In my first post here at LRC, I made the point that there is no justice done in a case if a plea bargain is used, no matter if the defendant is actually guilty or if he is innocent. No one e-mailed me to quibble on that point, but I did get tons of mail saying that I had only touched on one small part of the problem and had left out various other parts of the puzzle.
I acknowledge that the situation is so complex that even a full sized book on the subject would have to leave out many items. I do think that the prosecutor is one of the larger parts of the puzzle; the puzzle of what went wrong in our justice system. Look at what Robert Jackson said almost seventy years ago; Robert H. Jackson was a United States Supreme Court Justice from 1941 until 1954 and was the chief prosecutor of the surviving Nazi leaders at Nuremberg, Germany in 1946. As Attorney General in 1940, he said in a speech to the United States Attorneys:
"The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst."
Even in 1940 professionals inside the legal profession could see that enormous, almost unchecked power is wielded by America’s prosecutors. I believe that ever since Richard Nixon unleashed the domestic "war on crime" in the 1970s that the only thing the public has paid much attention to is the "batting average" of the prosecutors; that is, the rate of convictions. The conviction rate has become the main test of the performance of the prosecutor, even though officially our system asks that the prosecutor seek justice first and foremost. It is an accepted maxim that unchecked power leads to abuse; so why do we not see that it is impossible to merely trust that our prosecutors are acting in the interest of justice rather than their own selfish designs without some effective oversight mechanism?
It is very difficult for we non-lawyers to comprehend what is actually happening in the justice system these days. I read an anecdote by a defense attorney from New York on his blog about an incident that changed his mind on what was important in the criminal justice system. He tells us that everyone in court uses section numbers, case names, acronyms, and other inside code; and that acronyms vary county to county so that even lawyers from other places may not understand it all. He even says that there is benefit in some use of insider code since a lawyer might wait hours in the courthouse to get a few minutes in front of the judge and the insider code speeds things up; but the system is made by lawyers for lawyers.
Lawyer Scott Greenfield who practices in New York tells us he used to enjoy being a cool young lawyer who knew the code. One day he had a client who was being badgered by a judge to accept a plea bargain and the man had no idea what was going on. He was about to make a decision that would affect his family and himself for the rest of his life, and the judge demanded an answer in ten seconds. Ten seconds to decide; and the language everyone was using may just as well have been ancient Aramaic. The man just broke down and cried! I have this picture in my mind of some big tough man of the streets just weeping at the absurdity of it all.
Greenfield wrote that it was this incident that taught him that the most important man in the courthouse was the defendant and that he was being ill served. He tells us that from then on he would tell the defendant the day before a court appearance what was probably going to happen, and he would spend time afterward telling the defendant what did happen. The law and the courts tell us that the defendant must agree to a plea bargain in a “knowing, voluntary and intelligent” manner, but simply because it makes perfect sense to the lawyers involved does not mean that the defendant knows what is happening!
I also see by a report from the Dallas Morning News that a judge has called for retrial in a 1986 slaying case because of an ex-prosecutor’s misconduct in the case. The judge ruled that a Cooke County district attorney "committed prosecutorial misconduct during the murder trial of a man accused of shooting and raping a Garland woman two decades ago." I have read things like this in newspapers most of my life but I was surprised to read that in Texas, "there is no criminal charge for a prosecutor who violates the law by not turning over evidence that could be favorable to a defendant." Can a prosecutor do anything without facing legal charges? I do not know at this time, I only know that in Texas a prosecutor may hide evidence, that would help the defense, without fear of going to jail himself under state law.
Martha Stewart went to jail for merely proclaiming that she had done nothing wrong. The notorious former Durham County District Attorney Michael Nifong was sentenced to one day in jail for trying to frame young men for rape and in the process he raped the justice system in North Carolina. And now I see that Texas will not even put a penalty on the books that makes withholding evidence by the prosecutor illegal!
Dr. William L. Anderson of Frostburg State University, contributor to LewRockwell.com, has outlined the case of former Durham County District Attorney Michael Nifong in the Duke non-rape case in a series of posts. I will not repeat his wonderful reporting here except to point out that the case showed America how powerful the office of prosecutor is. Anderson had this to say in one of the last reports of his that I was able to read:
…I have no doubt that had [Mike Nifong] been able to take his faux rape case to a jury in Durham, there would have been a conviction, and David Evans, Collin Finnerty, and Reade Seligmann would have been dead meat in prison, the target of black gangs seeking revenge against the men who “raped a sister."
The notorious Mike Nifong was trying to utterly destroy the young men; and their fate, if he had succeeded, is beyond my ability to comprehend and yet I still wondered if he was just a "bad apple" in the system. The Wall Street Journal stated that Michael Nifong’s case was not unusual, "For all the public shock and fury over his behavior, there is little that is new or strange about Mr. Nifong. We have seen the likes of this district attorney, uninterested in proofs of innocence, willing to suppress any he found, many times in the busy army of prosecutors …"
Was Nifong a "bad apple" or was he a typical prosecutor? Does the system, made by lawyers and for lawyers, produce a situation that will often lead to injustice? Will a system that does not even care if a defendant understands what is happening around him ever really care about justice in his case? I think I am afraid to know the answers to these questions for certain. Has my country fallen to the state of so-called justice that was so evident in Stalin’s Russia?
If so, what to do? Arm yourself with the information to see into the "gibberish" and understand the true situation; and then spread the word of what you find among friends, family, co-workers and anyone else that will listen, and always remain hopeful that we may yet rebuild the system of justice we inherited from the British.
April 8, 2008
