Duke and Prosecutorial Hazard

The recent dismissals of all charges brought against the Duke lacrosse players—accompanied by condemnations of the prosecutor who originally brought the charges—reminded me of something said in 1940 by Supreme Court Justice Robert H. Jackson, who later presided over the Nuremberg trials.


Jackson said “The prosecutor has more control over life, liberty and reputation than any other person in America. His discretion is tremendous…The citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law, and not factional purposes.”


Whatever other lessons we may learn from the sorry spectacle at Duke—lessons about race, privilege and resentment, or the ease of playing to an ever-more sensation-seeking media—surely the importance of prosecutorial integrity is the most important. Prosecutors are officers of the court; they are lawyers for “the people.” If they do not place their duty to the truth above personal or partisan considerations, they can do enormous damage both to the lives of individuals and to public trust in our institutions.


It isn’t only Duke. In Wisconsin, a Republican U.S. Attorney launched a corruption case against an obscure state bureaucrat, and even got a conviction. It was an election year, and not surprisingly, the case was featured prominently in attack ads against the Democratic governor. After the election, the appeals court threw the case out.  The opinion, written by (exceedingly conservative) Judge Easterbrook, called the evidence "beyond thin" and the case “preposterous.”


The Wisconsin case, even more than the travesty at Duke, provides a telling example of why the current Congressional investigation into the Justice Department’s firing of eight federal prosecutors is so important.


The previous Congress ignored numerous warning signs about politicization of the Justice Department—from the hiring of attorneys with few qualifications and little experience, to the departure of career lawyers who had served both Republican and Democratic administrations. Seasoned career lawyers were overruled so that the department could reverse prior policy in voting rights cases. The list goes on.


Then there is the curious “coincidence” that several of the fired prosecutors came from battleground states that will be critical in the 2008 election: New Mexico, Nevada, Michigan, Washington and Arkansas.


It is easy for citizens numbed by the constant drumbeat of accusations and counteraccusations and disgusted by the political gameplaying and outright corruption of the last several years to shrug off the situation at the Justice department as one more fight between equally unpleasant political insiders. But that would be a mistake, because we all have an important stake in the independence and integrity of the men and women entrusted, literally, with life and death decisions.


Once we lose confidence in the probity of those officers of the court, once we suspect that they have based the decision to pursue (or overlook) behaviors on political calculation rather than on the evidence, we will have lost what John Adams memorably called “a government of laws, not men.” We really will have lost America.