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EDITORIAL VIEW---
Jury Nullification – The People's Equivalent to Prosecutorial Discretion
By Donald V. Watkins
©Copyrighted and Published (via Facebook) on February 5, 2017
©Copyrighted and Published (via Facebook) on February 5, 2017
Since Friday, I have been flooded with calls from readers about Alabama Attorney General Luther Strange's sellout of Alabamians when he used "prosecutorial discretion" to give Governor Robert Bentley and his married girlfriend, Rebekah Caldwell Mason, a "pass" on prosecuting them for state election and ethics law violations in exchange for Bentley's appointment of Strange to Jeff Sessions' soon-to-be-vacant U.S. Senate seat. People want to know what can be done when the state's top prosecutor trades his integrity for a gubernatorial appointment to a senate position he has always wanted in Washington, DC.
With this sellout, Luther Strange abandoned his affirmative duty to enforce Alabama's public corruption laws on an even-handed basis. Strange is allowing an obviously guilty Governor Bentley and Rebekah Mason to walk free on state election and ethics law violations. Bentley and Mason got what they wanted in the sellout deal, and Strange will apparently get what he wants. The good people of Alabama are getting what they always get – a royal screwing by a politician they once trusted to do the right thing.
Strange's sellout to Bentley and Mason is a classic case of where a prosecutor's individual self-interest trumped the public's interest in bringing a flamboyant pair of public corruption crooks to justice. And, all of this played out within the context of a state criminal investigation. We are told that Strange even persuaded federal criminal authorities to back away from Bentley and Mason in order to let him handle the couple's case under state criminal laws.
Just to be clear, the "prosecutorial discretion" used by Strange to avoid prosecuting Bentley and Mason has been around in the criminal justice system for a very long time. It is a particularly useful tool for prosecutors who want to "fix" criminal cases for rich and powerful individuals, or who are afraid of prosecuting well-connected political and business leaders.
Have you noticed, for example, that none of the rich and powerful business leaders who bribed former Alabama House Speaker Mike Hubbard has been charged by Strange's office with bribery?
Fortunately, our American system of justice provides ordinary citizens who answer the call for jury duty with a tool that is the functional equivalent of prosecutorial discretion. It is called "jury nullification". This simply means that jurors in a particular case may choose to not convict a lesser-known defendant who is accused of the same or similar crimes for which big-time criminals like Robert Bentley and Rebekah Mason were not prosecuted. In recent years, jury nullification has occurred when jurors concluded that the law in question was unfairly applied between different classes of people. It is the jurors' way of sending a message to compromised prosecutors that they will NOT tolerate disparate treatment in public corruption cases within the criminal justice system.
As we have seen in the Bentley and Mason case, prosecutors are not obligated to bring any criminal charges against obviously guilty defendants. Likewise, jurors are under no obligation to convict defendants who may have committed the same or similar crimes as Robert Bentley and Rebekah Mason. There is no obvious reason in the criminal justice system why one type of discretion is better than the other.
Strange's political "fix" of the Bentley-Mason criminal case shows that prosecutorial discretion may be worse. Without a doubt, Strange's prosecutorial discretion was exercised in the Bentley-Mason case for selfish personal and political reasons. Furthermore, Strange is regular player in the state's criminal justice system, which makes a self-serving politician like him susceptible to corruption in ways that jurors — ordinary citizens who come together for a single case — are not.
Jury nullification, which has a history in America dating back to the founding of this country, also serves as an important check and balance on the arbitrary, capricious, and abusive use of government power by corrupt prosecutors. Moreover, it constitutes the last measure of direct power that the ordinary citizens have to level the playing field in a criminal justice system that forgives public corruption by top officials while prosecuting corruption allegedly committed by lesser-known officials.
Now that Luther Strange has sold his soul to a depraved, corrupt, and despicable Robert Bentley and Rebekah Mason, we expect the Attorney General's office to roll out a parade of run-of-the-mill ethics violations allegedly committed by city council and water works board members in Birmingham and other little-known public officials as a PR effort to make it look like state prosecutors are being tough on public corruption. Local federal prosecutors may do the same as cover for Luther Strange.
In fact, on March 27, 2017, state prosecutors are scheduled to begin the "forgery" and "theft by deception" trial of Dr. Kevin Rolle, an executive vice president at Alabama A&M University ("AA&MU"). I have written about this case on several occasions. It is the only criminal case that came out of a four-year, $4 million criminal investigation by state and federal grand juries looking into allegations of "widespread corruption" at AA&MU and Alabama State University after special audits of more than $2 billion of combined expenditures between these universities over a six-year period. Ironically, Governor Bentley instigated the criminal investigations in his infamous role as Alabama's "Chief Magistrate". Bentley's requests for criminal investigations of these universities occurred while he was using hundreds of thousands of tax dollars, "dark money", and campaign funds to romance Rebekah Mason and feather her nest.
The "theft by deception" that Dr. Rolle allegedly committed consisted of a $6,500 advance he received from AA&MU to cover his moving expenses from South Carolina to Huntsville, as authorized under the express terms of his university employment contract. The actual cost of Dr. Rolle's move by a well-know commercial moving company was $7,300. The so-called "theft" of funds, which cost Alabamians $4 million to "uncover", netted Dr. Rolle with $800 less in moving expenses than he was legally entitled to receive under his contract.
Dr. Rolle's criminal case cries out for the fair administration of justice. He will not get it from Luther Strange because Strange has been too busy licking Robert Bentley's boots for an appointment to Sessions' senate seat. Fortunately for Dr. Rolle, jurors have the power to level the playing field and fairly administer justice in his case.
Robert Bentley and Rebekah Mason are dripping with criminal culpability for public corruption and ethic law violations. They have not been criminally charged because Luther Strange cut an unsavory political deal with Bentley for an appointment to Sessions' senate seat. Bentley and Mason are the beneficiaries of Strange's political greed and selfishness.
Luther Strange has exercised his prosecutorial discretion in favor of Governor Bentley and Rebekah Mason. Now, jurors across Alabama have the option to exercise their functional equivalent to prosecutorial discretion in similar public corruption cases involving lesser-known defendants. Only then, will things change for the better in Alabama's criminal justice system.
Donald V Watkins
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