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Kyle’s Law: How To Stop Abusive Politically-Motivated Prosecutions In Self-Defense Cases

Kyle’s Law: How To Stop Abusive Politically-Motivated Prosecutions In Self-Defense Cases

It’s time to compel prosecutors to have skin in the game, to have something to lose if they bring a laughably weak, yet horribly destructive, felony prosecution in a clear case of self-defense, like happened to Kyle Rittenhouse.

We’ve seen this happen in the George Zimmerman trial in Florida a decade ago, in the Kyle Rittenhouse trial just completed in Kenosha WI, and in plenty of cases in between.

These are cases where there is little or no evidence inconsistent with self-defense, such that there can be no good-faith reason for a prosecutor to drag that defender to trial.  The only motivation of the prosecutor is personal aggrandizement and political capital.

The real problem here is that these trials are a win-win for these rogue, politically motivated prosecutors.  If the trial ends in a conviction, they won the legal case.

Even if the trial ends in an acquittal, however, as the George Zimmerman and Kyle Rittenhouse trials did, the prosecutor still wins, in the form of political capital and esteem from their own social and political community.  They at least “fought the good fight” as their team sees it.

With a win either way there exists zero disincentives for prosecutors to bring felony charges even in self-defense cases where the evidence and law overwhelmingly favor the defendant and an actual conviction is all but impossible.

The consequences for the clearly innocent defender, however, are catastrophic no matter how strong his case of self-defense. For the lawful defender who finds himself the target of a rogue, politically motivated prosecutor, it’s a lose-lose.

Sure, the defender with the evidence and law on his side will probably win an acquittal–but at what cost?  Especially with the mainstream media having demonized the defender for a year or more prior to the trial–as a murderer, a racist, a white supremacist.

An acquittal after the trial does not make up for the loss of job, marriage, home, business, reputation, educational opportunities, and emotional stability. Indeed, many such acquitted defenders find it largely impossible to ever live a normal life again.

It’s time to change this equation.  It’s time to compel prosecutors to have skin in the game, to have something to lose if they bring a laughably weak, yet horribly destructive, felony prosecution in a case of self-defense.  And it’s time to provide a path for the wrongfully prosecuted defender to get compensation for his monetary, reputational, and emotional damages.

Kyle’s Law is my proposal to accomplish exactly that.   This statutory proposal targets laughably weak prosecutions of self-defense cases, prosecutions so weak they can only be politically motivated, and without any real prospect of conviction.

What do I mean by “laughably weak” in a more objective sense?  Well, at trial a prosecutor knows he will bear the burden to disprove self-defense beyond any reasonable doubt.  Let’s imagine that means he must disprove self-defense by 90% of the evidence.  If the defendant is acquitted, that means the prosecutor fell short of that 90% threshold.

If they fall short of that threshold by a small amount, say 75%, that still looks like a reasonable self-defense prosecution to my lawyer’s eye.  Fair enough.

But what if the prosecutor at trial can’t even disprove self-defense by a mere 50%?  Not even by that mere majority of the evidence?  That’s not a little bit short of beyond a reasonable doubt, that’s enormously short.  To my eye that looks like a self-defense prosecution brought in the full knowledge that it lacks anything close to the legal merit needed for a conviction–in other words, like a prosecution brought for political purposes despite its obvious lack of legal merit.

What I propose is that in every self-defense case the jury instruction on self-defense includes a special question to the jury–if you the jury are acquitting this defendant on the grounds of self-defense, do you also find that the prosecution failed to disprove self-defense by a majority of the evidence?

If the jury agrees the prosecution failed to meet even this very low threshold, the defendant is immediately entitled to compensation for any losses resulting from this unfounded prosecution.

And that compensation shall be made both by the state generally and by the prosecutor personally.

First, the state generally:  A self-defense defendant who qualifies under Kyle’s Law would be entitled to monetary compensation from the state for legal expenses, lost wages, and all other economic costs associated with the unjust prosecution. (Washington state already has a statute that does precisely this, §9A.16.110, but it is the only state that does. This needs to expand to every state.)

Second, the prosecutor personally: A self-defense defendant who qualifies under Kyle’s Law would be entitled to monetary compensation from the prosecutor personally for mental distress, emotional pain & suffering, lost economic/ business/educational opportunities, reputational damage, and so forth, plus any legal costs incurred to secure this compensation—and that means the suffering of both the defendant himself AND his immediate family. (No state currently has such a provision of law.)

Further, if the State seeks to reimburse the prosecutor for this damage award, that reimbursement also becomes the property of the self-defense defendant.

Only by holding the state generally and the prosecutor personally both responsible for such cases of unjust prosecution of self-defense cases can we keep these victims of violent attack from also becoming victims of an assaultive justice system.

At present, we are simply trying to raise awareness and build a community around this Kyle’s Law project—we are not seeking any funds or financing in any form from anyone, at least not yet.

If you’d like to join the still informal Kyle’s Law community, without any cost or obligation at all, and simply for the purposes of being kept informed of our progress as we develop this legislative concept, I encourage you to visit lawofselfdefense.com/kyleslaw.

Thanks for your consideration of our Kyle’s Law concept, and I look forward to having you join our modest, but rapidly growing, community focused on the legal defense of self-defense itself.

UPDATE: I’ve learned that Nathan Dahm, a Republican Oklahoma state senator has proposed a “Kyle’s Law” bill, making his announcement a few days after I initially posted my own proposal on November 19, 2021.  Senator Dahm hadn’t reached out to me, and I have no idea whether he came up with his own notion of “Kyle’s Law” independently, or had come across my suggestion and thought it worth running with.  It also appears that whatever he plans to introduce is not yet sufficiently formalized as to be available from the Oklahoma legislative website, but whenever I can obtain a copy of that bill I’ll share it with the greater Law of Self Defense community, as well as my thoughts on it.

UPDATE:  Apparently at least one Democrat politician is in a bit of a twist about “Kyle’s Law,” as I first noted on November 25, 2021:

Kyle’s Law: Democrat Horrified Prosecutors Might Be Held Accountable

Well, this elicited a chuckle when it came across my news feed.  Apparently, the Left is already panicking about my proposed Kyle’s Law, even though “proposed” is a bit extravagant for a single-page notion hosted on the website of a small-town lawyer in Colorado.

You can learn more about and join the rapidly expanding Kyle’s Law community, right here:  Kyle’s Law: Stop Politically-Motivated Prosecutions of Self-Defense.

It seems a New Hampshire state representative is in a bit of a twist over my Kyle’s Law proposal.  Katherine Rogers of Concord represents Merrimack District 28 in the NH House of Representatives—and, yes, she’s a Democrat.

Although she doesn’t credit the Kyle’s Law she’s criticizing to me, the details she discusses are, to my knowledge, found only in my proposal (at least, I’ve seen no other prior to mine).

You can click here to find the full-text of her editorial published in a local New Hampshire newspaper—My Turn: Kyle’s Law is wrong for New Hampshire—I’ll just hit the high points myself here.

Representative Rogers writes:

[S]ome in New Hampshire are pushing to pass “Kyle’s Law.” This wolf in sheep’s clothing is being offered as a way to “prevent politically motivated prosecutions of defendants claiming self-defense in gun-related incidents.”

Good heavens, no!  A wolf in sheep’s clothing!  Good thing I have a gun!

If this proposal were to become law in New Hampshire, it would effectively ensure that anyone claiming self-defense will have a protective barrier around them against anyone questioning whether, in fact, the claim is valid.

Kyle’s Law would not prevent anybody from questioning anyone about any use-of-force event. Indeed, I would encourage prosecutors to investigate any use-of-force event involving deadly force of any type.

All Kyle’s Law says is that before a prosecutor drags a person with an arguable claim of self-defense into a trial where they’ll be required to disprove self-defense beyond any reasonable doubt, they ought first be confident that they can at least show disproof of self-defense by at least a preponderance of the evidence.

Any prosecutor not confident that he has 51% proof in hand has no business dragging someone into a costly and dangerous trial where the standard for guilt is more like 90%. That’s rather the whole point.

“Kyle’s Law” would require the jury instruction on self-defense include a special question to the jury: “If you the jury are acquitting this defendant on the grounds of self-defense, do you also find that the prosecution failed to disprove self-defense by a majority of the evidence?”

She finally got something right!

If the jury answers this in the positive, the defendant is entitled to compensation not only from the state but also from the prosecutor personally. Additionally, the charging police officer will be held accountable as well.

Honest charging officers have nothing to worry about.  The ones lying on criminal complaints that unjustly drag innocent people to trials that can easily cost $100,000s and carry at least a 10% chance of conviction no matter how innocent they may actually be?  Well, yeah—but shouldn’t charging officers who swear false complaints with such outcomes be made to feel worried?

This is wrong for New Hampshire and throws the idea of law and order on its head. Here are reasons why “Kyle’s Law” should be rejected.

OK, great, let’s hear this genius’ opposing argument!

One — What qualifies any jury to make a judgment on the performance of the prosecutor and whether it is a politically motivated case? How does this get decided?

Apparently Karen—sorry, Katherine!—is struggling cognitively with these pretty simple concepts. As she already noted, the special jury form proposed doesn’t ask the jury to determine whether a prosecution was “politically motivated.”

It merely asks whether a prosecutor who has been telling a court through an entire trial that he can reasonably expect to prove the self-defense defendant guilty beyond a reasonable doubt failed to even show proof by a mere preponderance of the evidence.

As to who decides whether one side in a trial has met a burden of proof by a preponderance of the evidence—that’s the job of the jury in every civil case in America, an assessment that civil juries are expected to carry out, and do carry out, many thousands of times a day all across America.

She continues:

A prosecutor is acting in good faith, within the scope of the authority they possess, based on evidence, case law and precedence.

As Judge Bruce Schroeder shouted at Prosecutor T. Claire Binger in the Kyle Rittenhouse trial:  “I DON’T BELIEVE YOU!”  If people really believed that prosecutors were acting in good faith, we wouldn’t see this tremendous energy and support behind Kyle’s Law.

Further, no prosecutor actually acting in good faith would ever be subject to Kyle’s Law—all they have to do is not drag a self-defense defendant into a destructive and dangerous trial unless they start that trial confident that they have at least 51% proof against self-defense.

That’s what we used to call in the old days, “probable cause,” and is what’s required for a mere arrest. Surely the standard for a full-blown trial should be no less.

Adding personal liability to their performance would mean prosecutors won’t proceed in any case against a person who could claim self-defense.

No, Katherine—it means they can proceed against every person claiming self-defense, where the prosecutor has probable cause to begin that trial. If probable cause can be demonstrated, Kyle’s Law is off the table, nothing to fear there. Any prosecutor afraid of Kyle’s Law is afraid only because they are bringing self-defense defendants to trial in the absence of probable cause.

And, yes, those prosecutors should be held accountable—exactly as Kyle’s Law proposes.

This litmus test would be unlike anything else in our criminal justice system and open a wide door for abuse.

Actually, probable cause is a standard threshold in the criminal justice system  Indeed, it’s what’s required even for a mere arrest. Shouldn’t the threshold for compelling a self-defense defendant into a multi-hundred-thousand-dollar trial and the risk of life imprisonment be at least as high as the threshold for a mere arrest?

And the “wide door for abuse” is the privilege currently exercised by politically-motivated prosecutors to expose self-defense defendants to the costs and risks of a trial in the absence of probable cause.

Two — This would only expand the use of the self-defense defense to include almost every case in which someone feels threatened. Self-defense claims will skyrocket as defendants see the legal loophole for getting away with criminal activity.

Amazing.  Katherine wants people to not be able to claim self-defense too much.  Just white people, Katherine?  Or does she want the ability of black victims of criminal predation to have less privilege to defend themselves, too? What about women targeted by rapists, don’t want them to claim self-defense after they win that fight just because they “felt threatened,” do we?

One wonders exactly who Katherine thinks is supposed to feel comfortable claiming self-defense, if not people who used force defensively while they were being threatened.

Three — This effectively legalizes vigilante justice. Law enforcement is not a private right. Our state must offer public safety in the form of state or local police forces.

Well, if Katherine is equating “self-defense” with “vigilantism,” and she wants to do away with “vigilantism,” that means she wants to do away with “self-defense.”

In case you had any doubt about what Democrats would like to do to the legal defense of self-defense.

After all, who needs self-defense when we have the state and local police forces to protect us, right?  Like the state and local police forces protected George Zimmerman from Trayvon Martin’s attack?  Or Kyle Rittenhouse from the attack of a serial child rapist? Or the entire city of Kenosha from a looting, rioting, burning horde?

Or like the state and local police forces protected the 1,300,000 Americans who were victims of violent crime in the United States last year? Oh, wait, those 1,300,000 Americans were actual crime victims, so the state and local police forces apparently are unable to actually prevent violent crime! Who knew! Guess those people should not have a privilege to defend themselves, then, eh Katherine?

While every citizen has the right to self-defense, we do not have the right to put ourselves in positions of danger every chance we get and to invite others to attack us for no reason.

This, of course, is mere emoting.  Nobody actually puts themselves in positions of danger “every chance they get,” and anybody inviting (provoking) an attack is a defendant a prosecutor will have no difficulty convicting on the legal merits.

Four — Combined with “stand your ground” and “concealed carry” laws, “Kyle’s Law” will only add to the idea that we are less a civilized government than a self-policing, ‘shoot em up’ tribal anarchy that lives day to day by the rule of survival of the fittest. We make our society far less safe this way.

I would suggest that the dangers of anarchy aren’t going to be the eventual consequence of Kyle’s Law, but rather that Kyle’s Law is a response to the unjust treatment of lawful defenders compelled to deal with the actual anarchy already being visited upon otherwise safe communities by the political left and their policies.

Isn’t it time to pass reasonable gun violence prevention statutes and stop coming up with dangerous alternatives like “Kyle’s Law?”

Someone should let Katherine know that guns don’t self-animate and commit acts of violence—bad people do that. The bad people that attack the self-defense defenders, too often followed by bad prosecutors who then attack a second time with unjust prosecutions in which the trial process itself is used as a tool of punishment despite the apparent innocence of the defendant.

That’s why Kyle’s Law is so necessary.

Life is not a video game. You only get one life. Our laws should reflect that reality.

Indeed, and that one life should be neither stolen by a criminal predator nor destroyed by an unjust prosecution.

So I guess that finally, Katherine and I can agree on something—I look forward to her future support of Kyle’s Law in New Hampshire, the Live Free or Die state!

Remember, you can learn more about Kyle’s Law and join the rapidly expanding Kyle’s Law community, right here:  Kyle’s Law: Stop Politically-Motivated Prosecutions of Self-Defense.

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

 

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Comments

It’s a moot point. The Franz von Papen Republicans will fight for it they way they fought for the repeal of Obamacare: not at all.

    You mean you get a partial win on the only thing any Republic politician say they didn’t like (The Medical Device Tax and Individual Mandate repealed) and leave something they understood would mean extermination of the Republican Party for repealing in law (subsidies for poor people)?

    Could you explain why you are waving the bloody prospect of subsidies for poor people so they could get medical insurance in the face of an article trying to advocate for Kyle’s Law? The two subjects are not linked and I would very gladly debate your idea that we should continue sacrificing future presidential elections on the altar of a 2011 slogan.

    How many Republican State house members reading this article will find Branco more compelling because you insulted them while suggesting they commit political suicide by fighting to increase the price of health insurance?

At it’s core, if a prosecutor LIES on an indictment or to the press in order to get an indictment, then they should receive the exact penalty they are seeking against the defendant.

    sperber in reply to Olinser. | November 28, 2021 at 8:29 pm

    I came here to say the same thing. Reimbursement seems inadequate given Rittenhouse could have been falsely imprisoned for life if this political charade had proven “successful”, and all Rittenhouse gets in return is his money back?

… we do not have the right to put ourselves in positions of danger every chance we get and to invite others to attack us for no reason.

Hmmm ….
Where did I hear that before?
Rings a bell …

Oh, yeah.

Hear that ladies?
Can’t “put ouryourselves in positions of danger” or “invite others to attack”.
Four inches below the knee!

    pwaldoch in reply to Exiliado. | November 29, 2021 at 8:19 am

    It’s high time that ALL politicians & bureaucrata have some real “skin in the game” in general for anything that they do using the color of the government as protection.

    Milhouse in reply to lhw. | November 28, 2021 at 9:35 pm

    Nope. Nothing they’re saying is actionable. Calling someone a racist or a white supremacist is mere abuse and protected opinion, and not a false statement of fact. Ditto calling someone a murderer, unless it gives the impression that the speaker is in possession of facts not generally known, and bases his opinion on those.

      healthguyfsu in reply to Milhouse. | November 29, 2021 at 12:35 am

      I suppose you’ve never heard of defamation then?

        Milhouse in reply to healthguyfsu. | November 29, 2021 at 4:45 pm

        WTF?! Of course I’ve heard of defamation, and I know a hell of a lot more about it than you do. And I’m telling you that calling someone a racist is not defamation. That is a fact.

      Danny in reply to Milhouse. | November 29, 2021 at 8:56 am

      We have to be a fact based society. Using your major platform to say white supremacist is not protected it is slander.

      White Supremacist has a very real meaning.

      AnAdultInDiapers in reply to Milhouse. | November 29, 2021 at 1:01 pm

      There’s a difference between “I think Rittenhouse is a white supremacist”, in which the speaker is demonstrating their own ignorance and stupidity, and “Rittenhouse is a white supremacist so you must expel him” which is defamation and explicitly intends malice.

      Milhouse in reply to Milhouse. | November 29, 2021 at 4:47 pm

      No, Danny and “Adult”, you are wrong. Saying someone is a white supremacist is not actionable. It’s an opinion, not an assertion of fact. That is the law, whether you like it or not. Downvoting it won’t change that. Try going into any court with such a suit and it will be dismissed on the spot.

      Milhouse in reply to Milhouse. | November 29, 2021 at 5:43 pm

      For those who think calling someone a white supremacist is actionable, here’s why you’re wrong.

        AnAdultInDiapers in reply to Milhouse. | November 30, 2021 at 6:08 am

        I disagree, and your source disregards my point concerning trying to actually cause harm by making a false accusation.

          You seriously think you know better about first amendment law that Eugene Volokh?!

          He doesn’t disregard your point; he says your point is wrong, and unlike you he knows what he’s talking about.

It looks like my posted question got dropped… a first for LI.

It was: What happens when the irresistible force of Kyle’s Law meets the immovable shield of prosecutorial immunity?

Also, we all realie that this is not going to be a federal law — it will have to be a state law, independently passed 50 times.

    Milhouse in reply to henrybowman. | November 28, 2021 at 9:24 pm

    This law would explicitly repeal prosecutorial immunity.

    henrybowman in reply to henrybowman. | November 28, 2021 at 9:36 pm

    OK, it didn’t get dropped — it was still hanging fire on a buried browser screen. 🙈

    I’m not that worried about this Karen conflating self-defense with vigilantism. That’s just Ploy #41 in the list of Standard Gun-Banner Talking Points. We have a well-tested standard Anti-Ploy #41.

Interested Party | November 28, 2021 at 9:23 pm

They will probably be looking to bring in their own law for this situation.

They can call it the “She was asking for it” law.

Katherine’s argument seems to be that Democrat supporters can’t stop themselves from victimising others so those others must have their rights repealed so the Democrats don’t get put in a position where they may commit crimes. This is basically the idea behind forcing women to cover up.

Why only self-defense cases? This should be the law for all criminal cases. The jury should be asked to decide both whether the defendant’s guilt has been proved beyond reasonable doubt, and also, if not, whether it’s at least been proved on the balance of probabilities. In other words: “Are you reasonably sure the defendant is guilty? If not, do you at least think he’s probably guilty? A finding of “Probably guilty, but not beyond reasonable doubt” should lead to a civil liability finding against the defendant; a finding of “Probably innocent” should lead to sanctions against the DA/USA.

    henrybowman in reply to Milhouse. | November 28, 2021 at 9:30 pm

    So then, the difference between “not clearly guilty” and “clearly not guilty.”

    The Pedant-General in reply to Milhouse. | November 29, 2021 at 9:54 am

    Reading this brought me up short: there could be an intended consequence here. If you are acquitted but are not in the Kyle’s law territory, you’re opening up a can of worms “the jury knew he did it, but they can’t quite prove it” – we could be storing up a horror.

    This could be akin to the Scots “Not Proven” verdict – in essence, the scumbag did it, but he had a good lawyer/he got off on a technicality.

    How about 25% probabilty – like the prosecutor basically had no case at all?

What’s Nifong doing these days?

Duke Lacrosse is a reminder that the prosecutorial horror is not limited to self defense. As Jordan Peterson will remind you- it’s gone way past false rape and is now in the territory of pronouns (Canada).

I love the idea of repercussions, but this is like saying we’ll hold prosecutors accountable on Tuesdays.

There’s a reason Soros went after these positions along with the AG seats.

    20keto20 in reply to Andy. | November 29, 2021 at 3:42 am

    As I read Branca’s article, I had a vivid picture of Mike Nifong. Ironically, the 3 Duke LAX players charged joined the Innocence Project after they were declared innocent of Nifong’s witch hunt to advance his political career. I actually thought that a law such as the one suggested by the excellent attorney Branca was needed at the time the facts came out in the Duke LAX case. Sadly, that case involved more than a rogue prosecutor, it also involved one of the early DEI cases by an allegedly “reputable” institution of higher learning. Like with the Rittenhouse case, those 3 were tried and convicted in the corrupt media, denied any ability to defend themselves and became the media’s poster boys for “white privilege”. The facts proved differently but the media was never interested in the facts, only the narrative.
    The biggest problem that I see with the legislation proposal is that the media still hides behind “freedom” of the press. Like a rogue prosecutor, they too should be held to account for prejudicing the case with countless stories filled with outright lies. To this day, many believe that the three males shot by Kyle were black because that was the way our media slanted the stories. They are no longer interested in printing the truth, only the desired narrative. The media needs more skin in the game. They learned nothing from Nick Sandman and the other Covington Catholic kids. Nothing. They likely will learn nothing from Kyle Rittenhouse. The media is still on their own high for what they were allowed to do to President Trump. Right or wrong is not an issue for our media. To correct Ilhan Oman, It isn’t all about the Benjamins, it IS all about the narrative!

      Danny in reply to 20keto20. | November 29, 2021 at 8:58 am

      New York State has a law that you have less protection for calling someone who isn’t a communist a communist than any other form of speech.

      The justification was the extreme penalties in American society for being a known communist.

      Milhouse in reply to 20keto20. | November 29, 2021 at 4:53 pm

      That so-called “law” is unconstitutional, and therefore not a law. Don’t try using it in court.

Vigilantism?

smalltownoklahoman | November 28, 2021 at 9:56 pm

Yes something needs to be done and hopefully before someone else gets treated like Kyle did. I view this as a step in the right direction, a way to make prosecutors think twice before putting someone on trial if they don’t have a good case. If trying to put somebody behind bars when they don’t have a shred of evidence became a career killer instead of a means of garnering national attention to advance oneself, well fewer guys like Binger in the judicial system might be a good thing! At the very least it will make those that remain a lot more cautious, which is good when it come to protecting our rights.

One problem I see with this would be what happens when some exonerating evidence comes in mid-trial?

The prosecution could decide to dismiss the case if they are afraid it now falls below their required preponderance of the evidence, but then what? Does the defendant still get damages?

Another issue I see would be something like the OJ case. He was guilty as hell, but does anybody think that jury wouldn’t have claimed OJ was not even proven guilty by the preponderance of the evidence?

I like the basic premise of Kyle’s law, but I just don’t think it could work in the proposed format. Perhaps if the jury AND the judge agree. That might work.

    henrybowman in reply to fogflyer. | November 28, 2021 at 10:08 pm

    The whole question of damages if the prosecution dismisses for any reason is subject to gaming. The prosecution could run the clock all the way up to jury instructions and then dismiss. No jury, no damages.

    I wouldn’t ever logically AND the judge with the jury. Judges who are pals with the prosecutors can save them any penalties whatsoever.

      daniel_ream in reply to henrybowman. | November 29, 2021 at 10:38 am

      The first thing that occurred to me is the left shoving this back in our faces by refusing to prosecute any violent crimes on the grounds that they just can’t assure that their case meets the Kyle’s Law standard.

      As Mark Steyn keeps saying, politics is downstream from culture. You can’t fix a problem with bad faith prosecution by passing more laws. Much of Bearinger’s ghastly behaviour was already outright illegal, or at least by precedent should have led to dismissal with prejudice and severe sanctions against the DA’s office.

      Passing more laws when we’re not willing to insist the ones we already have be enforced is just empty virtue signaling. What we need is a Pinochet or a Beast Rabban.

    People really must stop using the OJ case as an example of how a jury was bamboozled. OJ walked because the prosecution was incompetent and mostly because the defense proved conclusively that the LAPD planted evidence (the bloody sock). The jury had little choice.

    The OJ case wasn’t a case of abusive prosecution. There certainly was a preponderance of incriminating evidence. No, it was a couple of corrupt police detectives and unbelievably inept and star-struck prosecution spending more time writing their books than working on the case.

      The bloody sock was found in OJ’s bedroom, and I can’t recall a theory of the police breaking into his house and planting it there. If you mean the bloody glove, it wasn’t proven conclusively that it was planted. Just that it was found by a guy who used the n-word more than people would like.

        Milhouse in reply to hrhdhd. | November 29, 2021 at 4:56 pm

        Exactly. The whole defense consisted of “Furhman uses bad words, therefore his sworn word can’t be believed, and any evidence he found against a black suspect must be planted.”

Why stop at self defense? Why not stop at politically motivated prosecutions throughout the criminal code?

What about the stooge in the black robe? Has the cowardly judge no right or ethical obligation or power to immediately throw out a case that is completely baseless on its face?

    smalltownoklahoman in reply to E_Wyggyn. | November 29, 2021 at 9:19 am

    Another reason why something like Kyle’s Law and other reforms are needed. The left is not going to stop persecuting people like Kyle just because they lost a court case. Kyle’s suffering from this case is by no means over and the ability to move on with his life and make something of it severely hampered. All over a case that should never have been brought in the first place! If something like what Andrew has proposed had existed before the prosecution, odds are within a few months of the first DA refusing to take this case many people today would be going “Kyle who?” because the media (big part of the leftist persecution) wouldn’t have had something to so sensationalize and help ruin a young man’s life.

Prosecutorial immunity is a concept that we have to revisit because as it exists now in most states it is a blank check to abuse your office.

Other people have mentioned that Kyle’s Law doesn’t go far enough but I think New York State has a law that shows us ultimately how to deal with these situations.

If you call someone a communist in NY you have less protection than any other insult.

Racist today is what communist was when that law passed.

    Andy in reply to Danny. | November 29, 2021 at 11:25 am

    Cops have been stripped of it. Prosecutors need to be stripped of it also. Both for cases they prosecute and those they don’t…this would give victims in hell holes like Seattle and Portland a way to get justice even when the broader culture is running itself off a cliff.

      Milhouse in reply to Andy. | November 29, 2021 at 4:58 pm

      Cops only have qualified immunity. Prosecutors have absolute immunity. But both are merely creations of the courts, and a legislature can abolish them. So this proposed law would override prosecutorial immunity.

        Desdenova in reply to Milhouse. | November 29, 2021 at 6:02 pm

        Not for malicious prosecutions where the cause lacked and the Defendant is acquitted. The common law already provides this cause.

    Milhouse in reply to Danny. | November 29, 2021 at 4:58 pm

    But that law is invalid. So would be any law patterned after it.

It starts with holding prosecutors to their ethical obligations, as defined in the Model Rules of Professional Conduct. Prosecutors are not supposed to charge citizens where the facts and evidence plainly don’t support the charges, but, as the Zimmerman and Rittenhouse show trials (and, other, less-publicized instances) make abundantly clear, Leftist politics now intrude to bring their corrosive and corrupting influence to bear upon the legal process. Start by demanding state Bar disciplinary proceedings against prosecutors who abuse their office, their power and the public trust, by bringing transparently politically-motivated charges for the purpose of sating Leftist mob bloodlust, and, advancing their own political ambitions.

The state, yes. The prosecutor, no. The proposal evades “due process” requirements, ironically the “due process” afforded a defendant even in a politically-motivated trial. Leave it to the state to judge the prosecutor with an internal investigation and disciplinary actions, including termination and disbarment.

Also, the instructions concerning the 50% rule should only be given after a verdict is rendered, so as not to influence the verdict.

    Milhouse in reply to DaveGinOly. | November 29, 2021 at 5:01 pm

    The prosecutor is the state. The state is not going to go after him,

    Unless you mean literally the state as opposed to the county. But in that case the state will only go after a county prosecutor if the state government is in the hands of the opposite party from the prosecutor’s.

I have a similar proposal to fix our lying news media. Professional news people should be required to follow professional standards for reporting news stories. If their reports are wrong and they haven’t followed professional practices they are guilty of libel and can be sued successfully.

    Milhouse in reply to ConradCA. | November 29, 2021 at 5:03 pm

    That runs into first amendment problems. It’s not completely impossible; certainly the Supreme Court could decide NYT v Sullivan went too far, and cut it back. But “professional news people” shouldn’t be held to different standards from anyone else, just as they shouldn’t have privileges that nobody else has.

    Corky M in reply to ConradCA. | November 29, 2021 at 6:04 pm

    Require them to obtain errors and omission insurance – this will bring them to the professional realm and make sure they have skin in every game and every word they publish.

    Create some standards of conduct, and if abused from either malice or ineptitude, the individual would pay. If you do the correct things, no problem. Wander outside the standards of conduct, you pay personally. Do this enough and no one will insure you and you will likely loose your meal ticket.

Isn’t there already a COMMON LAW cause of action for malicious prosecution?

How does this do anything but duplicate this COA in statutory law?

I like the idea in theory, but the devil is in the details. What about prosecution evidence that gets tossed out? Does the jury get to see that? Maybe they deliver the prosecutor verdict after the defendant verdict, so they can see everything the prosecutor saw when he decided to prosecute.

I initially liked this idea, but two issues occurred to me:
1.. Maybe only the prosecutor should be liable for the costs. If the State pays, actually we (the taxpayers) pay.
2. It might be confusing to jurors to have to decide a second issue besides guilty or not guilty,

I think a strong case can be made for “loser pays” in general, at least where the case brought is exceptionally weak.

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