by Justice William W. Bedsworth
I spend a considerable amount of time second-guessing prosecutors. All ex-prosecutors do. It’s a perq of leaving prosecution: they give you a pension statement, a framed badge, and a certificate of qualification for Monday morning quarterbacking.
The first goes in a drawer, the second goes on a wall, and the third goes in your pocket so it can be retrieved and used daily.
This surprises people outside criminal law. They tend to think drawing an ex-prosecutor as a judge is a good thing for the district attorney’s office. And on a macro scale, they’re probably right: ex-prosecutors have a generally pro-law enforcement perspective and their approach to the law tends to be more vanilla than malted salted caramel English toffee ripple.
But on a micro level, it’s a huge pain in the . . . neck . . . for the prosecutor. Their judgment is challenged on everything.
Prosecutors who appear before ex-prosecutors quickly grow weary of “What?! You want to take up my courtroom for seven trial days just to add three years to this guy’s ten-year sentence?!” and “You have how many witnesses? Why, back in ’95, I won the Gazorninplat case with just his wife, his mother, the dog, and a DNA expert. Back then we knew how to try cases.”
Ex-prosecutors tend to think the office went to hell in a handbasket the day after they left. They remember the woman who has now had a brilliant twenty-year prosecutorial career as the puppy she was when they were appointed to the bench. “Mafuffnick’s in charge of major frauds? My God, I wouldn’t put her in charge of the Rotary picnic! No wonder you’re trying so many garbage cases!”
This last is the classic ex-prosecutor’s beef: “They think everything is a state prison offense. They have no judgment.”
Of course, good prosecutorial judgment is in the eye of the beholder. When I asked Al Wells, a legendary Orange County prosecutor, how you develop good judgment, his answer was, “By exercising bad judgment, Billy. That’s why God made misdemeanors.”
And that is, in fact, how most prosecutors develop: by trying misdemeanors and learning both their craft and human nature as they work their way up to felonies.
I wonder if prosecutorial judgment is developed faster or slower in Germany? German prosecutors last year had to exercise their judgment on 218,414 cases in which the charge was insult.
That’s right, insult. I’ll pause here so you can re-read the last paragraph, which right now you think you must have misread.
Read it again. Read it several times. Stare at it until your eyes water. It’s gonna say the same thing. Insult.
Seems Germany has a law against insulting people. Has since 1871. It’s called the Beleidigunggesetz. 1
Apparently those seventeen letters translate to “the law protecting people against insults.” Because German efficiency would recoil at using six rather bewildering words where one wholly incomprehensible one will do.
Now, in the words of the great legal philosopher Harry Callahan, “I know what you’re thinkin’.” You’re thinkin’ I’m twisting the words of some poor, defenseless Deutschecriminalischestatutenheimer2 so I can meet a deadline.3
Paragraph 185, Section 14 of the German Criminal Code4 says, “An insult shall be punished with imprisonment not exceeding one year or a fine and if the insult is committed by means of an assault with imprisonment not exceeding two years.”
Last year 218,414 cases of insult were brought to prosecutors for filing. These ranged from abuse of the Stinkefinger5 to what my local paper refers to as “classic” German insults: “old Nazi,” “fascist,” “pig,” or “cripple.”6
And these are serious prosecutions. It was a big deal when German prosecutors refused to file charges against Chancellor Sigmar Gabriel for giving a neo-Nazi the Stinkefinger.7
Another case, in which German President Joachim Gauck was accused of calling members of the far-right National Democratic Party a bunch of spinner8 wended its way to the German supreme court before they called off the jam, issuing a free speech opinion that essentially said, “What? You want to take up our courtroom for an entire morning arguing this?”
Apparently, enough cases are prosecuted to develop a formidable body of precedent. An employer was fined 2500 Euros for calling one of his employees, “Germany’s laziest worker.” Calling a cop a “wanker” merited 350 Euros. Here it would merit only a puzzled look.
And insults on the internet appear to be treated more seriously—doubtless because they are published to more people. A trainee who made disparaging remarks about her boss on Facebook got socked for 2500 Euros. Other social media cases have drawn judgments of 5,000 to 8,900 Euros.
I can’t imagine how German sports fans manage to discuss their teams with fines like that. When I go to a ballgame, I always seem to be surrounded by people who would be in hock a half-a-million dollars by the fifth inning.
Come to think of it, if we had this law, we’d have to stop having ballgames. We’d need to turn the stadiums over to the courts. If we prosecuted Stinkefingers and F-bombs9 we’d be using Yankee Stadium and Wrigley Field as arraignment courts.
But then again, no one has suggested we enact insult laws here. German culture is obviously much different than ours. For example . . . .
A few months ago there was a terrible shooting in Munich. You probably read about it: Nineteen-year-old opened up with a Glock outside a McDonald’s and killed nine people.
And after the shooting he stood on the roof of a parking structure and engaged in an epic shouting match with a 57-year-old backhoe operator on a nearby balcony.
So picture this: Crazy teenager’s holed up on a roof with a Glock he’s used to kill nine people and a backhoe operator unleashes what my paper calls “a seemingly never-ending stream of epithets” at him. Then throws a beer bottle at him!
I’m sorry, folks. I have a great deal of respect for people who operate heavy machinery in this country. They’re tough and resourceful. But I don’t think that happens here.
But it not only happened in Germany, it was captured on cellphone cameras, and a woman went to the authorities and asked to have the backhoe operator arrested for violating the Beleidigunggesetz. She wanted him prosecuted for his coarse and insulting language.10
Honest. I could not make that up on my best day.
In an exercise of discretion that would have pleased even the most self-important ex-prosecutor, 11 the German authorities declined. They pointed out the gunman was dead (shot himself instead of the backhoe operator), his family was not requesting redress for the insult, and the cost of protecting the complainant from an outraged public would have been prohibitive.12
All of which has convinced me not to diminish the amount of second-guessing I do, but to couch it in more temperate terms than I might previously have used. After all, if there are people on this planet who will hurl insults and beer bottles at a crazed gunman, a simple respect for the concept of self-preservation counsels civility.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at email@example.com. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.