Photo by GR Stocks on Unsplash

A prosecutor in Florida announced that he would not prosecute women for having abortions or doctors for providing them. Then Gov. DeSantis promptly removed him.

I appreciate — no, I love — the sentiment of the prosecutor, but he’s no good to anyone if he isn’t in office.

Imagine a different scenario. What if that prosecutor had decided, without any fanfare or announcements, that he would never prosecute an abortion case, but kept this idea to himself? And what if — instead of some grand announcement — each and every time a case was brought to him, he simply declined to prosecute, by claiming there wasn’t enough evidence to secure a conviction?

Let’s say that he got away with this for some time, until someone noticed and asked why he wasn’t prosecuting abortion cases. What if he said something like “I know how important these cases are to the people of Florida, and I need to make sure we can win.” In saying this, the prosecutor pretends that he’s on board to prosecute these cases. In fact, he cares so much about upholding the law criminalizing abortion, he wants to be discerning about which ones he prosecutes, lest he start losing these important cases.

Of course, he’s being dishonest. He acts as if he’s declining to prosecute these cases because he wants to win each and every case, when the opposite is true. He’s flying under the radar.

Who is more powerful? The prosecutor removed by DeSantis, or the fictional one who pretends to go along with this new criminal framework, but throws a monkey wrench into the whole apparatus, grinding it to a halt? I vote for the second one.

Quietly using the tools created by unfair systems to dismantle unfair systems isn’t a new or original idea. Paul Butler, a law professor at Georgetown and commentator, has been talking about this type of power for a long time. He is an advocate of jury nullification, a tool used by jurors who, despite believing that the defendant is guilty of the criminal charge, acquit them anyway. In the 1800s, jury nullification was used during prosecutions under the Fugitive Slave Act, often rendering it meaningless. Butler believes that jury nullification can be used today undermine systemically racist laws.

How about we use it for the upcoming criminal prosecutions against women who have abortions and the doctors who perform them? The difficulty, of course, is that to practice jury nullification in cases like this, you’d have to get on the jury in the first place. (For this exercise, we are assuming that we don’t have our fictional prosecutor who has declined to bring these cases). If you’re strongly pro-choice, you’d have to lie during voir dire, because you’ll never make it on the jury otherwise. Like the fictional prosecutor above, you would have to lie.

Paul Butler suggested a similar scheme for death penalty cases; he advised lying during voir dire to say you were for the death penalty even if you were opposed, getting on the jury, and then thwarting a death sentence. I happened to be in a room filled with international law professors who specialized in human rights law when Paul Butler gave a lecture and trotted out this idea.

All hell broke loose. The other professors were aghast. All of them were against the death penalty — these were human rights scholars after all — but they nonetheless couldn’t get behind lying under oath in a court of law, no matter the reason. “It corrodes the whole judiciary, if we lie” one professor said sadly.

At the time, I agreed with the sad professor. I was a young law student; my bright-eyed and bushy-tailed outlook on the world did not include encouraging people to lie under oath. But now I’m not so sure.

In the wake of Dobbs, we have seen some really batshit laws come into effect, with some really batshit outcomes. In Arizona, a 14-year-old with painful arthritis was denied a refill of her medicine, because it could lead to spontaneous abortion. This means that the batshit pharmacist who made this batshit decision thought that it was plausible that a 14-year-old could be pregnant, and if so, she should be denied an abortion. (“‘The pharmacist said she denied it because Emma is 14 years old,’” which is considered a childbearing age, [her mother] said.”) So yeah, Paul Butler may be on to something.

Quiet has always been powerful. Our family friend Sonia was in the Resistance during WW2. She used to tell me stories of riding bikes past the Gestapo with young girls on the handlebars, on their way to a picnic. Sonia would smile and wave at the Gestapo officers, and so would the young girl. It doesn’t sound like resistance at all, except the young girl was Jewish, and on her way to the next safe-house. Around dusk, Sonia would ride back into town, again smiling and waving, but on the return trip there was no girl on the handlebars. The Gestapo never noticed.

These days, there’s a lot of squawking about injustice and power imbalances, and I guess some squawking has its place. But is it brave? Does it change anything? Or does it just lead to long comment threads and retweets, while we all lie on our couches with greasy potato chip fingers, scrolling past? (Just me?).

I’m getting tired of the squawkers, and their lack of real power. I think they know how powerless they really are, which makes them squawk more. Keep squawking and maybe no one will notice that you’ve done nothing else.

Give me the prosecutor who who pretends to be too busy and addled to even know how to issue a press release. That’s who I want on my team.

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