The Fish and the Manual

Burt Likko

Pseudonymous Portlander. Pursuer of happiness. Bon vivant. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. There's a Twitter account at @burtlikko, but not used for posting on the general feed anymore. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

Related Post Roulette

17 Responses

  1. Mad Rocket Scientist says:

    So this is in front of the Supreme Court over a case of “Contempt of Investigator/Prosecutor”?Report

  2. Glyph says:

    Sounds like somebody fished up.

    Working in an industry in which S-OX is invoked frequently (and being that the Act is targeted at bookkeeping shenanigans), I am darkly amused that it can be applied to grouper.

    #1. Aren’t there already “evidence tampering” / obstruction of justice type statutes they could have used?

    #2. They are only grouper. Wouldn’t it have made sense for the investigators to take possession of at least a few of the suspect fish immediately, rather than saying “meet us back on shore and we’ll clear this up there”? Pretty sure if they boarded a boat full of bales of white powder, they wouldn’t just let the boat make its own way back to shore, with the evidence aboard, unsupervised.Report

    • Burt Likko in reply to Glyph says:

      You’ll have to ask the game warden about whether that’s the standard procedure, and whether that’s really a best practice. I only know what I read in the SCOTUS briefs and write-ups from the various SCOTUS reporters.Report

      • Glyph in reply to Burt Likko says:

        The more I think about it, the more troubled I am by the idea that law enforcement can, without a court order, force me to store/convey, at my effort/expense, the very evidence it plans to nail me with. Doesn’t that run afoul of the right not to self-incriminate, or other due process concerns, as well as evidence-chain-of-custody requirements? Could they force me to rent a storage locker with a freezer to store the fish in, while they figure it out?

        I get that they want to avoid the destruction/tampering of evidence, but seems to me that the best way to do that is for the authorities to take custody of the evidence, not leave it in my hands and tell me I need to store it or carry it with me. That just seems dumb on a number of levels.Report

      • James Hanley in reply to Burt Likko says:

        Good point, glyph. And can the game warden really establish beyond reasonable doubt that the evidence was destroyed, given that there’s no evidence? All we have is his/her word, and while I know a lot of people treat police testimony like gold, there’s too much evidence of police lying under oath for me, at least, to ever accept their word at face value.

        I guess I’m not surprised that police seek the maximum possible charge. It’s a good enforcement strategy. But that’s where my libertarianism kicks in–I don’t think government should be in the business of maximum enforcement, period. I think there’s both an inherent illegitimacy about threatening penalties wildly disproportionate to the alleged crime, and there’s a hardening that occurs when government sees its role primarily as enforcer that makes it trend toward authoritarianism–or more precisely that makes the individuals within it trend toward authoritarianism, whether by a process of shaping their mental framework or by a process of self-selection for authoritarian personalities or both.

        I had a student once whose father was a county prosecutor. I met him a couple times, and really liked him. But both of them explicitly described defense attorneys as “the enemy,” and not exactly with a smile. Given that prosecutors push the boundaries of the Constitution, while defense attorneys rely on it and are sometimes our only protection against overzealous and abusive government, and I’m more inclined to see them as heroes, and prosecutors as the enemy of the public, for all that they claim to represent “the people.”Report

      • Kolohe in reply to Burt Likko says:

        “The more I think about it, the more troubled I am by the idea that law enforcement can, without a court order, force me to store/convey, at my effort/expense, the very evidence it plans to nail me with”

        I don’t know if it’s relevant, but the Coast Guard for instance, isn’t required to follow the 4th amendment when interdicting and searching vessels in US territorial waters. It may be that Fish and Wildlife has the same loophole for ‘environmental protection’ that the Coast Guard does (as long as no one is on land)Report

      • Will H. in reply to Burt Likko says:

        To bilk little old ladies out of their life savings is generally held reprehensible; however, to do so as a prosecutor is a commendable act.Report

    • Stillwater in reply to Glyph says:


      I’m curious about #2 too. Something about it smells fishy.Report

  3. Stillwater says:

    the prosecutor should charge the ­­ the offense that’s the most severe under the law.

    Isn’t this what the law sortamaybe demands? (As in, logically entails?) I get the notion of prosecutorial discretion and all, but it seems weird for a court to challenge a prosecutor for filing charges consistent with actual law, no? I mean, it’s not his fault that that law is on the books.Report

    • Burt Likko in reply to Stillwater says:

      Well, that’s kind of the discussion that I think ought to be had.

      Would it change your opinion if I told you that (at least in law school we were taught this) a prosecutor’s client is “justice,” not the victim, not the conviction, not the plea arrangement?Report

      • Stillwater in reply to Burt Likko says:

        I’m not sure, since I don’t know what my opinion about this actually is. Right now, I’m wondering why it is that members of the court are challenging Martinez for failing to use some other barometer than *the law* when charging someone with a crime. What standard would they prefer him to use?

        On the other hand, I think it highlights something Jason K brought up not too long ago regarding the scope of laws on the books and how violations of them aren’t actively challenged anymore.

        On the third hand, it seems to me that “the proper administration of the law” (which is the definition of “justice” I found online) or even “the fair and equitable treatment of all individuals under the law” (found in same) ought to be codified atleast to such an extent that Supreme COurt Justices don’t have to resort to questioning whether a prosecutor ever exercises discretion when filing charges.Report

      • Burt Likko in reply to Burt Likko says:

        But on the fourth hand, the concept of proportionality — IOW, that the degree of the punishment should match the severity of the crime — is inherently not codifiable.

        And on the fifth hand “the law” includes, but does not consist entirely of, what Congress passes as legislation. To follow “the law” requires cognizance of more than statutes.Report

      • George Turner in reply to Burt Likko says:

        What bothered me is the difficulty of counting 70 or so undersize fish accurately. Not only can measurement screw up (the tape measure slipped), but you could easily count the same fish twice because they slide around and all look about alike to us. I would have my doubts as to whether a person could repeat the exact count twice in a row while in a hold on a boat at sea. I’d favor regarding the initial count as a tentative measure, to be confirmed ashore, instead of taking the trivial discrepancy as evidence of misdeeds of the highest order.Report

      • zic in reply to Burt Likko says:

        Hello, @george-turner , I’m very happy to see that you’re still alive and kicking.Report

  4. Jim Heffman says:

    “[I]t does sound like the Supremes are not particularly warm to the shape apparent under the blanket of the pleadings — Yates got charged with a bunch of extra crimes because he was a jerk, not because anyone actually thought he was guilty of what those laws were meant to get at.”

    But then why didn’t they hear Jones v. United States?Report