdict.  It turns out that 12 citizens have more sense than Ms. Pirro.  

A victory for justice.  Ultimately, the definition of justice is what we make of it.  Anti-democratic forces are trying to bend it to personal aggrandizement, which is why our vigilance is crucial.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.