Re David Gregory's deliberate breaking and unwitting mockery of a dimwitted law

My blogospheric friend Patrick Frey — a/k/a Patterico in the blogosphere, but by day a senior felony prosecutor for some of the most violent and gang-ridden parts of Los Angeles — posits an interesting question: "Should David Gregory be prosecuted?" (The background to and context for this inquiry is concisely explained there, so I won't repeat that here.) Frey's commenters, from across the political spectrum (including some articulate leftie opinions too), offer some interesting comparisons, ask some provocative follow-up questions, and make some excellent points.

I reprint here (slightly edited for clarity, but without block quotes) my own pair of comments there:

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114. Because of his defiant mockery of the law, he should be prosecuted.

Because the law is ridiculous, his sentence (fine and jail time) should be suspended. But he deserves to have the conviction on his record, forever.

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170. In my comment above (#114 — 12/28/2012 @ 1:06 pm), I opined that David Gregory “should be prosecuted[, but that b]ecause the law is ridiculous, his sentence should be suspended.” I frankly was assuming he’d plead guilty in exchange for the suspended sentence, and I’m still confident that would be the likely outcome if he were prosecuted (which he won’t be).

But in my assumptions, I was skipping a possible step: the trial.

And frankly, despite my utter and complete lack of regard or sympathy for Mr. Gregory, I’d be almost equally happy either to see the jury hang or to see him acquitted outright as to see him convicted (and his sentence suspended), because:

On these facts, an acquittal could only happen through an act of collective and willful civil disobedience by the jurors — “jury nullification,” which the judge's instructions would likely forbid the jurors to do, but which the judge could do nothing to correct if it happened. It would be useful for a Washington, D.C., jury to produce such a vivid data point on the practical unenforceability of such laws even when they are violated on national television; and

A hung jury, or better, a series of hung juries, demonstrates the same point, but with the Kafkaesque but karmically appropriate wrinkle that Gregory is re-subjected to trial again and again.

What we are talking about here is not just the way laws are applied, but the way they are seen to be applied. The latter is as essential to an ordered society under the Rule of Law as the former. It corrodes the Rule of Law to punish Gregory for this indisputable and indisputably silly crime. But the Rule of Law is likewise corroded if we selectively pretend that this law doesn’t exist, or if we pretend that David Gregory didn’t break it.

That’s why he should be prosecuted, regardless of the outcome. The worst of all worlds is having a law like this on the books but having it enforced (or threatened to be enforced) arbitrarily.