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Friday Roundup

Justice served.  Not much question that Richard Wesley got a raw deal.  He was a counselor at an elementary school in Kentucky, and periodically counseled a seven-year-old boy who had various psychological and behavioral problems.  One day, Wesley was notified that the boy was attempting to harm himself, so he brought the boy into his office where he waited with two other students while Wesley called the boy's mother.  The mother picked him up, and on the ride home from school the boy told her that Wesley had sexually assaulted him.

And that when Wesley's life went to shit.  Detective Joanne Rigney got involved, and the boy's story evolved:  he now claimed that Wesley had sodomized him on numerous occasions during the school year, and had sexually abused two other students.  In his original story, the boy claimed that Wesley touched his "private part" over the top of the boy's clothes on the day in question, but later claimed that Wesley had taken the boy's penis out of his pants.  And still later claimed that Wesley had pulled down his pants and "put his private part in my butt."  Rigney signed an affidavit including all this, and the magistrate issued an arrest warrant for Wesley.

Even a minimal investigation would have shown Rigney that there was no basis for the boy's claim.  There was no medical corroboration, and interviews with 32 other student who had contact with Wesley revealed no inappropriate behavior by him.  More critically, the door to Wesley's office was open during the entire time the alleged assault was to have taken place, and Rigney didn't even bother to interview any of the employees who could have easily seen the abuse if it had taken place.  And that's before we even get into the boy's history of psychological disturbances.

Wesley wasn't acquitted at trial; the case was so bad the state eventually dismissed it.

So that's a happy ending for Wesley, right?  Not exactly.  Wesley couldn't get another job which involved counseling children; in fact, he wouldn't have wanted such a job, since the incident made him "so hypervigilant around children, fearing someone will misinterpret the least questionable behavior."  He suffered symptoms of PTSD because of the incident.

So Wesley sued Rigney.  Well, that's not going to be a happy ending; successful lawsuits against the police for failing to investigate a case properly are about as rare as Oscar nominations for Adam Sandler movies.  When you sue the police for violating your rights, there's something called "qualified immunity."  In simple terms, it means that not only do you have to show that the police violated your rights, you have to prove that the law is so clear on that point that they knew or should've known that they were violating your rights.

And that's just what happened to Wesley:  the district court held that Rigney was entitled to qualified immunity, and dismissed Wesley's suit.  And that was that.

Until the 6th Circuit reversed, holding that there was sufficient evidence that Rigney omitted or misrepresented facts, and that this was done intentionally or with reckless regard for the truth, to warrant a trial.  And a trial there was, in which the jury concluded just that and awarded Wesley $500,000 in compensatory damages and another $589,000 in punitive damages.  The 6th Circuit affirmed that verdict last week in Wesley v. Campbell

And that is a happy ending, of sorts.  The police have a lot of discretion in the criminal justice system, and it's helpful to remind them every now and then that they'll be held responsible if they abuse that discretion.

What we don't know.  Prison reform - aka "not putting more people in prison than any other country in the world" - has been a big topic for several years now, although bipartisan efforts have come to a screeching halt with the advent of the Trump administration and the hard-on-crime views of beleaguered AG Jeff Session.  Still, there's still a lot going on at the state levels, and I came across this interesting article on lessons reformers have learned.  (H/t to Sentencing Law & Policy.)  Some lessons were expected:  cutting prison populations doesn't mean more crime, vocational, educational, and treatment programs pay off.  Some not:  you can't make large cuts in the prison population just by letting "non-violent" offenders out, and you don't save money by reducing the prison population, because the aforementioned vocational, educational, and treatment programs aren't cheap. 

But the article contained a link to another one, "13 Important Questions About Criminal Justice We Can't Answer," which I found even more interesting.  (That these would fascinate me says much about the pathos of my life, such as it is.)  If you believe that informed decisions require data, you begin to realize what a daunting task criminal justice reform really is.  We don't know how many ex-cons recividate, how many people have a criminal record, how often police stop motorists, how often they use deadly force.  (The DOJ figure is about 500 a year; other sources which track such killings indicate it's about double that.) 

One of the other things we don't know is "how many criminal cases are referred to prosecutors and how they decide which to pursue."  Or what to do with them, I would add.

There are several key players in the justice system:  the prosecutor, the police, the judge, the victim, the defendant, and the defense lawyer.  None have more discretion than the first.  Yes, a judge can decide whether to send you to prison for between two years and eight years for a second-degree felony, but a prosecutor has the sole discretion to decide whether you're going to be charged with that second-degree felony in the first place, or whether and what plea bargain you're going to be offered instead.

I don't think we're going to find out how prosecutors make those decisions, because I don't think they themselves have any sort of formula on how to do that.  Sure, some offices will adopt certain policies -- gun charges won't be reduced is a common one -- but beyond that, it depends largely on whim.  I recently had a case where my client was charged with assaulting a police officer.  The entire incident was captured on tape.  The investigating detective, the prosecutor at the grand jury, the floor prosecutor, and her supervisor had all looked at the tape and decided that the lowest they would go was a simple assault.  Another prosecutor and another supervisor looked at the same tape before trial and decided that a plea to disorderly conduct was appropriate.

There's an old saying that it isn't what you don't know that hurts you, it's what you know for sure that just ain't so.  Sometimes, it is what you don't know that hurts you.

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