Page 45 - CLT010421

EXPERT OPINIONS JANUARY 4, 2021 ¦ 45

time because, as prosecutors put it, a probationary reasonable doubt yields to the practical realities of
sentence would send the “wrong message.” prosecutors with overburdened caseloads. But the
A crime for which people consistently receive legal justification for that practical reality is predi-
sentences of substantial prison time is obstruction cated on the plea deal process being fundamentally
of justice. That crime carries with it the potential fair. That is, prosecutors should not charge you with
for 20 years in prison. What kind of conduct would a crime for which there is a questionable founda-
warrant an arrest on this charge? In Papadopoulos’ tion, simply in order to coerce you into pleading
case, his “obstruction” amounted to the following: guilty to a lesser offense.
After a second voluntary interview with the FBI— When we talk abstractly about “prosecutorial
this time with his then-counsel present—he “shut discretion,” what we really mean is prosecutorial
down his Facebook account.” That’s it, folks. To power. And I mean power in the most serious,
be clear, he did not delete his Facebook account, non-frivolous sense of the word. It’s the power to
and thereby destroy any supposed “evidence” that deprive another human being of his liberty, his
might have been there. No, he ability to make a living and put
simply deactivated it. food on the table for his family,
Again to be clear, ask anyone or even his life. And because our
under the age of say, 40, and current criminal justice system
they will tell you that deactivat- Ask any seasoned criminal is one of plea bargains, not tri-
ing a Facebook account does als—that power has shifted from
not delete materials contained defense attorney, and judges to prosecutors. See Emily
therein. One can “reactivate” it they will tell you that Bazelon’s new book “Charged”
at any time with all communi- defendants plead guilty for an eloquent argument of how
cations intact. In various court every day to crimes they pervasive this problem is.
filings, transcripts and emails,
didn’t commit. Procedural safeguards for due

the special counsel prosecutors process are the foundation of
admitted that their position our criminal justice system. The
was that Papadopoulos’ deacti- integrity of our democratic soci-
vation of his Facebook account ety depends on them. You simply
in no way destroyed or concealed or had the abil- cannot put someone in jail—even for a crime they
ity to destroy or conceal evidence relevant to the did commit—if the procedure by which you did it
FBI’s investigation—not to mention that they was tainted. That’s what makes America, well, great.
had a “judicially authorized search warrant” al- That’s what makes our system unlike, say, Russia’s,
ready in place to collect every communication on for example. And that is why there was ample rea-
the account prior to its deactivation. So why then son to grant Papadopoulos a pardon without it be-
was Papadopoulos charged with obstruction in ing a precedent for anyone else or suggesting any-
the first place? thing untoward by the president for granting it. It
Unsurprisingly, the threat of 25 years in prison, a serves as a vindication of the process itself which, as
half-million dollar fine, and six years of supervised the special counsel’s legacy reminds us, is as worthy
release tied to the obstruction and false statements of pursuit as any underlying crime.
charges provided ample incentive for Papado- ¦

poulos to take a deal. This is an unfortunate real- Caroline Johnston Polisi, a partner at Armstrong
ity in the American criminal justice system, where Teasdale, applied for executive clemency on
the constitutional ideal of proving guilt beyond a George Papadopoulos’s behalf.

CONNECTICUT
Law Tribune