Tuesday, August 12, 2008
[From Ian Weinstein]The case of Salim Hamdan has been on my mind all week. I share the wonder at the jury’s rejection of the more serious conspiracy charge and its imposition of a rather modest sentence but I don’t want to romanticize the Hamdan jury or result. I think history will come to regard this case as emblematic of our era's signal failure of law. This military jury, however, gave the government a nice shove. Their final and unreviewable judgment rejecting some of the charges reflects the real power vested in American jurors. Although the mixed verdict introduced a note of ambiguity, the result is still a testament to the institution of the jury and to these jurors’ courage and clear sightedness.
Of course the shove was not as hard as it would have been if the Government actually felt itself bound to release Mr. Hamdan soon, as the judgment appears to require. They, however, prefer their backup plan of holding him as an enemy combatant to obeying the rule of law. But I still think the jury verdict is important and interesting, as one may more fully appreciate by considering these basic facts of modern American criminal practice:
First of all, everyone is guilty of something. In the era of overcriminalization, criminal law casts a very wide net. Bill Stuntz taught us this.
Given the breadth of our substantive criminal law and our very broad rules of accomplice and co-conspirator liability, a reasonably talented prosecutor should be able to find some charge on which a given person can be convicted. If the person happens to work in a regulated industry or hold a professional license of some sort, it is like shooting fish in a barrel. But if those circumstances don’t present, you can always start an investigation and see if the subject will become reactive - something useful usually comes out of that. [Mark Godsey]