Washington v Davis in How To Get Away With Murder In How To Get Away With Murder S04E13, a character says In Washington v. Davis, your predecessors decided that even if a law has a discriminatory effect, it is unconstitutional if that was not its intended purpose. Should this instead be any of the following: 'if a law has a discriminatory effect, it is unconstitutional even if that was not its intended purpose' 'even if a law has a discriminatory effect, it is constitutional if that was not its intended purpose' ?
Washington v. Davis held that if a law or other action (in this case, a Verbal Skill Test as part of D.C. police hiring practices) is not necessarily unconstitutional if it results in discriminatory outcome. In order to be actionable against the state, one must prove that the law was intended to discriminate from the creation of the law. Your quoted source is in fact wrong and your number 2 option is the correct summation of the quote. Only laws that are purposefully discriminatory are unconstitutional.
They are not given independence from statute. This clause just says that conviction is not the end goal of the prosecutor. If in light of the evidence, the prosecutor comes to believe a person is not guilty, they are not to proceed with the prosecution. They must not hide exculpatory or mitigating evidence in order to get a conviction.
The term &quot;racism&quot; is a political one, not a legal one, which refers to a belief. It is not illegal in the US, and it is a belief that is protected under the First Amendment. There is a legal construct, &quot;discrimination on the basis of race&quot;, which enters into laws. For example, you may not discriminate in employment on the basis of race: but those law don't distinguish discrimination in favor and discrimination against. Hate crimes are crimes which additionally discriminate on the basis of some protected class (see &quot;discrimination&quot;). Assaulting a person because they are white, black, Catholic, atheist, male or female is a hate crime. Everybody falls into one or more protected categories (everybody has some race, religion including lack, and sex) – hate crime laws add &quot;because of&quot;, for those extra penalties. Assalting a white, black, male or female person is not a hate crime, by itself. The government is not the only source of reigning in of speech that you don't like, in fact, it isn't way of suppressing speech that you don't like at all, at least as long as we have the First Amendment. An employer has the right to hire a racist, or to fire a racist, at least until the law changes.
So I'm fascinated with the OJ trial and I've read a ton about it. I'll try to answer your question both accepting your premise as true, and then also going into what actually happened. First of all, jury nullification cannot be overturned in the US. The double jeopardy clause forbids it. This is such a powerful tool, in fact, that there are strict rules that prevent defense lawyers from mentioning or even hinting at jury nullification, in front of the jury, in almost all circumstances. It doesn't mean D is safe from all legal liability. OJ, obviously, was found liable in the civil trial. Sometimes other jurisdictions can prosecute. For example, after the officers in the Rodney King beating were acquitted in state court, the federal government got them for violating federal hate crime statutes. Second, looking at your premise. If jurors think D is guilty, but also being framed, that's not necessarily jury nullification. Remember, a criminal defendant must be proved guilty beyond a reasonable doubt. That means that 'probably guilty' means 'not guilty.' That said, there may be times when a jury is convinced beyond a reasonable doubt of a defendant's guilt, but is so disgusted by the police tactics used in the case that they acquit. This would be jury nullification. What actually happened in the OJ case: Mark Fuhrman perjured himself on the stand. He lied and said he'd never said the N word, and the defense produced tapes of him saying it a ton. The defense recalled him to the stand. Because perjury is a serious crime, this time he came in with his own defense lawyer, and did nothing but take the fifth on the stand. In a genius move, OJ's defense team asked him whether he planted any evidence in the OJ case. He didn't deny it, instead he took the fifth (again, as he was doing to every question). This was enough to sow reasonable doubt about OJ's guilt based on the evidence in that trial (there's obviously no actual doubt, in real life, that he's guilty). So, what actually happened wasn't jury nullification.
Can the prosecutor and/or the judge be sued for dereliction of duty, and for non-uniform application of the law? No. Judges and prosecutors have absolute immunity from civil liability for their actions in the course of their duties in connection with the court process. Prosecutors have effectively absolute discretion in their charging decisions and in their decisions to reduce the charges sought against a defendant (prior to jeopardy attaching when a jury is sworn in). Can the outcome of a bench trial be appealed on grounds that the judge did not inform the defendant of his rights Yes. or that his rights were taken away by unwarranted modification of the charges? No. Incidentally, there is no federal constitutional right to a jury trial in a case where six months or less of incarceration is sought as a penalty, and there is no federal constitutional right to counsel unless incarceration is a possible penalty. The Utah State Constitution distinguishes between criminal matters and non-criminal matters in several respects mostly found in the state's bill of Rights (Article I of the State Constitution) in Sections 8, 10, 12, 13, and 19. But, it is fundamentally the right of the state through its prosecutors to decide what charges to press against someone, and they are well within their rights to change their minds. Often, this will be in your favor because reducing an offense to a civil infraction rather than a misdemeanor will have far fewer collateral consequences related to having a criminal record.
The Brandenburg Test This is not a &quot;general test&quot; - it's the test that applies. The prosecution must prove beyond reasonable doubt that: The speech is “directed to inciting or producing imminent lawless action,” AND The speech is “likely to incite or produce such action.” The first goes to mens rea; that the person intended by their speech to incite lawless action. This is a matter of fact based on conduct before, during and after the speech act. That is, intention can be established by what the speaker said and did before they spoke, while they were speaking and after their speech concluded. The second is based on the speech act itself. Here we have no precedent as to whether the incitement must be explicit (Lady McBeth or Iago) or implicit (Marc Antony): Hence, since Brandenburg, the Court has not elaborated on whether words of incitement are a necessary condition for conviction or if, absent words of incitement, a defendant has a First Amendment defense as a matter of law. We are left only with the Court's language in Brandenburg to try to divine whether words of incitement are in fact a necessary condition for conviction. The text is ambiguous. The Court stated that the First Amendment protects a speaker unless the speaker's advocacy is &quot;directed to inciting or producing imminent lawless action and is likely to incite or produce such action.&quot; Professor Gunther's position, that Brandenburg adopts Judge Hand's view, is supported by its self-conscious use of the term &quot;inciting,&quot; suggesting that words of incitement are a necessary condition. No doubt, the Court was aware of Judge Hand's use of that term. But, of course, the Court did not state explicitly that a speaker has a First Amendment defense. Rather, it used an additional term, advocacy directed to &quot;producing&quot; the imminent criminal conduct. Arguably, unless the &quot;producing&quot; language was merely surplusage, the Court recognized that language not explicitly inciting lawless conduct may nonetheless be sufficiently dangerous that it should be criminalized.
We can only guess at what argument he has in mind, but one possible argument is that the standard is unconstitutionally vague, similar to the argument by McDonnell in the recent McDonnell v US (admittedly about a different statute). The vagueness argument was developed in several of the briefs: http://www.scotusblog.com/case-files/cases/mcdonnell-v-united-states/ The unconstitutional vagueness argument has also been made specifically about 18 USC 793 (e). US v Hitselberger 1:12-cr-00231-RC D.D.C. (2014). The defendant made a motion to dismiss based on constitutional vagueness, but this motion was denied. Private Manning raised the same defence, also unsuccessfully: http://fas.org/sgp/jud/manning/051012-vague.pdf
They both can be found liable, but not by using the but-for test. Suppose that person A and person B each independently negligently discharge firearms and that each on its own would be sufficient to kill person C. Is it true that, "but for the actions of A, C would still be alive?" No. Is it true that, "but for the actions of B, C would still be alive?" No. Using the but-for test would not be able to assign liability to either A or B. "But for" is not an obvious phrasing for non-native English speakers. It's the same as asking, "If it were not for the actions of A, would C still be alive?". However, courts and juries are not limited to using the but-for test for causation. See Corey v Havener, 182 Mass. 250 (1902): It makes no difference that [...] it is impossible to determine what portion of the injury was caused by each. If each contributed to the injury, that is enough to bind both.