Saturday, December 29, 2012
Re David Gregory's deliberate breaking and unwitting mockery of a dimwitted law
My blogospheric friend Patrick Frey — a/k/a Patterico in the blogosphere, but by day a senior felony prosecutor for some of the most violent and gang-ridden parts of Los Angeles — posits an interesting question: "Should David Gregory be prosecuted?" (The background to and context for this inquiry is concisely explained there, so I won't repeat that here.) Frey's commenters, from across the political spectrum (including some articulate leftie opinions too), offer some interesting comparisons, ask some provocative follow-up questions, and make some excellent points.
114. Because of his defiant mockery of the law, he should be prosecuted.
Because the law is ridiculous, his sentence (fine and jail time) should be suspended. But he deserves to have the conviction on his record, forever.
170. In my comment above (#114 — 12/28/2012 @ 1:06 pm), I opined that David Gregory “should be prosecuted[, but that b]ecause the law is ridiculous, his sentence should be suspended.” I frankly was assuming he’d plead guilty in exchange for the suspended sentence, and I’m still confident that would be the likely outcome if he were prosecuted (which he won’t be).
But in my assumptions, I was skipping a possible step: the trial.
And frankly, despite my utter and complete lack of regard or sympathy for Mr. Gregory, I’d be almost equally happy either to see the jury hang or to see him acquitted outright as to see him convicted (and his sentence suspended), because:
On these facts, an acquittal could only happen through an act of collective and willful civil disobedience by the jurors — “jury nullification,” which the judge's instructions would likely forbid the jurors to do, but which the judge could do nothing to correct if it happened. It would be useful for a Washington, D.C., jury to produce such a vivid data point on the practical unenforceability of such laws even when they are violated on national television; and
A hung jury, or better, a series of hung juries, demonstrates the same point, but with the Kafkaesque but karmically appropriate wrinkle that Gregory is re-subjected to trial again and again.
What we are talking about here is not just the way laws are applied, but the way they are seen to be applied. The latter is as essential to an ordered society under the Rule of Law as the former. It corrodes the Rule of Law to punish Gregory for this indisputable and indisputably silly crime. But the Rule of Law is likewise corroded if we selectively pretend that this law doesn’t exist, or if we pretend that David Gregory didn’t break it.
That’s why he should be prosecuted, regardless of the outcome. The worst of all worlds is having a law like this on the books but having it enforced (or threatened to be enforced) arbitrarily.
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(1) DRJ made the following comment | Dec 29, 2012 4:52:56 PM | Permalink
Aaron Worthing suggests a solution that might work for you, Beldar.
(2) Gregory Koster made the following comment | Jan 1, 2013 2:24:56 PM | Permalink
Dear Mr. Dyer: Gosh, it's good to see you back again. I thought The Won (II) might have floored you for good. Glad to see that isn't so.
As practical wisdom, I think this comment on Mr. Frey's site is sound:
"The best way to deal with a stupid law is to enforce it consistently."
Yes. Will that happen? No. Why? Well, it isn't a "stupid law." It's a law for the peasants, you and me. But NOT for David Gregory. Or James Webb. or constitutional law professors (with tenure, of course.) Or---you get the idea. It will be poetic justice to run Gregory through a meatgrinder of hung juries, but it will never go to trial. DC is a federal enclave. Eric Holder will see that Gregory's wrist is slapped, no more.
But I'm still waiting for a legal light to explain to me why jury nullification is "willful civil disobedience" compared to "Prosecutorial Discretion" a/k/a Superior Wisdom. Despite all the buckets of condescension poured on this question, it always surfaces after the deluge, the Mike Nifong skull and crossbones waving happily.
Gregory is a hog, but even hogs deserve legal process. So give it to him: Wayne La Pierre files a civil suit for all the emotional anguish he suffered as Gregory waved that DANGEROUS! GUN!! PART!!! at him. The discovery in such a case e.g. how did NBC get hold of such a magazine? would be worth a great deal. It won't happen, any more than Russert had to suffer for his blubbering lies in the Scooter Libby case..
Bill, an e-mail I sent to Aaron when he prodded me about his (frankly ridiculous) petition to la Casa Blanca:
I don't want David Gregory to be "pardoned," whether literally or via some squishy "people's pardon." I want David Gregory to stand trial.
I want him to stand trial, and in the full realization that he is fighting for his very freedom, I want to see him argue that a ban on magazines holding more than ten rounds violates his Second-Amendment rights.
I want to see the district court convict and the circus court uphold the conviction; and then I want to see the Supreme Court rule that a ban on high-capacity magazines is, no duh, an "infringement" upon the right of the people to keep and bar arms. (I predict a 6-3 decision -- one of the leftist justices throws in with Gregory, the [quasi] liberal journalist, instead of the mugwumps and knownothings in the anti-gun Left.)
That would represent a much greater service to civil society than anything else Mr. Gregory has ever done!
When the going gets tough, I can always be counted upon to wander off into a detour...
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