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.