West Memphis 3 Freed

[OttoVonBismarck]

Or you are downplaying how political they appear.

That's the same argument as Minsky made - well they might be political appointments, but they're not politicized.

But here you're talking about a political appointee in Canada who is the "least political boss" you had ever had. The U.S. Attorney really isn't a prosecutor position, it's an administrator / supervisory position, so you shouldn't think of our prosecutors, at least our Federal prosecutors, as being political. Our Federal prosecutors are Associate U.S. Attorneys and they are hired through a rigorous civil service process, not through any political process.

Keep in mind that a huge portion of cases Federal prosecutors handle are brought to them by law enforcement, so their political affiliation is irrelevant. When the DEA busts a drug smuggling ring or the FBI uncovers various types of interstate crime U.S. Attorneys don't decide not to try these cases based on political concerns.

Instead where you see the head guy being important is he sets an "agenda" and tries to push certain investigations from his end. For example Rudy Giuliani was big into going after the mob, but by and large the process is:

1. LEO investigates a crime
2. LEO Makes an arrest
3. Prosecutor tries the case

Since law enforcement is very removed from the political process by the time a case actually gets to a U.S. Attorneys office I'd wager 95% of them are cases totally unrelated to anything that even touches the world of politics. Further, when a political appointee holds a position in which they are not supposed to behave as a partisan politician it's actually in my opinion more likely that they will rigorously uphold the letter of their legal responsibilities, any failure to do so could come out in the public precisely because they are a political figure, and it could get them in massive amounts of trouble.

Apolitical prosecutors can decline to prosecute any case they wish and it is very unlikely the press will care or look into it. If the press finds out a U.S. Attorney chose not to prosecute an obvious case, and then finds out the defendant is tied to a political patron, that's pretty much a field day. Their relative anonymity makes less political prosecutors much less accountable, because no one pays attention to what they are doing.

Much of the procurement process (something I am very involved in) is handled by life long civil servants. It's an extremely political process with horrible amounts of favoritism that goes on and various ways to undermine the RFP / RFQ process. Lots of times companies get contracts based on having old buddies on the inside, and these are all civil servants, not political appointees. So as a long time civil servant I don't see the apolitical civil servants as being less prone to political influence, I just see them being less accountable because they can hide behind the wall of the civil service system.

[The Minsky Moment]

In Poland, prosecutors now operate like civil servants.

Same in the US - see Otto's comment.  Only the bosses are appointed.

[The Minsky Moment]

Instead where you see the head guy being important is he sets an "agenda" and tries to push certain investigations from his end.

It is mostly a matter of allocating resources and staff to certain priorities. 

[dps]

There's only like 95 U.S. Attorneys in the country, I imagine most of the men actually trying cases, the "real" prosecutors, probably are in the Federal civil service for much of their careers.

Like most civil service jobs (and I see this, being a civil servant) you have a group of people who go in right out of college and who have their eyes on bigger things, and use it as a 1-2 year stepping stone. Then you have retirees from other things (military is common) who want to work another 20 years, then you have lifers (most of the civil service.)

But in comparison to your 95 US Attorneys... there is *one* federal appointment in Canada - the Director of Public Prosecutions, Brian Saunders.  And as my one time boss I've met him - he comes across as a sweet old man.  And he was the least political boss I've ever had.  And he was utterly non-political from when I remember his appointment.

http://www.ppsc-sppc.gc.ca/eng/bas/dpp-dpp.html

Hell his public service goes back to the liberal era.

Like I said I'm just  surprised how blase americans are about how political their prosecutors are.

I think that you're really overestimating how political our prosecutors are.

Or you are downplaying how political they appear.

That's the same argument as Minsky made - well they might be political appointments, but they're not politicized.

How political they might appear to a foreign observer, I don't really give a shit about.  And I was talking more about the elected prosecutors at the state level, while Minsky was talking more about federal appointees.

And anyway, what I was actually getting at was the point that OvB makes--the political appointees at the federal level and the elected prosecutors at the state level are mostly in administrative positions.  The actual prosecutorial work is done by people who are in the civil service system (though of course, with the usual caveat that at the state level, it varies quite a bit from state to state.  It's probably less true on the state level generally).

[Barrister]

Or you are downplaying how political they appear.

That's the same argument as Minsky made - well they might be political appointments, but they're not politicized.

But here you're talking about a political appointee in Canada who is the "least political boss" you had ever had. The U.S. Attorney really isn't a prosecutor position, it's an administrator / supervisory position, so you shouldn't think of our prosecutors, at least our Federal prosecutors, as being political. Our Federal prosecutors are Associate U.S. Attorneys and they are hired through a rigorous civil service process, not through any political process.

Keep in mind that a huge portion of cases Federal prosecutors handle are brought to them by law enforcement, so their political affiliation is irrelevant. When the DEA busts a drug smuggling ring or the FBI uncovers various types of interstate crime U.S. Attorneys don't decide not to try these cases based on political concerns.

Instead where you see the head guy being important is he sets an "agenda" and tries to push certain investigations from his end. For example Rudy Giuliani was big into going after the mob, but by and large the process is:

1. LEO investigates a crime
2. LEO Makes an arrest
3. Prosecutor tries the case

Since law enforcement is very removed from the political process by the time a case actually gets to a U.S. Attorneys office I'd wager 95% of them are cases totally unrelated to anything that even touches the world of politics. Further, when a political appointee holds a position in which they are not supposed to behave as a partisan politician it's actually in my opinion more likely that they will rigorously uphold the letter of their legal responsibilities, any failure to do so could come out in the public precisely because they are a political figure, and it could get them in massive amounts of trouble.

Apolitical prosecutors can decline to prosecute any case they wish and it is very unlikely the press will care or look into it. If the press finds out a U.S. Attorney chose not to prosecute an obvious case, and then finds out the defendant is tied to a political patron, that's pretty much a field day. Their relative anonymity makes less political prosecutors much less accountable, because no one pays attention to what they are doing.

Much of the procurement process (something I am very involved in) is handled by life long civil servants. It's an extremely political process with horrible amounts of favoritism that goes on and various ways to undermine the RFP / RFQ process. Lots of times companies get contracts based on having old buddies on the inside, and these are all civil servants, not political appointees. So as a long time civil servant I don't see the apolitical civil servants as being less prone to political influence, I just see them being less accountable because they can hide behind the wall of the civil service system.

Guys, I'm aware that senior prosecutors don't actually go into court.  I work in a prosecutor's office.  When I brought up Brian Saunders, the Director of Public Prosecutions, he doesn't go to court himself.  He only sets directives and policies.  But I still think it's far better to have someone apolitical setting those policies.

Otto, my relative anonymity doesn't make me immune from critique.  I've avoided it so far in my career, but every year or so there's a big news story about the Crown not proceeding on an 'obvious' case.  Being separated from the poltiical process also helps us in thosse cases, as we can't be pressured by the politicians to run a case that may be politically popular, but is ultimately a loser.

A regional manager, a Us District Attorney, a Chief Crown Prosecutor - whatever the title, even without going into court they hold enormous sway over how prosecutions are conducted.  And I'd much rather that person be an apolitical appointment, someone who has risen through the ranks, rather than a political appointment from Ottawa, Washington, or the voters.

[MadImmortalMan]

A regional manager, a Us District Attorney, a Chief Crown Prosecutor - whatever the title, even without going into court they hold enormous sway over how prosecutions are conducted.  And I'd much rather that person be an apolitical appointment, someone who has risen through the ranks, rather than a political appointment from Ottawa, Washington, or the voters.

The expectation of being apolitical is a fantasy, no matter how they get the job. Might as well have some say in it as a voter.

[Barrister]

A regional manager, a Us District Attorney, a Chief Crown Prosecutor - whatever the title, even without going into court they hold enormous sway over how prosecutions are conducted.  And I'd much rather that person be an apolitical appointment, someone who has risen through the ranks, rather than a political appointment from Ottawa, Washington, or the voters.

The expectation of being apolitical is a fantasy, no matter how they get the job. Might as well have some say in it as a voter.

No it isn't.

Us career civil servants are pretty careful to keep politics far away from work.

[MadImmortalMan]

Are you allowed to vote?   

[Barrister]

Are you allowed to vote?   

Secret ballot.

But more than that - I have been in the past, and will again, been a card carrying member of a party.  But I restrict my work for the party to behind the scenes stuff - and I would likely recuse myself from prosecuting any politician.

Well not exactly - I did prosecute the mayor of a small town that I didn't live in for fraud.  But municipal politics aren't party-based.

[MadImmortalMan]

I'm sure you are very meticulous about maintaining your neutrality, beeb. Personally, I'd vouch for it. Would you vouch for every single person working in the Crown system? I don't think so. You'd be a fool to do so. People are human beings, regardless of how aloof the rules say they are supposed to be or how well the organization is designed.

May as well embrace the partisan nature of humanity and have it out in the open.

[Martinus]

I'm sure you are very meticulous about maintaining your neutrality, beeb. Personally, I'd vouch for it. Would you vouch for every single person working in the Crown system? I don't think so. You'd be a fool to do so. People are human beings, regardless of how aloof the rules say they are supposed to be or how well the organization is designed.

May as well embrace the partisan nature of humanity and have it out in the open.

It's not as much about being neutral (noone is) but about being independent from political pressure. It's like being a civil servant in a country like the UK - noone is saying they do not have political views, but they cannot be fired for their political views and they are not up for reelection. So, in the example of the Memphis 3, the prosecutor simply has no immediate, direct incentive to pursue a conviction of innocent people.

In European/Canadian culture this kind of thing is a plus, not a minus, as it apparently is in the US. But then we have always been more positive about the whole "unelected wisemen" rule.

[Martinus]

There is also another, philosophical, difference that exists between the Anglosaxon and the continental model (not sure if Canada is somewhere in between, due to its French influences). I.e. in the continental model, the state prosecutor is a state official whose role (at least in theory) is not just to secure a conviction, but also to act as a first gate keeper against baseless charges being brought against a person. So if a prosecutor, having analysed the evidence, thinks that there is only say 10% chance of the accused being guilty, he normally should not bring the charges (of course in practice they often do but I am talking about more of a philosophical difference).

So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.

[Valmy]

(not sure if Canada is somewhere in between, due to its French influences).

Well a huge difference between Quebec and other former French colonies is the fact it never had the Civil Code.  Even Louisiana had the Civil Code and it still plays a role in their legal system.

Since French law was such a clusterfuck prior to that (would Roman law or customary law have precidence?) it is hard to say what sort of system they actually did have.  Any Canadian lawtalkers want to comment?

[MadImmortalMan]

So a prosecutor who blatantly brings unwarranted charges against someone is not just shitty at his job - he is betraying the very ethos of his office.

I doubt he cares. Presumably, there are structures in place to sanction behavior of that kind. We can vote the bums out.   

Or impeach.

But what if the guy doing that is backed by powerful other interests in government? You don't want to have to throw out the whole sitting government in some extreme situation just in order to get rid of a crooked prosecutor. (Not that Canada would be like that, I don't know.)


I think the difference is that if you try to keep them divorced from politics, you're essentially protecting them from the electorate. Maybe it's a bit populist, but I think that's a bad thing.

[Barrister]

(not sure if Canada is somewhere in between, due to its French influences).

Well a huge difference between Quebec and other former French colonies is the fact it never had the Civil Code.  Even Louisiana had the Civil Code and it still plays a role in their legal system.

Since French law was such a clusterfuck prior to that (would Roman law or customary law have precidence?) it is hard to say what sort of system they actually did have.  Any Canadian lawtalkers want to comment?

Quebec absolutely has the Civil Code.  Not sure the history of it, but that's the basis for Quebec law.