|The Divine Right of Kings|
JUDGE HAYWOOD: Herr Janning, it 'came to that' the first time you sentenced a man to death you knew to be innocent.
- Judgment at Nuremberg (Kramer. 1961)
A telling glimpse at the American political culture is seen in the reaction to the January 2014 legal opinion of Richard Posner, judge on the Court of Appeals for the Seventh Circuit.
The case, Fields v. Wharrie and Kelley (No. 13-1195) (740 F.3d 1107; 2014 U.S. App. LEXIS 1333), drew a few notices in legal journals and blogs, even though Posner blasted corrupt prosecutors for their mendacious, "breathtaking injustice" that landed an innocent man in prison for 17 years.
Beyond that, the silence out was deafening.
"If the old Lord Acton axiom is true — that power corrupts, and absolute power corrupts absolutely — enormous power with no accountability can be enormously destructive," opines Radley Balko on the case. (Washington Post)
This is precisely what happened, as Posner notes of Mr. Fields who "until he was acquitted in a retrial; he later received a certificate of innocence from the court in which he had been tried," was the victim of "coerced witnesses to give testimony that the defendants (prosecutors) as well as the witnesses) knew to be false."
Much good may come from Posner's decision demanding accountability, affirming the right of the innocent and wrongfully convicted to sue for damages against deceitful prosecutors.
Absolute immunity for prosecutors, what former federal prosecutor Sidney Powell correctly notes is prosecutors' License to Lie, may go the way of the divine right of kings.
What I can guarantee you is that the speeches of Robert Jackson will not populate the campaign webpages of most candidate for District Attorney and Attorneys General across the nation. Jackson's words should. Said Jackson in a famous address in 1940:
Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.Today, police, prosecutors and judges all too often engage in careerism and are laden with defects of character, imprisoning millions of Americans in creating what Glenn C. Loury in the Boston Review terms "a leviathan unmatched in human history." I know of Dane County (Wisconsin) police who have intentionally corrupted the judicial process for civil traffic violations.
This must change.
Face it. We live in a society so putative that innocents are routinely sent to prison, and killed.
You may see a case covered in the 'news' once every three or four years like Cameron Todd Willingham in Texas, but innocents suffering in the American leviathan face perpetrators and bystanders.
The words of Posner in Fields do bring some comfort:
A prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a 'license to lawless conduct,' which the Supreme Court has said that qualified immunity is not to do. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). [Prosecutor] Wharrie's interpretation of our decision in Buckley would place that decision in conflict with the Supreme Court's Buckley decision, by giving absolute immunity to prosecutor-investigators who having fabricated evidence make sure that the evidence is used to convict the innocent victim of the fabrication. (emphasis mine)The criminal justice system is a horror show and prosecutors are a big part of the problem.
Here's Sidney Powell's latest commentary, and as Powell knows the ethical violations by prosecutors are committed by local district attorneys' offices as often as by the federal DoJ:
By Sidney Powell
The Project On Government Oversight published an extensive report yesterday revealing that Department of Justice has been concealing hundreds of ethical violations by its prosecutors. Adding to this injustice, the Department refuses to identify the offending prosecutors or to inform defendants who have been affected by their misconduct.
In the majority of the matters—more than 400—OPR (Office of Professional Responsibility) categorized the violations as being at the more severe end of the scale: recklessness or intentional misconduct, as distinct from error or poor judgment.We can say from our own experiences with the Department’s “Office of Professional Responsibility” that it is ineffective if not complicit. Legitimate grievances go ignored. Their primary expertise lies in circling the wagons and protecting the offenders. This report makes it all the more clear. There is no transparency, and consequently, the Department of Justice can be given no credibility. It is way overdue for a major clean-up, and as Judge Kozinski, and the Washington Post and others have said recently, it is time for a national discussion of these issues crucial to the administration of justice–if there is to be any justice at all.
The information the Justice Department has disclosed is only part of the story. No less significant is what as a matter of policy it keeps from the public.
As a general practice, the Justice Department does not make public the names of attorneys who acted improperly or the defendants whose cases were affected. The result: the Department, its lawyers, and the internal watchdog office itself are insulated from meaningful public scrutiny and accountability.
For my part, I know of a district attorney in northern Wisconsin who should he attempt to maliciously prosecute an innocent again, I will dedicate myself to making him the most famous DA in Wisconsin history.