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August 29, 2006



What do you reckon insecure lawyers have to do with a tormented 12-year-old boy hanging himself in a filthy, smelly, empty apartment? The kid didn't fail to have "tip-top" hygiene, he shit his pants at school and lived in a closet with knives and a homemade spear because he was so afraid. And then he killed himself. This makes the prosecutor unreasonable how?


The prosecutors were unreasonable for two reasons:

They should have expected this constitutional challenge if they were proceeding on a theory that a bad home caused the kid’s suicide. It was there independent obligation to explain to themselves why she would have been on notice that a bad home causes suicide. (Note, she wasn’t charged with keeping a bad home per se, but rather keeping a bad home that cause her kid’s death by bullies.)

Secondly, and more startling, is that there seem to have been a number of assaults committed against this kid. By bullies. They seemed to have escaped prosecution. Granted, they might be juveniles and evading the public eye, but there is little mention of their crimes. For some reason, prosecutors seem to turn a blind eye to assaults by juveniles upon another that might otherwise result in years rotting in jail.


Your new arguments are no more convincing than your original argument.

1. Since when do prosecutors concern themselves with overbreadth? I would love to hear about one single verified instance of this. Prosecutors put people in jail when bad things happen. Wise legislators, ConLaw profs, and judges worry about overbreadth.

2. Objection - misstates the record, irrelevant. We're not talking about the bullies, we're talking about the Mom. There's no suggestion here that the prosecutor chose to prosecute the Mom *instead of* prosecuting the asshole bullies.

I want to make it perfectly clear that I am not saying that the law in question was fair, or fairly drafted. And it might be bad social policy to prosecute mothers for this sort of thing. But you have not yet made a persuasive argument that the prosecutor here did anything other than attempt to do his or her job by punishing someone who he or she reasonably believed to have contributed to the death of a child.


It is all prosecutor’s independent duty to satisfy themselves that any conviction that results from each prosecution is constitutional. Each prosecutor that I know does this. Indeed, some (perhaps most) refrain from prosecuting people under certain statutes or theories, because for this very reason. To not do so would be unethical, immoral, and probably illegal, since the constitution binds all government officials. (The remedy for it is questionable, but Dombroski may provide some hope.) Quite frankly, it is possible to prosecute everyone in the country under some statute, but because most (yet not all) prosecutors exercise some restraint, which is usually informed by those constitutional concerns, they do not.

Contrary to your declaration, there actually is a suggestion that the prosecutor didn’t prosecute the bullies. More than a suggestion. Contemporaneous news reports indicate that there were no such prosecutions, and it does not seem as if they were called at trial. In fact, she sued the school at the US District Court. The docket number is 3:03CV2224. A free copy of a partial denial of a motion for judgment on the pleadings can be found here: http://www.dueprocessillinois.org/ScruggsDConn.pdf .

Soon after the trial, the state legislature passed a statute (referring to this case) which requiring the “reporting” of “bullies” to the authorities.
It is unknown how many years those people will serve in jail.


You are totally right! Except for the part where you completely missed the point.


If you want to explain why prosecutors are obligated to bring charges on unconstitutional theories of law, go ahead.

Are all prosecutors simply not bound by the constitution? Can they just say “I think this legal theory would result in an unconstitutional convictions, but I am going to secure a conviction, argue that it is constitutional, and then hope that they other guy screws up the constitutional argument so much?” A good faith duty isn’t much to stomach, but in this case, I think the prosecutors acted in bad faith by not assessing whether a conviction would violate due process.

If you want to explain how, despite judicial decisions evincing at least accusations of deliberate indifference to the assaults and other crimes committed against the “victim” at his high school, go ahead. Otherwise, I don’t see your point.

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