13 April, 2007

Unethical Prosecutors - they hate our democracy and are working to destroy it

Prosecutors have a special place in the law as opposed to regular attorneys. Prosecutors get to represent the government and therefore their interest is different. A regular attorney's client is the individual, a prosecutor's client is society. A regular attorney's responsibility is to represent the interests of the client, a prosecutor's responsibility is to represent the interest of the society in their jurisdiction. In the Duke case, it appears that the District Attorney, Nifong did not meet these ethical responsibilities, which is why I wholeheartedly support the ethics investigation against him. Nothing is worse in the interest of society than a prosecutor who doesn't meet his responsibility to the point where a prosecution is brought and continued despite lack of probable cause. I don't know Nifong's priorities, from media reports it appears that there might have been the influence of upcoming elections and a big media case would certainly help his chances, especially with sympathetic public opinion. This is pathetic and disgusting. That the interests of society in making sure that prosecutions are brought with at least probable cause should be subordinated to a person's political ambitions is revolting. Just as it is equally revolting that attorneys at the Justice Department may have been pressured from other attorneys to prosecute in order to help the Republican party win elections. The criminal justice system should never be subordinate to a prosecutor's personal ambitions, whether it be a desire to win an election or to boost reputation by having a large number of convictions. Nor should representing society be subordinate to an attorney playing personal representative of an Executive branch. The interests of society and of justice must be the first priority, the only priority for a prosecutor, any other benefits are incidental. Few things corrupt society more than when false charges are brought against persons and their liberty interests threatened because of impermissible reasons. One of the hallmarks of democracy is the commitment to liberty, the idea that freedom will not be deprived without due process. Take this away and we are no better than countries that lock up/execute people on the whims of their leaders.

In terms of the Duke case, I agree that there is some sympathy for the accused. No one should be prosecuted for a crime they did not commit especially when there is so little evidence. The prosecutor, instead of gathering evidence and putting together a case and then defending the reasons for prosecution, decided the case first, tried to get evidence that fit and when the evidence didn't fit, didn't declare a mistake and drop the charges but continued his prosecution. This is intolerable. "I'm sorry, I fucked up," has turned into a bad word in this country. Nifong didn't apologise, just like John McCain and his Potemkin market out of fear of political consequences. But they did fuck up, and they should have admitted to it. There are also allegations that Nifong didn't disclose relevant material to the defence, this is a clear violation of the ethical rules and undermines due process. The accused must have full access to charges and evidence otherwise a trial is a sham and democracy is undermined.

However, for all the outrage this case deserves, I find it curious that those who so eagerly defend the Duke players are not as eager to defend non-rich, non-white persons who are falsely accused. Why not outrage over the people who are exonerated by the Innocence Project? These people actually sat on death row, sometimes for decades, falsely convicted not just accused. Why no outrage over the people released from Guantanamo after the Executive branch admitted there is no reason to keep them there? Why is a false accusation against the Duke players a tragedy when those cases are not?

The confidentiality of the identity of rape victims also gets a lot of press in this case. There is a reason for it and the reason is good. There are few crimes where the behaviour of the victim gets as much scrutiny as there is with rape. Few defence attorneys in a robbery prosecution would argue, "But look, he was wearing expensive clothing, he was asking to be robbed," or "The victim had been known for giving money to charity, he gave money to a homeless person just before, this means that he consented to being dispossessed of his property." In rape cases, the victim's sexual history, clothing, past behaviour is too often the focus of the trial rather than whether the victim consented. There is also wide non-reporting of rape because many victims fear they will be put on trial instead of the perpetrator and police, to this day, start with a presumption that the victim was either asking for it or lying. This is why there is confidentiality for rape accusers and why it should continue to exist as long as society perpetrates the idea that victims are either asking to be raped or making it up. There is a presumption that any woman who has ever consented to sex in the past automatically consents to any sex in the future. After all if she isn't worried about being a slut, why would she not consent (women after all don't enjoy sex). Even if she is a lily-white virgin, then she's lying to get money or put a good (white) man in prison. It is easy to see why rape is unreported and why false accusations are rare. Why would any reasonable person put themselves up to that level of scrutiny? Why would anyone want their name dragged through their mud because they don't fit the patriarchal standard of purity? If you don't want rape accusers to have confidentiality then change the presumptions, until then shut up and stop whining.

I don't know why the accuser in this case made the allegations she did. I suspect that the prosecutor's zeal had more to do with the prolongment of the case than anything else. When the lack of DNA came out, when the accuser constantly changed her story, when most of the probable cause turned out to be false, then the case should have been dropped. Prosecutors should not follow Bush's Iraq logic and make up evidence or refuse to disclose evidence that doesn't fit their conclusion. They should be better than that.

Prosecutors need to be held to a higher standard, to hold up justice for society, not for personal or political goals. I hope the ethics committee takes a close look at Nifong. I hope ethics committees will look at the behaviour of the attorneys in the Justice Department responsible for the firings if the evidence shows that the firings were for political reasons. Society must have faith in the independence and commitment to justice of prosecutors, otherwise there is no reason for the criminal justice system to exist.

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