Tuesday, March 14, 2006

Special Duties of a Prosecutor

In American we really, really believe in the adversary system. It has been a central tenet of our justice system that justice is achieved by providing both parties, or the state and the accused, with attorneys who will zealously strive to present the best possible evidence and argument for their side.

The tactics that the sides are permitted to use, however, are not unlimited. Especially with regard to prosecutors, who have the weight of all the law enforcement agencies and their power to investigate, search, threaten witnesses, and otherwise compel testimony, it is important to limit their activities to those that do not violate the law, and do not distort the fairness of the system. My copy of the ABA's Model Rules of Professional Conduct refers to the "Special Responsibility of a Prosecutor", and the official comment to this rule states that, "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence." These obligations are imposed not just to be nice, but also because society as a whole loses confidence in the judicial system if the prosecution is allwed to break the law.

Now we see another instance of the Bush Administration violating the law, and placing its own anti-terror efforts at risk. Judge Leonie Brinkema, who is hearing the prosecution of Zacarias Moussaoui, is considering denying the government's request for the death penalty, or granting a mistrial, because of the prosecution's tampering with its own witness, in violation of the court's explicit order. Not only that, this is the second time in a week that the prosecution has violated either the court's explicit order or a very clear constitutional obligation.

If you're a death penalty opponent this may not seem like such a bad thing, but if you are concerned with making sure your government obeys the law when it acts in your name, maybe you should be concerned. And whoever you are, since we now know that innocent people may be scooped up in the campaign against terrorism (or domestic dissent), you should be very worried that if they decide they don't need to follow the law when they're prosecuting Moussaoui, why should they follow the law if they decide to prosecute you?

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