Corey Lewandowski is no longer facing charges. The state attorney’s office has announced that they will not prosecute Donald Trump’s campaign manager for misdemeanor battery. .
For the most part, the prosecutor’s office got it right. The only exception would be one line from Palm Beach County State Attorney David Aronberg’s assertion during the press conference:
“As far as our review of the case, it was just like any other case… as far as the actual work that was done, the review, the analysis, it was the same as any other case.”
OK, let’s not get carried away here. No one thinks it was like any other misdemeanor case. Perhaps no other misdemeanor battery charge in the history of the State of Florida has been investigated like State v. Lewandowski.
Prosecutors always say that all crimes and victims are treated equally, but they are obligated to say that. They don’t actually mean it. The court system would collapse if prosecutors investigated every misdemeanor case like it was the OJ trial. It’s too bad, because while the court system would be overloaded, the justice system would benefit from that same care and attention.
It may seem procedurally strange that the police charged Lewandowski, then the prosecutors declined to do so, but that’s the way the system is supposed to work in misdemeanor battery cases in Florida.
A notice to appear, like the one issued to Lewandowski, really only acts as a recommendation by law enforcement to the county prosecutor. From there, the state attorney’s office has complete discretion to decide what to do with the case. They can prosecute, or not prosecute.
Complainants often tell a prosecutor that they have changed their mind and no longer wish to press charges against their alleged assailant. Complainants then learn that this is no longer their case — it’s the state’s and the state’s alone.
Prosecutors routinely proceed to trial with cases that the complainant no longer wishes to prosecute — in some domestic violence situations, local law requires it. As we’ve seen here, sometimes they also choose not to go to trial in cases where the complainant does wish to prosecute.
When a complaint like this is received by the state attorney, the office conducts its own investigation. At the completion of this investigation, the state attorney can then choose to drop the case — in spite of the wishes of a complainant or a recommendation by law enforcement.
State attorney investigation
According to State Attorney David Aronberg, the police acted within their authority, and he agrees that there was probable cause to charge Lewandowski. “Wait,” you may say. “Iif there’s probable cause, then why not charge him?”
Aronberg correctly pointed out that prosecutors have a greater obligation than just determining probable cause. Prosecutors must have a good-faith basis that there is sufficient evidence to prove guilt beyond a reasonable doubt.
To Aronberg, because there was a reasonable hypothesis of innocence, there was not a reasonable likelihood of a conviction. Accordingly, it would have been unethical to file a case without a good-faith basis.
Criminal defense attorneys and public defenders who heard this speech may have been simultaneously inspired and incensed. To the idealistic, the way Aronberg put it is the way it’s supposed to be. To the jaded, that’s not the way it is. When you think about it, preliminary hearings in criminal cases are just pretrial determinations of probable cause. If “PC” is determined by a judge, the case is held over for trial.
In the typical criminal case, once there is a finding of probable cause by a judge or an indictment by a grand jury, that’s good enough for the prosecutor until the case goes to verdict. In fairness, maybe prosecutors are back at their office, constantly reevaluating their cases, asking whether there is a good-faith basis, and whether there is a reasonable hypothesis of innocence. Maybe the rest of us just aren’t there to see it. But Aronberg’s position statement is a good summary of the duty of any prosecutor.
Why not Lewandowski?
In Florida, the crime of misdemeanor battery occurs when a person actually and intentionally 1) touches another person against the will of the other or 2) intentionally causes bodily harm to another person.
Put another way, as applied to these facts, all the state needs to prove is 1) intentional, 2) touching and 3) the absence of consent by the victim.
Under Florida law, misdemeanor battery does not require the prosecution to prove any injury to the victim; the unconsented touching is enough. Indeed, one Florida court has observed that even a harmless tossing of ravioli at your classmate might be enough to constitute battery.
Aronberg seemed to concede as much at the press conference. Indeed, at times, his conclusions that Lewandowski grabbed Fields’s arm against her will had viewers wondering if he was suddenly changing his mind about prosecuting Lewandowski mid-press conference. But Aronberg pointed out some additional factors unique to presidential candidates.
When tasked with protecting a person, the Secret Service will create a “protective bubble” around the person. This is to prevent unauthorized persons from getting close to that person — even if they are members of the press. In addition, Aronberg noted, it is not uncommon for a candidate’s inner circle staff member to assist in clearing a pathway.
Those are good observations by Aronberg. Where did he get this information? An affidavit submitted by a former FBI agent. Who submitted that affidavit? The defense.
Ultimately, a “no-file” on this case was the correct call, for the right (apolitical) reasons. But in fairness, this really wasn’t handled like any other case in the justice system. I could be wrong.
Perhaps Florida criminal defense attorneys will tell me that prosecutors routinely invite the accused to submit affidavits and opinions about innocence, and that teams of prosecutors convene meetings and prepare memoranda submitted up the chain of command in misdemeanor battery cases. Perhaps. But I doubt it.
Still, it’s hard to criticize either side. The state attorney’s office took seriously their ethical obligation: not just to win, but to do justice. The defense’s creative decision to seek and submit this critical affidavit may have saved their client a criminal prosecution.
One does wonder — if the defense hadn’t solicited the opinion of a law enforcement expert, would the prosecution have bothered to do so? Surely the prosecutor’s office has access to people with law enforcement experience, right? No matter. The point is that justice was either achieved or closely approximated, mostly through diligence on both sides. Now if only we could get that kind of effort in every other case.
Of course, there’s another unspoken reason the prosecution might have declined charges. Though they wouldn’t have said it at a press conference, the state attorney’s office opinion of this case might have just been:”C’mon, really?” Palm Beach County had over a hundred homicides in 2015, and is already well over 20 in 2016 so far. A county prosecutor has to make decisions about where to allocate its scarce resources. Cases like these may not be worth the expenditure.
Collateral consequences
Now that the case has been dismissed, you might think “no harm, no foul” for Lewandowski. But even arrests and court records come with serious collateral consequences. “Collateral consequences” are the name given to the universe of woes that come along with an arrest or a criminal conviction, apart from the ordeal of the criminal prosecution itself. Even arrests without a conviction create a splash of electronic and paper records, with far-reaching ripples.
Police arrest records are forwarded to federal agencies, separate local, state, and federal records are generated, and sometimes remain out there in the cloud, even if you are acquitted of the crime.
This is the case in Florida, where a citizen can have a criminal history record even if the case was dropped. The Florida Legislature has determined that criminal history records are presumptively public unless the additional step is taken to have the record sealed or expunged. That criminal history record is generated upon the initiation of a case, and it includes the disposition of that arrest, whether it is a conviction, acquittal, dismissal of charges before trial, or other disposition.
So while the record will reflect the positive outcome of the case for the person initially charged (the dismissal), it’s still a record of a case! It’s something criminal defense attorneys complain about often: even an arrest without conviction creates problems for citizens. While law enforcement must proceed with caution in investigating all battery cases, the system would benefit from a vetting process that would prevent these — cases that the prosecutor isn’t going to prosecute — from ever being prosecuted to begin with.
A civil case?
Could Michelle Fields sue? Well, sure. The real question is: Is it a viable case? Probably not. Law students would point out here that a civil battery is almost identical to a criminal battery, so there is a civil case. Grizzled courtroom veterans would tell her not to waste her time. Personal injury cases are driven by injuries. Yes, there was apparent bruising, and yes, no one should ever grab another person without their consent, but those are separate, moral issues.
Without medical evidence of serious injuries, this is not a profitable civil battery case. Plus, many insurance companies will not cover intentional acts — just negligent ones. That would further diminish the value of a civil case here. This is not a strong defamation case, either. These cases require tangible damages to reputation and proof of false statements.
Defamation claims are often alleged, but rarely money makers. If they were lucrative, you’d see advertisements right up there with the personal injury lawyers on TV. They’re not, and that’s why you don’t.
And finally, that’s why, from a legal point of view, Lewandowski should not apologize. Certainly the prosecution cannot force him to. Maybe there’s a good moral reason to apologize, but there’s a better legal reason not to: apologies can be construed as admissions of liability. Plus, criminal defense attorneys will tell you: after a client beats what he believed was a bogus charge from a victim, they usually are not in an apologizin’ mood.
