Wonder of wonders! A Louisiana prosecutor has been disciplined by the Louisiana Supreme Court for withholding exculpatory evidence in order to get a death sentence for a 16-year old. The witness who obligingly picked the suspect out of a lineup had told the police that she was not wearing her glasses or contact lens at the time of the shooting, but her admission did not reach the defense attorney.
According to Susan Finch, reporter for the New Orleans Times-Picayune, this is the first time in Louisiana history that an erring prosecutor has been punished.
It is not much of a punishment — a three-month suspension to be waived unless he commits another ethics violation within the next year. But the prosecutor, Roger Jordan, is upset that the high court has blemished his reputation and is asking the court to reconsider.
Jordan claims that he did not knowingly violate the rule that requires prosecutors to turn over exculpatory evidence. He says the rule is "vague" and that in applying the rule to him the court legislated from the bench.
Jordan’s claims tell us a lot about the state of prosecutorial ethics. The legal prohibition against withholding exculpatory evidence is ancient. But prosecutors today are judged by conviction rates, not by ethical behavior.
Conviction rates are believed to be a sign that prosecutors are protecting society from criminals, serving justice and being budget effective. To get high conviction rates, prosecutors engage in a wide variety of behavior that would have shocked earlier times. They suborn perjury, reward false testimony, withhold exculpatory evidence, and force defendants to incriminate themselves with plea bargains by piling on charges until the defendant or his lawyer gives up.
Jordan’s whining about vague rules and blemished reputation is hypocritical in view of the treatment prosecutors hand out to their victims. Last February prosecutors convicted New York defense attorney Lynne Stewart of violating a letter from the Department of Justice (sic) telling her the conditions on which she could represent her client! There is no statute or regulation behind the letter. How was Stewart to know that it was a felony to disobey a prosecutor’s letter?
Not content with this absurdity, prosecutors convicted the translator that Stewart used in order to communicate with her client. The prosecutor claims that the translator knew that Stewart was disobeying the letter telling her how to represent her client. But if a defense attorney did not know that the Justice (sic) Department could legislate criminal law by writing an attorney a letter, how would a translator know, assuming he even saw the letter.
Regulators and prosecutors create crimes by how they interpret regulations. Defendants don’t know they have committed a crime until a prosecutor springs his interpretation on them. You can’t get laws more vague than this.
Martha Stewart was sent to prison for allegedly lying to a prosecutor about a non-crime, and she wasn’t even under oath. She was a victim of the prosecutor’s desire to gain name recognition with a high profile case in order to run for political office.
Prosecutors are in the process of criminalizing the protections that were put in our legal system to protect the innocent, such as the attorney-client privilege. We have reached the point where an attorney who does too good of a job defending his client can be indicted for aiding and abetting a criminal.
Prosecutors have destroyed the rule of law and put rule by prosecutors in its place.
Decades ago attorney generals such as Robert Jackson told prosecutors that they had a twofold duty: to the law and to the defendant. Their job, he told them, was to serve justice through a fair trial, not to gain a conviction at all cost.
Prosecutors no longer hear such instructions. Defendants, whether innocent or guilty, quickly learn that they are not going to get a fair trial and that a jury will not be presented with a fair case. Defendants incriminate themselves with a plea bargain, because the penalties from going to trial are much heavier.
In 95 out of 100 cases, the evidence against the defendant is never tested in court. This has corrupted police work. It is easier to round up the usual suspects than to solve a case. High recidivism rates may simply reflect the practice of rounding up those with records.
A good indicator of the corruption of the criminal justice system is the departure of compassion. I can remember when prosecutors would investigate the defendant’s side of the story and when police were helpful and used judgment in exercising their authority. Now they go out of their way to ruin people. In the news recently, police arrested two little boys, seven and eight years old, for fighting. They handcuffed and booked the children. Police traumatized a twelve-year-old girl by handcuffing and booking her for eating a french fry in a Washington DC metro station.
Recently a father was arrested for child abuse because he had his two-year-old with him when his truck broke down at 3 AM. The father was put in jail and the kid was put in custody. Whatever stress the father was under was certainly worsened by the poor judgment of the police.
The days are long gone when the police would have called a tow truck and given the father and baby a ride home.
Dr. Roberts [send him mail] is John M. Olin Fellow at the Institute for Political Economy and Research Fellow at the Independent Institute. He is a former associate editor of the Wall Street Journal, former contributing editor for National Review, and a former assistant secretary of the U.S. Treasury. He is the co-author of The Tyranny of Good Intentions.