I’m a recovering N.Y. federal prosecutor.
I say “recovering” because you never quite get over the power and authority you enjoyed as a young man – as a ‘puppy” prosecutor.
In New York, a port city, the cases are a big deal, mobsters plot their crimes a few blocks from the U.S. Attorney’s Office in lower Manhattan, vast quantities of drugs, heroin and cocaine come into the Big Apple from every direction imaginable, there are illegal transfers of money, in and out of banks, securities fraud and oceans of bad acts and words deceiving the public, plots and devices hatched by a variety of rogues within walking distance of Foley Square, where the Courts and federal prosecutors are lodged.
If you do it right, when you’re a prosecutor, no matter the jurisdiction, your mission is to do justice for the individuals charged.
The Executive US Attorney for the Southern District of New York, Sylvio J. Mollo, pulled the flag around him while he was testing my resolve to become an Assistant U.S. Attorney.
Sylvio said, “when you stand before the court as an Assistant U.S. Attorney, you represent the people and the government, but, like the flag [that he had in his hand], those you represent are silent, not there with you, and they depend on you to do what’s right.”
Years after walking out of my last grand jury as a prosecutor, I started representing the Accused, upset about how the government was pushing around those they accused – in a way I’d been instructed was just plain wrong.
I didn’t first see it as a pattern of abuse, it was more subtle, but over the years I’ve seen our “system” grow insensitive, harsh and unfair.
Some partisans might think this is about the Mueller investigation but this is really about ordinary persons getting wrapped tight around the axle that’s our flawed “system.”
Justice is merely a coincidence of the system, not a consequence of it.
The proof is elementary. When a so-called criminal justice system convicts and punishes the innocent, it’s not just or fair.
When investigators cheat, prosecutors withhold exculpatory evidence, and defense counsel don’t know what they’re doing, we can’t expect anything like justice.
When judges are former prosecutors, who don’t appreciate the defense function, justice is elusive.
When judges fail to sanction proven misconduct by prosecutors and/or law enforcement, they encourage even more misconduct.
Of course, this is not true in every case, for every court, for every judge.
But the “lapses” come with such frequency and most often to persons of color, or foreign born, or relatively poor, and with such devastating results, that it has become systemic.
Bob Dylan long ago sang a song, “Hurricane,” about the conviction of an innocent man lamenting the shame that Bob felt “to live in a land where justice is a game.”
We have made progress from when the famed defense counsel, Clarence Darrow, had to improvise to approximate justice.
Many of these constitutional safeguards arose out of decisions by the Earl Warren Court in the 50s and 60s.
There has been an effort, following upon the Warren Court, by invoking a “legal theory” called “original intent,” and the purpose of this school of “thought,” is to overturn or compromise the safeguards of good and right conduct in our criminal justice system.
The most obvious flaw is the intent of our founders, that they recognized blacks as fractional persons, women as chattels, and, the worst, they embraced our “peculiar” institution – slavery.
Our founders knew our Constitution had to be flexible, to change with the times, and they made the Constitution subject to amendment; they amended it almost immediately after the Constitution was written, incorporating a bill of rights to protect the individual against the wrongs that might be inflicted by the majority.
We must learn how our system should work so we can insist sit work as intended – fair and just for all.