A Vermont State’s Attorney Prosecuted A College Student For An Overheard Phone Call. Why Is She Still Employed?

In October of last year, police charged Wesley Richter, a University of Vermont continuing education student, with disorderly conduct after university officials said he used “explicitly racist and threatening language” against black students and diversity initiatives on campus. Richter was overheard in a phone call with his mother, though exactly what Richter allegedly said has not been made public.unknown. Of course, what he said doesn’t matter, unless he was planning a crime, which he was not. He was talking to his mother, and a student who overheard the discussion took offense at what was said. Richter, through his lawyer, denied saying anything racist, but again, it doesn’t matter. Saying racist things in a phone conversation cannot be a crime. It’s bad manners. It’s disrespectful to those listening. A school may be able to justly find some kind of violation to a reasonable and neutral civility code involving words but not content. But an overheard phone conversation cannot be a crime. It is mere words.

Nevertheless, the University of Vermont, the University of Vermont Police Department and the Chittenden (County) state’s attorney’s office in the person of Sarah George, the State’s Attorney, prosecuted the case against Richter. George is a graduate of the University of Vermont Law School, where presumably they taught constitutional law. There is no excuse for this.

Richter’s lawyer, Ben Luna, argued that George didn’t have probable cause to bring the misdemeanor charge, and Superior Court Judge David Fenster agreed. In a statement, Luna called the dismissal a victory for free speech and the First Amendment. “The court’s ruling reinforces my opinion that this matter should never have been brought,” he said.

The court’s ruling also reinforces my opinion that Sarah George should be disciplined by the bar and fired.

Right at the start, Vermont’s Rule 3.8, as in every other state, makes it clear that prosecutors must not charge anyone with a crime without probable cause:

Rule 3.8. SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

The Comments to the rule say in part,

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.

The First Amendment makes it beyond argument that the government may not punish or seek to punish citizens for the content of their speech. Since the only evidence that George had that a misdemeanor had been committed was a third party complaint about the content of Richter’s speech in a conversation over the phone with his mother, she did not have legal or sufficient evidence to charge or prosecute Richter. As a lawyer and a prosecutor she had to know that. If she knew it, she was knowingly abusing her power, and should be suspended from the practice of law.

If she didn’t know it, then she is incompetent and not fit to practice. She should be fired.

Incredibly, George said she thought the case was strong, but that it was also “a learning experience.” “It’s disappointing, but it’s also good for us to know. It’s a really great decision for us in terms of case law and reasoning, so we know now what this court expects of us,” George said.

Yeah, the court expects you to follow the Constitution. If you have to learn that at this late stage in your legal career, Sarah, you need to go back to the drawing board. Maybe you can sell maple syrup.

She wasn’t through. “What we allege he did, we still allege he did,” she continued.  “It just didn’t rise to the level of a hate crime.”

A phone conversation cannot be a “hate crime.” Speech cannot be a hate crime. “Hate speech” is not a legal designation.

Why is this woman a state prosecutor? Fire her.

If she is not fired, then this totalitarian, illegal, abusive and intimidating prosecution chills free speech, not just on the University of Vermont campus, but in the whole state. A citizen should not have to wait two months, as Richter did, for a judge to declare that the state cannot persecute him for what he is overheard saying, whatever it is.

Fire

Her. Continue reading

Ethics Heroes: The California State Legislature And Gov. Jerry Brown

governor-brown

Usually, when Ethics Alarms headlines California’s lawmakers, it is because they have done something irresponsible, like in this postthis one,  and my personal favorite, this one, in which Governor Jerry Brown signed a minimum wage law that he admitted might not make economic sense, because it was consistent with partisan fantasies.

But a blind pig might find a truffle, every dog has its day, and even a stopped clock is right occasionally. California just passed a desperately needed law that no other state has had the courage to pass. Its purpose: take serious measures to stop prosecutorial misconduct that sends innocent people to jail, a problem that is rampant everywhere in the U.S., but particularly bad in the Golden State.

Brown just signed into law a new statute making it a felony for prosecutors to alter or intentionally withhold evidence that could be used to exonerate defendants. Violators could be sentenced to up to three years in prison. That’s not nearly enough punishment when the crime often robs innocent citizens of decades of their lives, but it sends an important, and one hopes an effective, warning…with teeth. Continue reading

Ethics Hero: Dallas District Attorney Craig Watkins

Craig Watkins, a D.A. who understands his ethical priorities.

Craig Watkins, a D.A. who understands his ethical priorities.

In Law School, I had the honor of being instructed in the superb Georgetown Law Center Criminal Justice Clinic, by far the single best course of any kind I participated in at any level of my formal education. Our mentor in prosecutor ethics was Seymour Glanzer, the man who, as an Assistant U.S. Attorney, cut the deal with Nixon’s White House Counsel John Dean that cracked open the Watergate scandal.

Sy had one mantra he repeated to the clinic students often, trying the beat it into our heads forever: the prosecutor must be the center of justice and ethics for the criminal system. Defense attorneys have to defend the accused whether they are guilty or not, but prosecutors are charged with achieving justice, not convictions. “If you don’t have sufficient legal and reliable evidence to convict a defendant of a crime, or have any doubts about that client’s guilt, drop the case,” he told us.

His principles do not hold sway among many, perhaps even most prosecutors, to the shame of the criminal justice system. Too many see their duty as convicting as many accused as possible, putting the law-abiding public at ease by closing cases and filling prisons. Over-zealousness, sometimes to the extremes of withholding exculpatory evidence from defense attorneys while placing questionable eye-witnesses and unreliable experts on the stand under oath, is rampant in district attorney offices across the country.

The worst of the worst may have been Dallas. Vanessa Potkin, chief counsel of The Innocence Project at Cardozo Law School, argues that “no other county in the country beats Dallas. It’s a county that beats out most states in the country.”

It’s an indication of a system that needs reform, she says, with  “staggering numbers of the innocent put in prison.” That is why the recent steps taken by new Dallas District Attorney Craig Watkins are so important, and so necessary. Continue reading

Comment of the Day: “Pop Ethics Quiz: Welcoming Rev. Talbert Swan, Late Passenger On The Trayvon Martin-George Zimmerman Ethics Train Wreck”

"OK, you can go, but we want everyone to know that the US Government thinks you're a racist and a murderer."

“OK, you can go, but we want everyone to know that the US Government thinks you’re a racist and a murderer.”

The Justice Department’s press release  yesterday regarding the final rejection of a civil rights charge against George Zimmerman was despicable and unprofessional, political, as everything Holder’s department has done from the beginning, unethical,and an abuse of its power and influence.

Raising this  issue adeptly is reader J. Houghton in his Comment of the Day on the post, Pop Ethics Quiz: Welcoming Rev. Talbert Swan, Late Passenger On The Trayvon Martin-George Zimmerman Ethics Train Wreck. He ends with a question; I’ll return to answer it.

I am curious about the statement by Acting Assistant Attorney General Vanita Gupta that: “Our decision not to pursue federal charges does not condone the shooting that resulted in the death of Trayvon Martin and is based solely on the high legal standard applicable to these cases.” It seems almost like an unnecessary statement of the obvious, like, yes of course; this is a tragedy; mistakes were made; bad judgment happened; and somebody died needlessly. Of course, we all would hope that such tragedies “do not occur in the future” as the JD press release stated… ever! this is a most wonderful thought.

However, what exactly is it that the Justice Department does “not condone” ? Is it possible that General Gupta is suggesting that the Justice Department does not buy into the basic idea of shooting someone in self-defense if believed necessary to protect ones self, or perhaps she questions the basic idea of being legally allowed to carry a concealed handgun by permit for self-defense? Or is she questioning the wisdom of the Neighborhood Watch program which might encourage citizens to… God forbid… watch too closely the goings on in their neighborhoods? What exactly is it that the Justice Department does “not condone” in this particular case?

Not to say that the claim of “self-defense” is always justified… because it most assuredly is not. Nor am I defending in any way Zimmerman for the events that unfolded with very unfortunate results. But I am wondering about the chill this incredibly long and ultimately fruitless federal investigation might put on the fundamental right of self defense to protect ones self or others who might find themselves in the position of facing a real threat. Are citizens going to possibly face federal prosecution in the future for becoming “too involved” in the security of their own neighborhoods, or for protecting themselves or their neighbors if the unlawful aggressor and righteous defender in a specific incident happen to be of the “wrong” ethnicity or race?

Just asking…

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For the Attorney General, All Aboard For The Penn State Ethics Train Wreck!

That the Penn State child molestation scandal has metastasized into a full-fledged ethics train wreck can now hardly be denied. The proof is that, as pointed out by Solomon L. Wisenberg on the White Collar Crime blog, Pennsylvania Attorney General Linda Kelly trounced all over fairness to the accused in her statement to the press, violating the ethics rules governing prosecutors in the process.

Rule 3.8 of the Pennsylvania Rules of Professional Conduct states that the prosecutor in a criminal case..

“…shall, except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.”

Rule 3.6(a) forbids a “lawyer who is participating or has participated in the investigation or litigation of a matter” from making… Continue reading

Justice? Michigan Prosecutors Say Davontae Sanford Can’t Get There From Here

Davontae Sanford is 18 and in prison. He was 14  when he confessed to shooting and killing four people in a drug house, but now Davontae says he confessed in order to please police.

Vincent Smothers is a professional hit man already convicted of eight murders. He now says that he killed the four victims Sanford took the rap for. There doesn’t appear to be any reason for Smothers to lie about it: the hit man  is not known for his compassion toward others. Smothers even waived his attorney-client privilege with former attorney Gabi Silver so  Silver could testify on Davontae Sanford’s behalf, and say under penalty of perjury that Smothers told her he was responsible for  the killings, and that Sanford didn’t help him.

Prosecutors, however, are trying to block Silver’s testimony, which could free a wrongly imprisoned teen, arguing that it would be hearsay. While Sanford’s attorney, Kim McGinnis, says she has done everything in her power to convince Smothers to testify himself, he refuses, leaving it up to her.

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