A Context for Fairness

Guest Post by Cheryl von Drehle

“No fair! No fair!” That ubiquitous cry of children rings down through the centuries and across the world. Children seem to possess some innate sense of fairness, at the very least a perception of when they are not being treated fairly. And how do most parents commonly respond? “The world is not fair… learn to deal with it!”

Generally good advice, except when it comes to our court system. The supreme importance of fairness and integrity in our court system is widely recognized, from the Old Testament: “You shall not pervert justice. You shall not show partiality, and you shall not accept a bribe, for a bribe blinds the eyes of the wise and subverts the cause of the righteous (Deuteronomy 16:19); to our founding fathers: “the due administration of justice is the firmest pillar of good Government… .” (George Washington, in a letter to Attorney General Edmund Randolph on September 28, 1789).

One particular facet of the court system, the prosecutor’s office, holds considerable power in determining fairness. As described by former U.S. Attorney General Robert Jackson in his Address to the Second Annual Conference of United States Attorneys (April 1, 1940): The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous…. 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.”

According to the American Bar Association (Standard 3- 1.2 The Function of the Prosecutor), “the duty of the prosecutor is to seek justice, not merely to convict.” When the prosecution withholds evidence, takes bribes, colludes behind the scenes with the police or the judge, or otherwise engages in misconduct, terrible injustices result.

Prosecutorial misconduct, as summarized on the website uslegal.com, is,

“conduct which violates court rules or ethical standards of law practice. Examples, among others, may include:

Courtroom misconduct (making improper remarks or improperly introducing evidence designed to prejudice the jury; … or making improper closing arguments);

Hiding, destroying or tampering with evidence, case files or court records;

Failing to disclose evidence that might tend to exonerate the defendant;

Threatening, badgering or tampering with witnesses;

Presenting false or misleading evidence;

Selective or vindictive prosecution;

Use of unreliable and untruthful witnesses and snitches”

Google “prosecution misconduct” and a startlingly array of cases pop up. Looking specifically at misconduct in shaken baby syndrome/abusive head trauma cases, a recent compelling article highlighting prosecutorial blinders in focusing on outdated medical science is found here: http://www.theatlantic.com/health/archive/2014/11/how-can-doctors-be-sure-a-babys-been-shaken/382632/?utm_source=btn-facebook-ctrl2 . This article further references a book written by Deborah Tuerkheimer detailing these faulty prosecutions. An article by Tuerkheimer recently appeared here: http://www.cbsnews.com/news/questionable-convictions-in-shaken-baby-cases/ .

A review of the evidence tabbed on this website for the Burns’ case reveals similar prosecutorial misconduct. Significant suppression of evidence; collusion; withholding of evidence (medical records; e-mail) and unprofessional behavior (witnessed by observers) is thoroughly documented on this website.

We may shake our heads and rue the loss of justice. Court proceedings often seem remote. However, if we fail to work together to eliminate prosecutorial misconduct, the familiar adage from Martin Niemöller, who finally had the courage to speak out against Hitler, becomes a chilling reminder:

First they came for the Socialists, and I did not speak out—Because I was not a Socialist….— Then they came for the Jews, and I did not speak out— Because I was not a Jew. Then they came for me—and there was no one left to speak for me.

8 thoughts to “A Context for Fairness”

  1. I am so sorry to hear this. My granddaughter was side track by them and lost 4 of her children. I wont go into her ordeal here but I will tell you to keep fighting. It has been several years since they took her children and she lives with it every day. Dont give up and fight fight fight

  2. This is sad. I was a foster parent for 5 years and saw to many children’s lives torn apart. Not able to see their grandparents or any other family member that they were use to being with just because there was an investigation. Oh there are cases that are real and justified but for the most part it is a power struggle and money. The more children the state has in custody means more money for the state/county. And so many times simple play times were taken out of context and made child abuse out of innocent play. It seemed to me that to many CPS workers want to win not really caring about the out come. And the innocent children suffer. I have very little respect for child protective services. My heart goes out to this family. God be with you.

  3. This brought tears to my eyes. I have been through the “shaken baby syndrome” circus personally. Turns out that after a 6 month investigation and losing custody of my first born for 30 days after 5 holes being drilled into his skull at 3 months old to relieve fluid….that it was exactly what we, and our expert neurosurgeon who we hired to testify for us, had said from the very beginning….a BIRTH INJURY!!! So not only did the very hospital that delivered my son put us in the position, they then spear headed the ensuing injustices that we suffered through. Fortunately, we had an excellent attorney and the resources we needed to be able to have the case dismissed. But the damage was done and I will NEVER EVER FORGET what these people did in the name of “justice” and the “welfare of the child.” They were completely wrong then and they continue to put families through these ordeals over and over again because as social workers they have immunity from prosecution!! So there are no repercussions for them if they are wrong. When will something be done to prevent this from happening to innocent families who are purely victims of accidents or unintentional mistakes? Since when do you have to be perfect to be a good parent?…end rant. I’m sorry, I still get very heated and emotional when I see stories like this that hit so close to home. Josh and Brenda, I hope that you can see your way out of this somehow, and that you can have your family back. Good luck to you, I will keep you in my thoughts and prayers!

    1. Thank you for your post. It is discouraging to think of how many families are suffering from these junk science prosecutions.

  4. Jennifer, I’m so sorry for what you went through. Until Brenda and Josh had this happen I was unaware of all these cases. It saddens me to no end to think of all the families hurt like this. Maybe this website, your letters and other’s will help bring this terrible problem to the public and something will be done about it. Thank you for your kind thoughts.

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