5 Reasons The Comey Hearing Was The Worst Education In Criminal Justice The American Public Has Ever Had

What America Saw on July 7th in No Way Resembles Our Justice System

Here's his intro:

...speaking as a long-time criminal attorney, what I heard discussed on July 7th, 2016 during FBI Director James Comey’s testimony before Congress in no way resembles the criminal justice system I worked in as a public defender between 2000 and 2007. In representing more than 2,000 indigent defendants in multiple jurisdictions, neither the values nor practices I heard described by Director Comey were at all familiar to me. I feel compelled to speak out about this in part because Comey’s testimony before Congress coincides with the deaths of Alton Sterling and Philando Castile ― not to mention scores of other highly publicized shootings of unarmed black men by police officers ― and I have not yet seen anyone draw the connection between the differential treatment poor (or any) black men receive in our criminal justice system and the disparately favorable treatment rich and powerful white people like Hillary Clinton do. But Director Comey’s gymnastic rewriting of what it means to prosecute crimes in America, just in time to rescue Hillary Clinton’s political career, is so unsettling that not speaking out about it isn’t an option. That’s particularly true because it gives me a chance, also, to discuss the recent focus on how black lives are honored ― or not honored ― in the criminal justice system. That conversation, which America is now having, is, much like the blunt and legally sound analysis of Clinton’s email troubles we’re finally getting in major media, long overdue.

What follows are the lead paragraph or so for each of the five points - well worth reading the whole piece:

1. According to Comey, Clinton committed multiple federal felonies and misdemeanors. Many people will miss this in the wash of punditry from non-attorneys in the mainstream media that has followed Comey’s public remarks and Congressional testimony.

The issue for Comey wasn’t that Clinton hadn’t committed any federal crimes, but that in his personal opinion the federal felony statute Clinton violated (18 U.S.C. 793f) has been too rarely applied for him to feel comfortable applying it to Clinton. This is quite different from saying that no crime was committed; rather, Comey’s position is that crimes were committed, but he has decided not to prosecute those crimes because (a) the statute he focused most on has only been used once in the last century (keeping in mind how relatively rare cases like these are in the first instance, and therefore how rarely we would naturally expect a statute like this to apply in any case), and (b) he personally believes that the statute in question might be unconstitutional because, as he put it, it might punish people for crimes they didn’t specifically intend to commit (specifically, it requires only a finding of “gross negligence,” which Comey conceded he could prove). Comey appears to have taken the extraordinary step of researching the legislative history of this particular criminal statute in order to render this latter assessment.

2. Comey has dramatically misrepresented what prosecutorial discretion looks like. The result of this is that Americans will fundamentally misunderstand our adversarial system of justice.

snip

James Comey, in his testimony before Congress, left the impression that his job as a prosecutor was to weigh his ability to prove a case beyond a reasonable doubt not as a prosecutor, but as a member of a prospective jury. That’s not how things work in America; it certainly, and quite spectacularly, isn’t how it works for poor black men. In fact, what American prosecutors are charged to do is imagine a situation in which (a) they present their case to a jury as zealously as humanly possible within the well-established ethical code of the American courtroom, (b) all facts and inferences are taken by that jury in the prosecution’s favor, and then (c) whether, given all those conditions, there is a reasonable likelihood that all twelve jurors would vote for a conviction.

That is not the standard James Comey used to determine whether to prosecute Hillary Clinton.

3. Comey left the indelible impression, with American news-watchers, that prosecutors only prosecute specific-intent crimes, and will only find a sufficient mens rea (mental state) if and when a defendant has confessed. Imagine, for a moment, if police officers only shot unarmed black men who were in the process of confessing either verbally (“I’m about to pull a gun on you!”) or physically (e.g., by assaulting the officer). Impossible to imagine, right? That’s because that’s not how this works; indeed, that’s not how any of this works. Prosecutors, like police officers, are, in seeking signs of intent, trained to read ― and conceding here that some of them do it poorly ― contextual clues that precede, are contemporaneous with, and/or follow the commission of a crime.

But this apparently doesn’t apply to Hillary Clinton.

4. Comey made it seem that the amount and quality of prosecutorial consideration he gave Clinton was normal. The mere fact that Comey gave public statements justifying his prosecutorial discretion misleads the public into thinking that, say, poor black men receive this level of care when prosecutors are choosing whether to indict them.

While at least he had the good grace to call the fact of his making a public statement “unusual” ― chalking it up to the “intense public interest” that meant Clinton (and the public) “deserved” an explanation for his behavior ― that grace ultimately obscured, rather than underscored, that what Comey did in publicly justifying his behavior is unheard of in cases involving poor people. In the real America, prosecutors are basically unaccountable to anyone but their bosses in terms of their prosecutorial discretion, as cases in which abuse of prosecutorial discretion is successfully alleged are vanishingly rare. Many are the mothers, fathers, sisters, and brothers of poor black men who would love to have had their sons’ (or brothers’, or fathers’) over-charged criminal cases explained to them with the sort of care and detail Hillary Clinton naturally receives when she’s being investigated. Clinton and the public “deserve” prosecutorial transparency when the defendant is a Clinton; just about no one else deserves this level of not just transparency but also ― given the year-long length of the FBI investigation ― prosecutorial and investigative caution.

5. Comey, along with the rest of Congress, left the impression, much like the Supreme Court did in 2000, that legal analyses are fundamentally political analyses. Not only is this untrue, it also is unspeakably damaging to both our legal system and Americans’ understanding of that system’s operations.

When Comey says, “any reasonable person should have known” not to act as Clinton did, many don’t realize he’s quoting a legal standard ― the “reasonable person standard.” A failure to meet that standard can be used to establish either negligence or recklessness in a court of law. But here, Clinton wasn’t in the position of a “reasonable person” ― the average fellow or lady ― and Comey wasn’t looking merely at a “reasonableness” standard, but rather a “purposeful” standard that requires Comey to ask all sorts of questions about Clinton’s specific, fully contextualized situation and background that he doesn’t appear to have asked. One might argue that, in keeping with Clinton’s campaign theme, no one in American political history was more richly prepared ― by knowledge, training, experience, and innate gifts ― to know how to act properly in the situations Clinton found herself. That in those situations she failed to act even as a man or woman taken off the street and put in a similar situation would have acted is not indicative of innocence or a lack of specific intent, but the opposite. If a reasonable person wouldn’t have done what Clinton did, the most exquisitely prepared person for the situations in which Clinton found herself must in fact have been providing prosecutors with prima facie evidence of intent by failing to meet even the lowest threshold for proper conduct. Comey knows this; any prosecutor knows this. Maybe a jury would disagree with Comey on this point, but his job is to assume that, if he zealously advocates for this extremely powerful circumstantial case, a reasonable jury, taking the facts in the light most favorable to the government, would see things his way.