Saturday, August 17, 2013

The non-recommendation recommendation (and other government bullshit)

When some prosecutors argue in court, the things they sometimes say are so absurd (and often factually wrong) that I wish the trial judges had some inner Professor Kingsfield and could muster the courage to call bullshit, i.e., tell the prosecutors that they’re offending the concepts of logic, reason, and truth.  The recent case of State v. Locke perfectly illustrates this all too common problem.  In Locke, the prosecutor induced the defendant to plead guilty to some serious felonies, thus saving the prosecutor and the court several days in trial, and taking away all risk that a jury could find the defendant not guilty.  In exchange for the pleas, the prosecutor agreed not to make a specific sentence recommendation.  That is, the prosecutor retained the right to talk about the offenses and say negative things about the defendant, but he promised to leave the specific sentence up to the judge.  So what happened at the sentencing hearing?

After the prosecutor got what he wanted from the defendant, he decided to renege on his part of the deal.  He specifically recommended a sentence—not just any sentence, but the maximum possible sentence—of “50 years.”  And when the defense lawyer objected, how did the prosecutor respond?  He said: “So the recommendation here is a non-recommendation.” (¶ 3.)

Now that’s some serious bullshit.  Although the printed transcript can’t capture it, I’ll bet the prosecutor was even winking at the judge while the pure nonsense flew out of his mouth.  Fortunately, the appellate court was quick to catch on:

Surely, labeling the recommendation a “non-recommendation” does nothing to change the nature of the statement itself. . . . When the court reminded the prosecutor a recommendation was impermissible, the prosecutor appeared to reaffirm his “non-recommendation”: “Right, that’s what I’m saying.” (¶¶ 6-7.)

It seems like this prosecutor was trying to confuse things by playing “opposite day” in court.  In any case, that’s not the worst of the bullshit.  On appeal, the government’s appellate counsel defended the prosecutor’s sentence recommendation of “50 years” by arguing that the statement “was ambiguous and not an explicit sentencing recommendation.” (¶ 8.)  “Arguments” like this make me wish law school was more rigorous and flunked more students.

In other government-related bullshit, a published report reveals that the NSA violated not just the law, but even its own privacy rules and procedures a total of 2,776 times when recently spying on us citizens.  However, the NSA director of compliance assures us that none of these 2,776 proven violations were intentional.  “NSA has a zero-tolerance policy for willful misconduct,” and “none of the incidents that were in the document released were willful.”  (This is not an Onion article; rather, it came from The Wall Street Journal, sub. req.) 

What’s next?  Is the government gonna tell us that it was lying to us for decades when it repeatedly denied the existence of secret government operations at Area 51, thereby dropping it below even Fox Mulder on the credibility scale?  Oh, wait.  That just happened, too.

The only real question is this: Why would anyone seriously listen to anything that any government agent has to say?


  1. Remember back in the Clinton years when the "Only in America__________" sayings were as rampant as they were embarrassing? I wouldn't have guessed that they'd be back so soon. Luckily the subject matter isn't just limited to that, and now we can make jokes like Yakov Smirnoff!

    With 2013 NSA, you don't explore space, space explores you! or
    With 2013 NSA, you don't watch Big Brother, Big Brother watches you!

    We hoped!!! We got change!!!

    But you posed the question: Why would anyone seriously listen to anything that any government agent has to say?

    I delayed posting for a bit to ponder. I can't think of anything else.
    Or if not that, taxes…with which non-compliance eventually leads to…imprisonment.

    It’s one thing for government agents to effect takings on you as a result of earnings. It’s worse when takings are necessary as a condition of citizenship (the unAffordable Care Act). It’s yet another when it’s done disproportionately or excessively (ex. Phil Mickleson & his 53% tax rate).

    By what I choose to call "The Transitive Property of Taxation" (or "The Transitive Property of Stupidity" if you prefer) civil "servants" find shoring up the vote of Obamaphone recipients worth threatening you with imprisonment for withholding what government claims as legitimate takings.

    Have a beer & think about that one. How's that for some bullshit?

  2. Michael, let's not be too hard on Fox Mulder - he never pretended to be anything other than a fictional character, despite the close resemblances he bore to some real-life characters I've encounteered.