The chief prosecutor of the Nuremberg trials and our broken justice system

 Robert H. Jackson was the chief prosecutor at the Nuremberg trials of the Nazi leaders at Nuremberg, Germany in 1946. He was also a United States Supreme Court Justice from 1941 until 1954. In 1940 he was the Attorney General of the United States and gave a very illuminating speech to the United States Attorneys. In part he told them:

The 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.”

In 1940 professionals inside the legal profession could see that enormous, almost unchecked power is wielded by America’s prosecutors. Today we have the results of the ill-fated “war on drugs” declared by former president Richard Nixon in the ’70s. Today all the public cares to see is the conviction rate of the prosecutor. Few care about justice or if the defendant is really innocent.  It is an accepted maxim that unchecked power leads to abuse. We have all powerful prosecutors and so we have out of control prosecutors.

On the other hand, it may be that it is the entire system that is rotted to the core. Defense attorney Scott Greenfield had a recent post about an academic symposium on convicting the innocent. In that post (which you really should read) he writes:

Few would argue that the criminal justice system is a well-oiled machine, but Bibas’ solution is to make it more transparent and democratically accountable for its failures.  Not leveling the playing field, nor invigorating constitutional protections, but increasing the “quality of convictions” by exposing factual and moral injustices.

One of the recurring themes is that the failure of the system isn’t due to overzealous, lying prosecutors and judges who refuse to enforce the Constitution, but criminal defense lawyers who fail to win and, instead, rush to plead their innocent clients. They tend to hate pleas and love trials, which tells me that they have either never tried a case as a defense lawyer or have conveniently forgotten what it’s like when the other side holds all the cards. They adore the absurd fallacy of a trial being a search for the truth rather than a one-sided inquisition.

It is high time that we take a strong look at our out of control “justice system” that conservatives love so much and seek real justice. After all, as Greenfield says, “Where is the recognition of innocent defendants facing lifetimes in prison with cops trained to lie, judges who play the odds, prosecutors who can’t distinguish Brady if it bit them on the ass and identifications that everyone swears are just perfect?  The system is broken? Sure, that’s easy to say.  But to understand how it’s broken requires one to understand not only how it’s supposed to work, but how it actually happens. They either don’t, or won’t admit to it, because it would be impolite to call their former prosecutor brethren mean names for their role in the failure.”

It is time we listen to insiders like Scott Greenfield and demand that the broken system be fixed.


UPDATE: A friend from twitter, @SingleTaxAnarch, sent me a link to a wonderful exchange concerning the topic of prosecutors. I encourage everyone to read it. For now I’ll quote one tiny part where Gerry Spence wrote:

I finished my second term having tried many more cases, none of which I lost, not that such a record stands for much. With all the power prosecutors possess, they ought not lose cases. The wrong case, the unjust case should be rejected in the prosecutor’s office before he seeks an indictment.

That says it all. When a prosecutor says that the power that the prosecutor’s office has is unbeatable then we know we have gone over the cliff into tyranny.


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