Democratic lawyer and law professor Alan Dershowitz shook things up on Friday by severely criticizing the prosecutor in the Trayvon Martin case:
Calling the affidavit “not only thin, [but] irresponsible” and accusing the prosecutor of kicking off her reelection at the news conference is strong stuff.
But even tougher was former federal prosecutor Andy McCarthy, who lambasted Angela Corey: “This affidavit is not law, it is agitprop: invoking, for example, the explosive term ‘profiled’ but carefully avoiding any discussion of what it means and failing to note that (a) there is no evidence of racial profiling, and (b) absent an invidious racial component there is nothing wrong with profiling (indeed, we want police to do it so that innocent people don’t get hassled).” A sample of his criticisms of the charging document:
There are ambiguities in the complaint that more information could have cleared up. The prosecutor has more information. Yet, she chose to leave matters ambiguous. That strongly suggests the additional information would hurt the prosecution’s case — a suggestion that is bolstered by the affidavit’s self-serving omission of any mention of Zimmerman’s injuries (and, for that matter, by the fact that the prosecutor chose not to submit the case to a grand jury but, instead, unilaterally decided to charge base on ambiguous allegations). . . .
[I]t is reasonable to assume that if the prosecutor had evidence that Zimmerman physically attacked Martin, she would say so. Instead, the prosecutor cagily says, “Zimmerman confronted Martin [note the active voice is used when nothing criminal is claimed -- “confronting” someone is not a crime] and a struggle ensued” [as if the struggle, presumably meaning the physical encounter, happened spontaneously -- no one is identified as initiating it]. If I ask, “What are you doing?” and you respond by punching me in the nose, and this leads us to grapple, my having confronted you does not alter the fact that you are responsible for the ensuing struggle. Again, we know that the prosecutor has an account from Zimmerman — and perhaps from other witnesses — and thus probably has a good idea of exactly how the physical altercation started. Yet, she knowingly withheld that information (in addition, again, to the information about injuries sustained by Zimmerman).
I largely agree with McCarthy and Dershowitz, although I am willing to consider the possibility that there might be legitimate reasons for leaving some information out (e.g., contaminating witnesses).
It is especially important for conservatives, who have historically been on the side of “law and order” (largely in reaction to the Warren Supreme Court and the unraveling of effective criminal justice in the 1960s and 1970s), to consider the lessons of the past few years concerning prosecutorial overreach and abuse. From the Scooter Libby travesty to the miscarriage of justice in the Conrad Black case to the prosecutorial misconduct in the trial of former Alaska senator Ted Stevens, we have seen that prosecutors are not always ethical or appropriately restrained. Of late some conservatives have tuned into the phenomenon dubbed “overcriminalization,” namely the use of poorly drafted and vague statutes to institute criminal prosecutions. It is an issue that should concern conservatives, liberals and libertarians alike.
In sum, the Martin case may be giving conservatives newfound awareness of the potential for prosecutorial abuse. As defenders of limited government, the Constitution and individual rights, conservatives should be no less concerned about abuse by prosecutors than by other governmental actors. The power of prosecutors is an awesome one, which, in the caldron of public pressure, can do great damage. With regard to the Martin case, we should let the court do its work but also maintain viligence.