tag:blogger.com,1999:blog-8107037609455779557.post3396371410184559037..comments2024-02-28T05:56:28.293-08:00Comments on California Correctional Crisis: "A Crime Was Definitely Committed on this Case, But Not By Me."Hadar Aviramhttp://www.blogger.com/profile/15200780666976305749noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-8107037609455779557.post-15834212771536851012011-04-10T19:06:35.210-07:002011-04-10T19:06:35.210-07:00"Compensation in a quasi-tort suit is not onl..."Compensation in a quasi-tort suit is not only for the purpose of generating training. It is due as punishment for the misdeed. Moreover, while lip service to training won't happen, it might make people think more closely about who they hire, which I think may be more important here."<br /><br />Right, but if no additional training would have prevented the injury Mr. Thompson suffered, then he loses. A 1983 plaintiff proceeding against a municipality has the burden of proving a direct causal link between a policy or custom and the alleged Constitutional deprivation. Canton v. Harris, 489 U.S. at 385.Tomhttps://www.blogger.com/profile/08067759626108987472noreply@blogger.comtag:blogger.com,1999:blog-8107037609455779557.post-49858834120465510352011-04-10T18:49:48.584-07:002011-04-10T18:49:48.584-07:00Tom, I disagree about the evisceration. Compensati...Tom, I disagree about the evisceration. Compensation in a quasi-tort suit is not only for the purpose of generating training. It is due as punishment for the misdeed. Moreover, while lip service to training won't happen, it might make people think more closely about who they hire, which I think may be more important here. As to the grounds for ruling in favor of Thompson, a training theory was not even necessary here. If you adopt the findings about organizational culture, then the four prosecutors who hid the evidence acted within their perceived municipal mandate.<br /><br />Re the rotation idea, some countries actually work that way. Queen's Counsel in England, at least until recently, would work both sides, and would be appointed to a side on a case-by-case basis.Hadar Aviramhttps://www.blogger.com/profile/15200780666976305749noreply@blogger.comtag:blogger.com,1999:blog-8107037609455779557.post-19271221181272004362011-04-10T18:42:08.518-07:002011-04-10T18:42:08.518-07:00I've expressed my substantive disagreement wit...I've expressed my substantive disagreement with your opinion on the legal outcome case itself (largely centered on the Supreme Court's role in reviewing and making law and not acting as a court of general "do-goodering at large", especially not "empirically and morally"). You might consider that if you are correct, and that "no amount of training could have helped here", then, logically, Thompson's section 1983 claim is effectively eviscerated. (None of this is to say that I don't think Mr. Thompson is due some sort of compensation, and I think that some sort of scheme like that set up in the Texas law discussed here is worthwhile: http://www.economist.com/node/18530358?story_id=18530358&CFID=167994531&CFTOKEN=28983767 , I just agree with the Court that there's no section 1983 violation here).<br /><br />That being said, on the main point, I'm reminded of Sun Tzu's advice to "know your enemy and know yourself, that you will not be imperiled in a hundred battles." In any adversarial setting, being able to see the situation through the eyes of the opposition is critical to success (Robert McNamara made the same point, to empathize with your enemy, in "The Fog of War", the documentary he did with Errol Morris several years ago, and he had learned that lesson the hard way). We're simply better lawyers for being able to size up our cases through the eyes of our opposite numbers. Such an exercise may even be something of a minimal expectation of competence for litigation work, in my view. It's particularly incumbent on a prosecutor to be able to look at things in a holistic way, given that office's additional ethical and public responsibilities.<br /><br />I don't want to tread towards regional prejudice or ignore political realities, but I do wonder to what extent the war on crime and the political attitudes and posturing it has engendered has worsened this problem. Rather than the professional and ministerial ideals we might like to (or be expected to) maintain, prosecutors in too many places seem to be willing to substitute posturing and politics for justice, and the public often seems too willing to enable them, probably especially where a murder conviction and a death-row case, and the attendant headlines, are concerned. Representing "the People" and serving as a "minister of justice" is a responsibility, but it seems at worst that it can get warped into an entitlement.<br /><br />Tentative suggestion: it could become an expected part of criminal practice for both prosecutors and defense attorneys to do a regular "rotation" on the opposite side of the courtroom, actively switching roles to see how the other side works. There would have to be some protections in place or allowances made to existing rules of professional conduct, and perhaps participation would be limited to particular proceedings (not expecting dyed-in-the-wool prosecutors or defenders to handle capital trials, for an extreme instance), but it would probably go some way to addressing this problem.Tomhttps://www.blogger.com/profile/08067759626108987472noreply@blogger.comtag:blogger.com,1999:blog-8107037609455779557.post-17348352761784224932011-04-10T18:40:46.388-07:002011-04-10T18:40:46.388-07:00This comment has been removed by the author.Tomhttps://www.blogger.com/profile/08067759626108987472noreply@blogger.comtag:blogger.com,1999:blog-8107037609455779557.post-55486078568345531682011-04-10T18:40:10.536-07:002011-04-10T18:40:10.536-07:00This comment has been removed by the author.Tomhttps://www.blogger.com/profile/08067759626108987472noreply@blogger.com