I first learned about it in Street Law class in high school. Discretion. Specifically prosecutorial and police discretion. Believe it or not, it’s usually a good thing. I mean, if police and prosecutors pursued every case, we’d all be in prison.
Anyways, it’s not always a good thing. Because historically, it could be used to discriminate. I remember the Jenny Jones case. In case you don’t remember, this gay guy came onto this allegedly heterosexual man on the Jenny Jones Show. And he killed him. Anyhow, they were interviewing the then ultra conservative Oakland County prosecutor, Thompson. He kept coming back to the fact that the victim was gay. What did that have to do with anything? But in any event, it does still happen.
So what do you do if the prosecutor or police refuse to do anything because the victim is gay? Or African American? Or Jewish or Italian or Catholic? You get the picture.
Specifically what did African Americans eventually do about it? And what can gays do now? And indeed can they do anything about it? And should they be able to do something?
I agree and disagree. I agree because if we had a situation where every law was enforced, it would be a police state. The problem is that what we have ended up with is a bajillion laws which nobody enforces, but the “real” law is left at the whims of police and prosecutors instead of our elected representatives. Fewer laws that are directed at real harm would be better. If a law creates an absurd result, change the law, instead of leaving it out there as a trap for the unwary.
As far as the Jenny Jones thing, IIRC, it wasn’t the prosecutor, but the defense attorney who attempted to mitigate the crime from murder to manslaughter by saying that the guy was so humiliated by having a guy come on to him on national TV that he was acting in a state of extreme emotional distress. Again, IIRC, that defense did not work. But hey, if you have a weak case, you have to try something.
Of course you are right. The problem is how to draw the line. I go crazy whenever I hear that “The DA’s office declined to prosecute the case”, as it makes me feel that justice is NOT being served.
On the other hand, there are many times when there simply isn’t enough valid evidence to insure a conviction, even though it is clear to all what happened. Alternatively: The OP seems to be talking about cases where the prosecutor is prejudiced against the victim. But you could also have cases where the prosecutor is very much on the victim’s side, but he knows that he’ll never find a jury that would convict the perp; in such cases, it’s better to have no trial at all (because you can hope for a better jury in the future) than to lose a trial (where the perp can’t be retried ever).
A small number of states have banned the so-called “gay panic defense”. California has added special jury instructions to make this defense less effective. Prosecutors aren’t usually trying to discriminate, at least I would like to think so. These guys go to law school and are drilled to death about equal protection of the law, and they take an oath to that effect. More often they won’t prosecute because they don’t think they can win the case, due to percieved discrimination on the part of jurors. That’s why I think activists interested in this particular topic should continue to push for jury instructions and state laws that outlaw that kind of defense.
Here’s my issue with that: someone is dead, we know the defendant killed that person and we are trying to determine the culpability of that homicide whether it is capital murder all the way down to involuntary manslaughter. The defendant has the right for a jury to consider evidence that will speak to any of that.
If the “gay panic” defense is garbage (which I think it is) then a defendant will look very bad in attempting to mitigate his actions by using it, and a jury can properly assess that he is just reaching for straws. If the “gay panic” defense is not garbage (which, again, I think it is garbage) and it is something that the laypeople in the community believes causes such extreme emotional distress to mitigate a murder down to manslaughter, then the defendant should have the right to present that evidence. To hold otherwise is arguably taking away someone’s jury trial rights to a determination of these things.
But suppose we as a society thought this was a real problem. We have a sample size of one here where the defense was not very successful, if at all, and want to take that one experience and make law for every case out of it. We do that too often already because of “public outcry” when a bad thing happens.
I don’t see the issue with a defendant, foolishly hanging himself in presenting the defense, by saying that the reason he murdered a guy was because of his mild embarrassment by the guy’s declaration of being attracted to him, when any reasonable juror can look at that and say, “Yeah, that’s not good enough, and in fact, I’m going to hold it against you for bringing it up.” Allowing that “defense” is not in any way declaring open season on gay people.
I guess (even though I posted already) I’m asking what is the OP’s argument here about prosecutorial discretion? Is he talking about the kind of discretion as in: “This is a young kid so I’ll give him a pass on a minor misdemeanor if he promises to straighten up” or “It’s open season on blacks. Kill em all you want. I won’t prosecute”? There is an extreme difference between the two yet the OP opens with the first and jumps right to the second.
I don’t think jury trial rights are implicated when the state instructs jurors that, for example, nonviolent sexual advances are no defense to charges of murder. The state decides which defenses are and aren’t valid all the time. Sometimes the criminal code will read, right there, “X shall/shall not be a valid defense to charges under this section”. Right?
ETA: You are licensed in WV right? So for example W.V. Code §61-2-29b(h)(4)(i) describing the financial exploitation of elderly persons reads in part,
Notwithstanding any provision of this code to the contrary, acting as guardian, conservator, trustee, or attorney for, or holding power of attorney for, an elderly person, protected person, or incapacitated adult shall not, standing alone, constitute a defense to a violation of subsection (a) of this section.
This is one of the reasons that the federal government has the power to prosecute civil rights violations - local bias can prevent victims from getting justice.
The Jenny Jones killer was convicted of murder and served 22 years in prison, btw. Not sure that the local authorities were dodging much there.
