"All Prosecutors Are Bastards" When?

Kyle Rittenhouse has been acquitted. Appropriately so.

As a defense attorney with an affinity for firearms and self-defense, I was mystified from the beginning by how exactly the prosecution was going to prove its case. My impressions of the case have barely changed from the get-go, but I think only because (in my mind) we've had such a clear documentation of what transpired from the very start.

I definitely have immense trouble understanding the "other" side of this event.

It bears repeating just how rare having an actual trial is where the verdict is decided by 12 normal people, because the default adjudication in the criminal justice system is "plead guilty now or we'll resolutely fuck you". It's an inherently coercive system and one in which I'll never wash off the stain of my involvement in it.

Given the intense scrutiny this trial has received and given the egregious prosecutorial misconduct on display, is there any risk for the prosecutors who embarrassed themselves on live television?

Nope. Prosecutors also have absolute immunity for misconduct, just like judges do. There was a prosecutor who made up charges in order to lock up an alibi witness and there is literally nothing you can do about it. You'd think that maybe state bars might be more sanguine about holding this class accountable but LOL, nope. Even in instances where a court has explicitly ruled a prosecutor committed misconduct, less than 1% of those cases result in any discipline. Keep in mind that the vast majority of judges are former prosecutors, so it's already remarkable as is for them to ever pipe up on this issue.

Civil libertarians have been raising hell on this topic for decades now, but there's little interest and little action. I personally would hope that the clown show the prosecutor put up in the Rittenhouse trial would get more red tribers to wake up and appreciate this problem, but it has long already solidified into culture war alignment. The same thing is happening with the January 6th defendants, the issue is presented as a culture war attack rather than an issue that has long affected thousands of others before and will continue to do so. I have no hope of a resolution. Anytime these issues come to light, the loudest voices on both sides immediately frame it as another front in the culture war, rather than something endemic of the institution. As much as I generally appreciate BLM's platform on this topic, their myopic fixation on race almost to the exclusion of everything else will remain a liability.

In my ideal world, the default adjudication should be a jury trial. Plea bargaining was created and has been sustained almost entirely on an efficiency argument. The system simply does not have the bandwidth to accommodate every defendant with a trial. The reason this has been sustained is that prosecutors have extremely wide discretion in terms of who and what to charge, and that's enabled by an expansive criminal code that literally nobody knows its actual bounds. I'm serious on this, the Department of Justice years ago tried to count how many crimes there were in the federal code and eventually just gave up.

So the first step is to just have fewer laws. That would necessarily reduce the immense power that prosecutors wield. The next step would be to legislate away the concept of absolute immunity, and have real consequences for prosecutorial misconduct. No idea how that would actually happen, but if it did it would also have material consequences on this issue. The other thing is to recognize that "plead guilty and you'll go home" is obviously coercive, regardless of the fiction the courts put on this issue. I've had maybe dozens and dozens of clients agree to plead guilty because the offer was credit for time served, because waiting in jail for a trial for a possible acquittal is just not worth it. In all my years involved in this, I still don't understand why prosecutors are so thirsty to get a conviction point. If someone is too dangerous to release now, how exactly do they become safe after they lie about their guilt in court?