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.