It’s really strange, isn’t it? We have an administration that lied us into a war, tried to destroy the Bill of Rights, and tried to make torture acceptable. Yet none of that seems to have gained any traction with the public and the press, but the U.S. Attorney scandal has the Congress and the administration locked in a "Constitutional crisis." What could be driving this scandal when the others never got past the starting gate?
Shakespeare may have provided the answer over 400 years ago:
"THE FIRST THING WE DO, LET'S KILL ALL THE LAWYERS."
This statement of Dick the Butcher, a follower and comrade of Jack Cade, has long been the source of both derision of lawyers and the exultation of lawyers. I will leave it to the Shakespearean scholars to figure out who is right, but I have my own opinion. Dick the Butcher made his suggestion because he knew the lawyers were the protectors of the republic. By killing the lawyers, Cade would have the advantage he needed in a time of chaos.
The same is true now. Lawyers still are the protectors of the republic; they represent those who, for whatever reason, cannot speak for themselves. They keep the government honest.
The government is not collectively stupid; it has its own lawyers. The most prominent and important are the prosecutors. Prosecutors bring the charges against those who are believed to have committed crimes, and they are aided in their endeavors by a curious holdover from the English Court of Star Chamber: the Grand Jury. While the determination of guilt or innocence is left to the petit jury (a sop to the common people), the decision as to who is prosecuted for any crime is left to the discretion of the prosecutor, and very often, the outcome will be determined by the fact of prosecution alone.
Further, as any criminal lawyer will tell you, in most criminal cases, the prosecutor holds all the cards. The State will devote all the resources necessary to prosecute, and always has done so. It was not until 1963 that criminal defendants were guaranteed the right to counsel at all. The prosecution has at its disposal the investigative resources of the police, and perhaps its own investigators (or in the federal system, the FBI). The public defender may get a few dollars for investigations, but the advantage in money and sweat will always favor the State.
Lest anyone think I am bashing prosecutors, understand that I am not. The police and the prosecutors of our country have a difficult job to do. The public is not forgiving when criminals are not brought to justice. We want strong law enforcement, and we give those who enforce the law the tools with which to do it.
In the last few years, the power of the prosecutor has only grown. In California, the "three strikes" law has made the prosecutor the determining factor in whether a defendant goes to prison for the specified term for the crime, or for life. In the federal system, while determinate sentencing has been eliminated, prosecutorial discretion has not.
Lawyers have long understood this disparity in resources. The American Bar Association recognizes the power and the responsibility that a prosecutor wields, and accordingly has promulgated 3.8 of the Model Rules of Professional Conduct, entitled "Special Responsibilities of a Prosecutor."
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
So here’s the difference: this time, the Administration has awakened the sensibilities of the two million lawyers in this country. They know that the U.S. Attorney office functions largely because those people who work there are genuinely interested in pursuing justice, not convictions. When the system works, the prosecutor works for all the people, not just those who are politically connected.
In my opinion, the Duke La Crosse team case provides a good illustration of what happens when political considerations drive prosecutorial decisions. An unpopular district attorney brought a case designed to score political points, even though it appears the case largely lacked merit. It was fortunate for those charged that they had the resources to mount a serious defense. In the U.S. Attorney firing case, an unpopular administration attempted to stymie several politically embarrassing investigations in order to protect its position.
It is ironic to note that the President does make a valid point; he can appoint anyone he wants to be U.S. Attorney. If his administration stayed on that message, it is possible nothing would have happened at all.
This time, the lawyers of this country (who, for the most part are intelligent people) know that there is a serious risk that the Department of Justice has been turned into a political tool. They know the system will not function under such circumstances. The President has finally crossed the line; he dissed the lawyers.
I just hope that next time the neocons don’t read Shakespeare.