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Comment by ohashi | Hacker News Reader

How unapologetic the prosecutor still is offends me. Trying to use anti fornication laws from 1796 and knowing it's a miscarriage of justice? Yet still thinks it's the right decision.

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I’m surprised the ACLU or an analogous force didn’t step in to set a precedent to get the law off the books. The interstate trafficking charge might have complicated that. But were there really no liberal First Amendment NGOs in the 70s?

And he has blood on his hands. One of the actors committed suicide.

There should have been some prosecution: not of the film maker, but on those who abused their power to harass people to the point of suicide.

Social conservatism didn't disappear. It remains a political force and an electoral majority in some places. There's no reason to doubt that this kind of prosecution is exactly what the voters had in mind when they elected him.

We have an adversarial system by design. We generally think it's a good thing that defence lawyers will defend even a guilty person as vigorously as they can; shouldn't the same apply to prosecutors?

No, because the point of the value of defending people no matter what is to protect against government overreach. The government has a significant asymmetry of power against its citizens (it can, you know, arrest or kill them), so there are legal limits placed on what the government can do to its citizens. It has to justify to a judge why it needs to infringe a citizen's rights (e.g. warrants for search or seizure), whereas citizens are assumed to be allowed access to information about the government, and the government has to make a case to keep it confidential (see: FOIA, FISA, security clearances, etc.). In addition to these legal limits, we have social norms, like the one you mentioned, to reinforce this adherence to citizens' rights. We must protect all defendants against the government in order to hold the government to proper processes. If we think the government should have been able to get an awful person, we need to change the laws going forward, not retroactively.

Additionally, selective enforcement is primarily a tool of corruption. The law is supposed to apply to everyone. If it doesn't, then those who enforce it get to selectively choose to not enforce it against themselves and only enforce it against their enemies. And, as we've said, the government has very disproportionate power against its citizens, so to give prosecutors, police, or other enforcers of the law very broad, rarely used precedents is extremely dangerous.

The system is not symmetric and it's not supposed to be. For example, the prosecution is required to disclose all of their evidence to the defense, but the defense has almost no requirements to disclose evidence to the prosecution.

A defense attorney who has proof that their client is 100% guilty must still defend their client to the best of their ability. A prosecutor who believes that the accused is innocent is ethically required to dismiss the case. (Obviously, this doesn't always happen, but it's supposed to.)

Sure, if we also provide every citizen with the entire set of laws that they are supposed to obey, in an intelligible format. As the prosecutor said in TFA, "everyone is guilty of something", because there are too many laws in force, and no-one knows them all.

Add to that the costs of defending a court case, and the prosecutor has more-or-less complete power - they can financially ruin someone at will, just (as in this case) by deciding to enforce an obscure law that the defendant didn't even know about.

So making the prosecutors adverserial to the citizens, while giving them absolute power to destroy anyone they don't like, is a recipe for corruption.

The laws were on the books, and the public's opposition to what the movie-maker was doing seems to fit in with the intent and scope of the laws. Maybe you can blame him for selective enforcement, but I don't think that qualifies as a miscarriage of justice. (That is, of course, assuming we take at face value that his denial that he didn't steal and ship a copy of the movie to Oklahoma.)

The prosecutor took measures to avoid normalizing what he and the community saw as deviant behaviors. That's one of the key purposes of law: it allows society to express its condemnation of certain conduct.

Selective enforcement is absolutely a miscarriage of justice. Justice is the character of law that makes it fair. If you disagree with this, I would like to hear your defense.

The world is an inherently unfair place so it's dubious that laws that attempt to regulate it should be fair.

What you have there is an argument that is true but also unacceptable. It is true that the world is unfair and that pushing it into a fair state is impossible.

However we can't formally accept that as a society without kicking out one of the main pillars supporting the justice system. If we expect and accept that the justice system to produce unfair outcomes it becomes challenging to justify having court appearances. We could get unfair outcomes much more efficiently by just letting the police and DA arrest whoever with regular internal purges against corruption.

Selective enforcement may or may not be a miscarriage of justice. Here, you have a law where changing standards of morality may have rendered the full scope of the law obsolete. But there is conduct within the scope of the law that the community still considers egregious. I don’t think it is “unfair” to enforce the law against that conduct, but not enforce it against other conduct the community no longer considers wrongful.

I disagree. If the community wants to make that illegal, they should make it explicitly illegal, and go through the formal processes of review and enactment that allow for checks on the power of the government. Incredibly broad, rarely enforced laws only allow for corruption by the powerful. If communities should be allowed to use the full force of law (which, of course, can legitimately steal from you, lock you up, or kill you) to maintain social norms without them being explicitly defined, then what is the point of law in the first place? (Which is arguably a system of explicitly defining norms and the consequences of breaking them, with the implication that these norms are universal.)

Those laws should never have been used, and if the community wanted to dissuade future productions, they should have passed laws at the city, county, or state level that allows for the proper checks and balances.

one of the things that the founders of the American Republic attempted to do was to avoid the tyranny of the majority, that the public is opposed to what someone does and thus, for political purposes, laws are selectively enforced to punish the person the public dislikes seems to be a clear incident of such a tyranny.

The framers did not intend to preclude communities from enforcing laws regulating standards of decency and morality. This person was not prosecuted because people didn’t like him, he was prosecuted because he did something that was illegal and went far beyond the other, perhaps technically illegal, conduct prosecutors otherwise let slide.

Many people broke the law but weren't prosecuted because they didn't go far enough to justify it. This person broke the law and was prosecuted because he went further. Sounds to me like he was, in fact, prosecuted because people didn't like him.

Sure, in a sense they prosecuted him because they didn’t like him, but it’s because he went too far. It’s like prosecuting someone doing 30 over the speed limit but looking the other way when someone does 5 over. Yeah, we don’t like reckless drivers so we prosecute the first guy. But it’s not arbitrary, and it’s not improper.

Not that this is particularly important to your point, but 30 over vs 5 over is usually a different law.

I'd argue that there's a qualitative difference between selective enforcement that involves informal standards that evolve over time (e.g. police ignoring anyone who breaks the speed limit by less than 10MPH) and selective enforcement that involves a law that hasn't been enforced for centuries being pulled out of retirement and aimed at a single individual.

All of that seems to equally apply to a prosecutor going after runaway slaves and their accomplices at the time when slavery was legal and accepted in community, does it not?

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