We interrupt today’s wall-to-wall coverage of the San Bernardino shootings to bring you a truly incredible story of prosecutorial corruption and hypocrisy. The rule of law is under assault from all fronts in America, and nowhere does the rubber meet the road more acutely than in the evils of prosecutorial discretion, a topic that we have covered at length here before.
Via Nashville earlier this week comes a story so breathtaking in its exposure of the corruption and hypocrisy endemic in the criminal justice system that even the staunchest defender of the status quo must concede is an indicator of something that is seriously and tremendously wrong. The story centers around newly elected Nashville DA Glenn Funk (who is, of course, a Democrat). After his election but before taking office, Funk convinced a state of Tennessee official to create a part time job for him which both enriched his pocketbook in the short term and also qualified him for a higher pension on his retirement.
Sounds so far like garden variety corrupt cronyism, but the position in question was one in which Funk was paid to prosecute defendants part time under the District Attorneys General Conference – but Funk, who was a criminal defense lawyer before his election, continued to represent criminal defendants while doing so, a clear violation of Tennessee State Law.
When this arrangement was uncovered by a local TV news station, the Tennessee Bureau of Investigation was called in to investigate, and ultimately turned their findings over to Tennessee Attorney General Herb Slatery (who, it should be noted, is a Republican). Slatery found, as was perfectly obvious to everyone, that Funk broke the law. However, he declined to prosecute Funk, and the reason for that decision is truly stunning: he determined that Funk did not know he broke the law, and thus was not deserving of prosecution:
Still, the AG said that the veteran lawyer told investigators that he did not know he was breaking the law, that he just relied on employees in the state’s DA’s Conference who made the arrangements for him.
“Those associated with the hiring of Mr. Funk by the Conference exercised poor judgment and failed to give appropriate attention to the statutory provisions governing the hiring of staff attorneys by the Conference,” Slatery’s report added.
Because Funk finally agreed to give up the more lucrative pension and pay the state back, the AG closed the case — with no prosecution.
Listen, I think all of us who had responsible parents and civics teachers have known since at least high school the basic principle that “ignorance of the law is not an excuse,” but attorneys – and in particular attorneys who have ever been on the other side of the table from a DA – should recoil in utter horror at the idea that “Sorry, I didn’t know that was illegal, let me give the money back,” would ever work to get a client off scot free.
The fact that it apparently works when the potential defendant in question is a District Attorney is especially galling. How is Funk expected to do his job with a straight face after this? He is going to face an unrelenting string of defense attorneys who are going to offer, “Sorry, my client didn’t know it was illegal, and he’s willing to pay the money back. That worked for you, right?” as a defense.
Of course, Funk is a nasty piece of work, and I rather suspect that he won’t even bat an eye at his own hypocrisy and corruption. I have no doubt that he’ll blithely deny to criminal defendants the same defense that he used to keep himself out of jail and sleep well in the process.
And that, of course, is 100% of the problem. One set of rules for the rulers, and one for the ruled. That is not how the “rule of law” is supposed to work in a free society, and the fact that it occurs so blatantly right under our noses should be cause for concern.