Suppose you have a case where…law enforcement officers pleaded guilty to a criminal civil rights violation for using excessive force…and then the government [moves] to dismiss [because] the victim is black. The defendant law enforcement officer is white, and they [the government] did not believe the jury [would] believe the black victim over the white officer…is that proper?
What I want to draw attention to is Wilkin's own--or at least apparently his own--musings on what would be a proper course to follow. As I've already commented several times, I found what he had to say shocking, but I had no transcript. I was sure I had heard Wilkins correctly, but couldn't understand how those remarks or musings could have gone unremarked by sharp legal commentators. And here's the thing that's so shocking about Wilkin's public remarks. I can't imagine that Wilkins came up with these ideas on the spur of the moment. Rather, I suspect that his thoughts reflect Leftist views on how our courts should operate.
Here, again, is Adam Mills quoting Wilkins' suggested way forward in such a case as he presents in his hypothetical--and therefore, we must presume, this is how he would justify Sullivan's refusal to rule on the motion to dismiss:
“If the government can’t make the case go away and the case is in limbo, then while it is in limbo, pressure could be brought to bear on the government to reconsider the decision (to dismiss)”.
To provide a fuller context I provide here a summary from Lawfareblog's Benjamin Wittes (a liberal who must be presumed to be fair to Wilkins) of the extended passage between Wilkins and Walls:
Even if the prosecutor is dismissing the case because he didn’t think that a white officer should have to answer for a crime against a black citizen, asks Wilkins?
Wall responds: I don’t think that the court can force the executive to keep a case alive in the absence of case or controversy. Even if you disagree with me, the reason that hypothetical has force is because it is an unconstitutional motive. And there is nothing like that here.
But then, Wilkins asks, what work at all does the “leave of court” language in Rule 48(a) do?
Wall says that it does work with an opposed motion to dismiss. And with unopposed motions, the rule can be used to make sure that the decision is the considered position of the executive and the defendant, meaning that they weren’t bribed or poorly counseled.
Wilkins returns to his hypothetical: What if the government makes a considered but racist decision? Why isn’t it the case that the district court can deny the motion and let the political chips fall where they may? The district court can’t itself force the government to prosecute, but maybe other pressures or operations of the legislative branch can lead to the appointment of a new prosecutor and the case proceeds. Isn’t that what “leave of court” is intended to do?
Wall responds that the courts have no power to make the executive move forward to trial if it doesn’t want to.
But while the case is in limbo, Wilkins wonders, pressure could be put on the government to bring the case, right?
"Pressure could be brought"? This can only refer to the pressure of public opinion, given that Wilkins' next suggestion refers to action by the political (legislative) branch of government as an additional means of bringing pressure to bear in order to prosecute defendants whom the judge thinks should be proscuted. Exactly what would be the nature of the pressure that could be brought by the judge's action or by his refusal to act? Demonstrations, "protests," riots, looting, arson? Congressional hearings, with legislators taking positions for partisan advantage?
Clearly Wilkins views the overt politicization of the judiciary and the judicial process--transforming a criminal trial into a political 'cause'--as an acceptable or even desirable means for obtaining the conviction of defendants whom he disfavors. One only needs to ask, Where were the riots by Whites after the OJ verdict? to realize what Wilkins' ideas would lead to in the current climate.
And yet Wilkins' musings appear to be exactly where the Left intends to lead our country: Political 'justice', mob 'justice'. We see this tendency everywhere--in academia especially, but it has now become increasingly common to see pressure brought to bear on individuals in every walk of life to conform to the current "wokeness". As John Hinderaker writes today in You Must Comply!:
The Left now tells us that silence = violence. Obviously a false statement, but what else is new? Liberals are trying to bully the rest of us into agreeing with their false narrative ...
We will be required to stand up in public and testify to 'woke' orthodoxy. Wilkins' musings give us a clear indication where this will all lead.
There will no longer be a pretense of impartial justice within a constitutional order. Only political outcomes, dictated by whatever views are considered "woke" at any given time--subject to the changing whims of the elite. This means the end of any pretense of a real rule of law--a result which follows from the philosophical presuppositions of Liberalism: That we construct our own reality, rather than accepting an objective human nature as the standard for human behavior.
In the final analysis, for liberals it's all about Power. Its acquisition and its exercise.
This outcome is inherent in the concept of Majority Rule. The American difference is the idea of a constitutional order based on a set of truths that are held to be self evident and which serve to protect citizens from the naked power of the State. The Left understood this, and began its Long March through our educational institutions precisely to eradicate those foundational beliefs from our consciousness. They have succeeded to a great degree, as we have seen in past decades in the increasing intellectual corruption of our judicial branch. The coming election could be pivotal for our constitutional order.
Democrat plantations (D.C., St Louis, Philadelphia, NYC, UCLA, Harvard, etc) are emotionally primitive & tribal societies. When I read "Animal Farm" many many years ago it was just a book. It is no longer just a book. “All animals are equal, but some animals are more equal than others.”ReplyDelete
Universities = Dem plantations.Delete
Our modern day Jacobins; some, or would that be many, wear judges robes. How to remedy such a malady...?ReplyDelete
Personal conversion to belief in objective order.Delete
Belief in objective order...from leftists? Is there a recorded instance of that anywhere in history?Delete
He saying "take it to the streets" good black person reverting to his roots.ReplyDelete
I beg to differ--Antifa and the people who led to all this were white liberals.Delete
But much of this is implicitly, if not avidly, backed by "respected" upper middle class blacks, e.g. almost all of the Congressional Black Caucus.Delete
A look at Wilkins reveals that he has for long had one focus. His raison d’etre. His book Long Road to Hard Truth: The 100 Year Mission to Create the National Museum of African American History and Culture documents a project in which he was actively engaged for decades. It is hard to find anything else that captured his attention.ReplyDelete
The planning that it took for Wilkins to work that “white police officer/black ‘victim’"(his words) hypothetical into the mandamas hearing on a case entirely unrelated to racism is indicative of his primary mindset. That he felt a need to use it three times during his questioning as a member of the appellate panel indicates obsession.
Yeah, it's as if he never heard--and certainly never considered--the maxim that 'hard cases make bad law.'Delete
Spot on Bebe. Would Wilkins get reprimanded by anyone on the circuit for this line of questioning. It's lack of relevance etc... seems he should be given a good talking too.Delete
What exactly was Wilkins asking? In the Flynn Motion to Dismiss the DOJ cited exculpatory evidence that had been withheld from the defense. Did Wilkins's hypothetical include the existence of similar exculpatory evidence, and if so what is his question? Is it a question about which political issues are so important that evidence and law may be ignored?ReplyDelete
To put the best construction on Wilkins' hypothetical, he was asking whether it could ever be proper for a judge who suspected improper motives on the part of the prosecution in advancing a motion to dismiss, to deny that motion and turn the process into a political one.Delete
The difficulty with that hypothetical is twofold. 1) There is a recognized process for attacking a denial of equal protection (Wall points this out), and 2) in Wilkins' example there would be interested parties (victims) to raise objections, whereas in the Flynn case there are no such parties. Instead, it is the judge himself, Sullivan, who--having exhibited extreme prejudice--who is raising the objections.
This is why I raise the maxim, hard cases make bad law. To come up with a general rule based on a hypothetical rather than the case that is before the court makes no sense and, if widely followed, would surely lead to bad results. The whole point of our common law is to build only on actual experience in developing precedents.
Re “what exactly was Wilkins asking?”, to go along with Mark’s excellent analysis, here is video of the oral arguments and a transcript from uncorrected closed captioning:Delete
You're a glutton for punishment! :-)Delete
Trying to read that transcript is punishment because it is not always clear who is speaking. But the video is there. Thought it would give Tom B what he was after. When commenters ask for precise quotes, etc., I wonder why they haven’ t gone and found them. The internet is quite wonderful when it comes to providing those sources. When it comes to analysis, this is the best place!Delete
I did see that link but didn't follow it because I thought it was just sound.Delete
A positive opinion from a lawyer’s op-ed published by the New Jersey Law Journal:Delete
D.C. Court of Appeals Will Have to Grant Flynn’s Mandamus Petition
OP ED: The D.C. Court of Appeals will ultimately have to grant Flynn’s petition and rebuke the district court for its usurpation of Executive authority.
I misspoke. C-Span’s link is to the audio with photo of the person(s) speaking. The uncorrected CC transcript is below that screen. One instance of Wilkins’s laboriously working his hypothetical into his questioning is during Wall’s argument at 45:24 on C-Span’s audio… He did it 3 separate times during the hearing.Delete
3) There is actual evidence of prior prosecutorial misconduct that the gov't. is now seeking to correct. Wilkins' hypothetical seems to be the inverse of the case at hand.Delete
Maybe we can escape this endless bizarro world by clicking our heels together and repeating "There are no Obama judges...there are no Obama judges..."
The core problem is much bigger than Sullivan's runaway train judicial intervention or Wilkins racist musings about grievance lawfare. A cancerous chaos is exploding in our society and the normal corrective mechanisms are under siege.ReplyDelete
Police Departments across the country are under intense political onslaught, and soon the best cops among them will likely begin heading for the exits. This loss will disproportionately impact the poorer minority neighborhoods in most large urban areas. Exactly the opposite of what is being touted in media propaganda campaigns.
These problems are only going to get much worse as the hot summer months arrive, and it's going to take bold leadership to stem this tidal wave. Roberts needs to inject himself into the Flynn case now and prevent this open wound from going gangrene. A half-assed ruling out the Circuit Court will be like pouring gasoline on a fire.
Innocent people are dying because the Deep State is going scorched earth in a final desperate attempt to stop Durham. The madness needs to be stopped, and every power player in DC needs to step up. Just watching it burn is not a humane option.
It's a deliberate strategy--make conditions intolerable and their faith tells them that will be the path for them to power.Delete
It's a similar idea.
"Roberts needs to inject himself into the Flynn case now...."Delete
In light of this week's rulings, that now looks very unlikely.
Wilkins hypothetical is fascinating for how far off the mark it is from the case at hand (IMO), therefore serving as a distraction from the question, i.e. are there any circumstances which the court can pick a side in the adversarial controversy before it? Or in this case, pick a third side, as it presumes to oppose both sides.ReplyDelete
If such underlying circumstances exist, as Wilkins hypothesizes, then there are a number of courses of action, e.g. change of venue and voir dire are two such. But again, the hypothetical doesn't address exculpatory evidence as the reason for bringing the case to trial.
It would be funny if it weren't an appellate court judge posing this nonsense.
...as the reason for *not* bringing the case to trial...
One potential retort to Wilkin's inane hypothetical would have been for the DOJ lawyer to respond:ReplyDelete
"I have an even better hypothetical: suppose a sitting judge conspires with a retired judge to take a criminal case hostage, and refuses to dismiss charges when BOTH parties to the case have agreed charges should be dismissed, and seek to use the case as a "hobby horse" to conjure extra-constitutional "inquiries," while continuing to harm the the defendant needlessly. In such a case, what recourse does the defendant and the Executive branch have to reign in such out-of-control judges, other than a Writ of Mandamus issued by the Appeals Court, ordering the lower court to dismiss the charges forthwith?"
That would have been cheeky.
I like your version of cheeky. And the imagined egg on the face of a judge who has surpassed his authority but has also shown his mental limitation when it comes to blind justice...Delete
Hah. Good one...Delete
Haven’t commented in a while ... ahem.ReplyDelete
Our system of government is at a tipping point. A standing at a precipice moment or as some space sciency folks like to say, at the singularity.
We are hanging on a thread of constitutionality.
Honorable Judge Wilkins lays bare just how close the thread is stressed.
I wonder if this 'hypothetical' was even thought up by Wilkins. It bears all the earmarks of using the race card to bulldoze a case, which also seems to be the strategy behind the antifa, etc. things going on in the burning cities. It's like get a black judge to tie (at least in some bizarre way) Sullivan's actions to the whole race cause, and, they thought, no one will be able to question it. As though he'd just played the whole trump suit in a game of bridge. Well, I guess this column proves that race relations have come far enough in this country that people will examine an idea fairly no matter who's mouth it comes from! Also, I'd bet there's some correlation between Wilkins's hypo and Henderson's parting comment about self-policing, inasmuch as she gave a 'hypo' that was right on point and constructively applicable to the case. I thought DOJ's handling of the hypo in the case was excellent...one of those times when a lawyer may be thinking something (probably same as Cheeky, above!), but still has to say something very appropriate...hahaReplyDelete