The Gibberish of Injustice

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In my first
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:

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

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
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
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.

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
. 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,
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.

8, 2008

Joseph Potter
[send him mail] lives
in Florida and teaches in a small private school.

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