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This action by https://twitter.com/Eric_Schmitt ( https://twitter.com/Eric_Schmitt/status/1285350569977274369) is a truly extraordinary act by an attorney general—at least by a Missouri AG. If there is a precedent (and I doubt that there is) it was certainly from some time before 1994. The action prompts 3 thoughts.
First, take a look at the form of—or label on—his action: filing an “Amicus Brief of Attorney General Eric Schmitt Supporting Dismissal of the Case.” Amicus briefs are unusual in trial courts, though not unheard of.
And amicus briefs by attorneys general are not unusual. I filed many of them for AGs Nixon and Koster.
But amicus briefs are usually (always, in my experience) filed in support of something that is pending. If there were a motion pending to dismiss charges, AG Schmitt’s filing would fit that model. But there is no such motion.
AG Schmitt is appearing as amicus to support the court doing something that no one has asked the court to do. Has anyone on #appellate twitter or otherwise ever heard of such an amicus brief?
The second goes to AG’s legal relationship to the prosecutor. In MO (and most other states), the AG does not supervise prosecutors. He has no authority to tell them what to do/not do. But he does have the responsibility to defend appeals from felony verdicts.
If a McCloskey is are convicted, it will fall to the AG to defend the conviction on appeal. And traditionally, MO AGs stand up for the jury verdict to the nth degree.
I know: In Roper v. Simmons, I argued in the U.S. Supreme Court in support of a MO capital sentence imposed on a murderer who acted before turning 18. AG Schmitt knows: Recently, he was roundly (perhaps unfairly) criticized for continuing to defend the verdict of Lamar Johnson.
Decisions by prior attorneys general to decline to defend an appeal, or to end opposition to a writ of habeas corpus, were agonizing. But they always came years into the process, with careful study of lengthy records--never at the outset of a prosecution.
Has there ever been an instance when a MO AG in effect announced in advance, in court, that he will not defend a jury’s verdict, if there ultimately is one? Certainly not 1994-2016, when I was in the MO AG's office.
Third, where does this precedent lead? Logically, doesn't AG Schmitt now have to look at other cases for constitutional defenses, and file amicus briefs early in those as well?
So, if a person is being prosecuted for participating in a lawful, peaceable protest, protected by the First Amendment, AG Schmitt would file a brief supporting dismissal of charges.
There are probably cases pending now—or to be filed shortly—that merit AG action under his new standard. If the press doesn’t alert him to those cases, I assume that defendants and their supporters will.
