I wonder if it was a smart idea to televise trials. Watching legal proceedings is like watching sausage being made — a bit unsettling.
The prosecutor was arguing as forcefully as she could that the defendant should be convicted. The intensity of her prose, strident tone, and aggressive posture impressed me. What was it to her? Of course, prosecutors want to win; winning is, after all, what it’s all about. But this prosecutor seemed to regard the defendant’s alleged crime as a personal affront, while, in reality, whether the accused was actually guilty, or actually convicted, couldn’t possibly mean much to the prosecutor except another scalp to hang from her belt. Did she bring this passion to convict to every case she tried?
It suddenly dawned on me that there is a momentous difference between prosecutor and defense. The latter works voluntarily; the former is coerced, so to speak. He (or she) may need to whip himself into a frenzy to do the job effectively.
A defense attorney can accept or reject a client. If he thinks the case is winnable, or that the accused doesn’t deserve conviction, he’ll take it. (The question or guilt or innocence is probably irrelevant. It’s a high-stakes game, and the winners of games aren’t necessarily the most virtuous, or least vicious.) But the prosecutor has no such option. The case is assigned by his boss; he’ll take it if he knows what is good for him. He may think it weak, or un-winnable. He may find himself extremely sympathetic to the accused. No matter. He must demonstrate righteous indignation and outrage to the jury if he wants to win.
It’s much the same for the judge. There must be many instances in which a judge knows what he is expected to say, even if he feels disinclined to say it. Neither judge nor prosecutor, for instance, dare refer to jury nullification, yet juries unaware that they may disregard the "law" are little more than rubber stamps for the judge’s instructions. Judges may forbid juries from seeing certain items of evidence; they may deny the jury’s request for information or clarification. Obviously, these decisions are made with a certain object in mind, and more likely than not, it’s a politically correct object. Neither prosecutor nor judge is entirely free to follow his conscience unless he is willing to risk his career doing it. In a tax case, for instance, the judge, who is, after all, directly or indirectly employed by one of the litigants (guess which one!) surely knows, even prior to opening statements, which side is "correct."
Is there a personality difference between prosecutors and judges, on one hand, and defense attorneys on the other? As a medical student, I was impressed by the differences between internists and surgeons. They’re not cut from the same cloth. Perhaps the same is true for prosecutors and judges compared with defense lawyers. A young idealistic law-school graduate may accept a position offered by the prosecutor’s office, and find himself wrestling with his conscience. He may be assigned to prosecute an alleged drug offender, while personally believing that drug use should be legal. Maybe he even uses a little marijuana himself now and then. Eventually he may find himself on the bench, where the problem is magnified. He now finds himself required to pronounce sentences on people whom he feels, in his own heart, should never be punished for what they did, or punished less severely than the law requires. Defense attorneys may have once been prosecutors; are there many prosecutors who were once defense attorneys?
Of course, there are cases that do not have a politically correct aspect: neighbor sues neighbor over a barking dog, or Mr. X is accused of robbing a blind man. But the proliferation of laws having little purpose except to further the government’s agenda, and in which the government, or one of its agencies, is a litigant, means that more and more cases will need to be concluded the "proper" way if prosecutor or judge wants to retain his job.
Maybe this makes prosecutors and judges (government lawyers, in other words) misanthropic and miserable. On the other hand, perhaps only those with a penchant for big government seek out legal positions with the government, so their consciences are never bothered. In that case, however, what chance does a freedom-loving individual have in court?
Once again it seems clear that courts should be independent of government: free-lance operations. You hire a lawyer to defend yourself against the charge of defacing a wetland, and the government does the same from a pool of prospective private prosecutors. Then both lawyers agree upon a judge. If justice is to be done (admittedly a naïve aspiration) perhaps the fate of the judge and prosecutor shouldn’t be related to pleasing their boss, who may be a party to the case!
Dr. Hein [send him mail] is a retired ophthalmologist in St. Louis, and the author of All Work & No Pay.
