Louisiana's Chief Persecutor

Louisiana's Attorney General, Charles Foti, needs to move on. The grand jury found no probable cause to pursue murder charges against a doctor accused of killing her patients during Hurricane Katrina. Probable cause is a very low standard. To borrow from the old adage, the grand jury essentially told the prosecutors that their case fell at least a slice of bread short of a ham sandwich.

Undeterred, Mr. Foti wants to make his case to the public. He has released reports from supposed medical experts hired by his office that suggest that the deaths should be ruled homicides. This isn't about prosecution; it's persecution. Given that State prosecutors have exclusive control over what evidence is presented to the grand jury, one has to wonder (because grand jury proceedings are secret) whether (a) the grand jury saw these reports and remained unmoved or (b) the State, for whatever reasons, simply chose not to present the evidence to the jury. Either way, the grand jury has spoken, and that should put the matter to rest. To be sure, it is in theory possible for the State to simply present its case again to another grand jury. (The Constitution's Double Jeopardy prohibition does not apply to grand jury proceedings.) But that would be highly unusual. (In the federal system, line prosecutors must get approval from the Assistant Attorney General for the Criminal Division to take s second bite at the grand jury apple.)

Mr. Foti is essentially thumbing his nose at the very criminal justice system he's supposed to support. The grand jury serves as a bulwark against prosecutorial overreaching. It ensures that the State has at least probable cause (i.e., it's more likely than not that a crime has been committed) before pursuing a felony prosecution. Mr. Foti apparently finds the grand jury inconvenient, or at least irrelevant, when it conflicts with his personal assessment of the merits of a case. I only wish the State showed such fervor when it pursues other serious crimes -- like the countless street murders. Alas, Louisiana is mired in moral questions over doctors' treatment of terminally ill patients rather than focusing on the literally black and white issues of street thuggery.

I wonder how Mr. Foti has acquired such god-like certainty in this particular case. He is not a doctor. The Coroner found the evidence inconclusive. Loads of doctors have weighed in with varying opinions on the matter. At bottom, however, none of them were there (except, of course, the accused Dr. Pou) when the events in question transpired. With all due respect, I'm not even sure what Mr. Foti's qualifications are as a lawyer. As far as I can tell, he served as the Parish Sheriff for three decades and hardly ever practiced law before being elected AG. That's not to say he's unqualified. (You can judge his qualifications and accomplishments for yourself.) It's merely an observation that he doesn't seem to be in the best position to judge. Indeed, our justice system leaves that to the grand jury. Unless, of course, Mr. Foti brings back the Inquisition.

Mercy Killing

It has been a long battle, but a grand jury mercifully put an end to Attorney General Foti's misguided prosecution of Dr. Pou and two nurses from Memorial hospital who stood accused of killing several terminally ill patients during Hurricane Katrina. Score one for common sense. As for the Attorney General's Office witch hunters that still gripe that these were "homicides," the grand jury is the judge of that, so quit the grandstanding.

PD Update

Several people have asked me about the current state of affairs in New Orleans. This article provides a good summary of the public defender system. In short, it is on the right track, but it has a way to go. Having worked with some of the people named in the article, I can assure you it is in good hands.

Crime Solution: A Group Hug

A glass of red wine a day supposedly keeps your heart in order. Who knew a little wine and cheese, coupled with a group hug, could ward off crime. This story is unbelievable, but true.

Vitter's Vittles

We're all tired of sanctimonious lawmakers being outed for their own indiscretions, and probably equally tired of hearing that we should care about what politicians do in the privacy of their own bedrooms (or offices). But Ann Althouse makes a compelling point about the imbalance between Senator Vitter's self-pardon and the continuing prosecution of the madam who allegedly served him.

Trading Places

The President has commuted the sentence of I. Lewis "Scooter" Libby, who stands convicted of perjury and obstruction of justice. This means Libby remains, nominally, a convicted felon, but he has been spared the inconvenience of a two-and-a-half year jail sentence. He still has to pay a $250,000 fine, but surely the defense fund his well-heeled cronies have managed to scrape together will cover that. And even if he has trouble finding work in the public sphere -- the public he supposedly so lovingly served, save Valerie Plame and the rule of law -- I trust he'll be able to cash in on his connections and land some million-dollar-a-year job working for the likes of Halliburton. If only every felon had it so tough.

The case can be made that Mr. Libby is a decent man and dedicated public servant who was unfairly scapegoated for a failed war policy. It also could be argued that his mild manner and low public profile merely shielded from scrutiny most of his behind-the-scenes evil industry. Your partisan compass likely will dictate which pole has the greater gravitational force of truth. But the rule of law is not so much about truth as it is about judgment and order.

Mr. Libby was adjudged a criminal unanimously by a jury of twelve men and women. The jury, we must presume, had no political bone to pick and no score to settle. They had only facts to judge as challenged and filtered by the best legal defense team available. Mr. Libby was free to compel any witness he desired to testify on his behalf. All men are equals before the law, and even then Mr. Libby likely enjoyed vastly superior resources than just about any other defendant who passes through the system to face even more serious charges. Only Mr. Libby knows exactly what he did and what he intended, but it is left to the legal system -- not political pundits, professional or not -- to sit in judgment and delineate right from wrong.

The President's decision to commute a sentence (be it Mr. Libby's or anyone else's) disrupts the ordered scheme of justice. It is a power that presidents are expected to use sparingly to correct injustices inflicted by the system. And that, of course, is precisely the rub. Mr. Libby's case is not one truly about justice; it is a case about the political compass. (And I do not mean to suggest Mr. Libby's case is any different in that regard than other controversial pardons and commutations.) Sure, Mr. Libby's fate may seem harsh and unfair, but explain that to all the other persons who are convicted of more minor offenses on more slender facts but without all the political fanfare. If only every petty criminal who is unfairly convicted and faces prolonged incarceration had the benefit of political allies (or really any allies) who could wipe away their unfair sentences with the wave of a hand. Surely they all would gladly trade places with Mr. Libby.