Doing Justice

Judges often defer to the State because their obligation is supposed to be to do justice. After all, in 1935, the Supreme Court summed a prosecutor's duty this way, "in a criminal prosecution [it] is not that it shall win a case, but that justice shall be done." That same obligation extends to not engaging in "methods calculated to produce a wrongful conviction."

So when courts are looking at a case, they are inclined to defer to the party whose duty is to "do justice," as opposed to advocate for an individual and the interests of the individual. Side note: In most states the appeal is handled by the Office of the Attorney General, rather than the prosecutor's office, that handles appeals and other challenges to convictions. 

In practice, I've been surprised by what "doing justice" means. For example, a Phoenix prosecutor, Juan Martinez, was found to have committed misconduct in case after case after case after case after case. And yet, over and over again, the state defended his actions. This includes defending him and his actions up until he was disbarred and despite having been found to committed misconduct in cases with the highest stakes. Taxpayers of Arizona, Demand more!!

In another instance, I've had the state agree that our evidence, if proven, establishes my client is not eligible for execution in light of his intellectual disability. Imagine my surprise, then, when the State also said my client should be executed! This was because--so said the State--he could could have raised the claim sooner. So, to summarize, doing justice means killing an intellectually disabled person because his trial counsel didn't develop the claims sooner. This client remains on death row. 

It would be too easy to say that my opposing counsel are simply committed to defending convictions--no matter what else justice may require--than in "doing justice."  But I think reality is more complicated than that. 

I think we are all committed to thinking of ourselves as being in the side of right. For my part, I believe that rendering a person helpless and then killing them is wrong. But I also understand that (1) what I think is "wrong" is not relevant to what is lawful and (2) my opposing counsel (or the trial prosecutor or the judge or a juror) is just as likely to have a very different perspective. 

So, as I undertake any effort to call out someone for some misdeed, I try to check myself. First and foremost, I make sure I have the facts right. But then I interrogate whether my inferences based on those facts is fair. And sometimes I have to dial it back. I find first drafts are well-known for being overheated. And overstating my case will be harmful to my client: instead of the case being about some zealous overreach, it could become about my own overstatements. 

So, as I ask the courts to do justice, I try to do so with humility and a recognition that we are all prone to  believe God is on our side, rather than to hope we are the side of God.  

That being said, I am also not one to pull punches. Sugar coating reality does my clients no favors. Their reality is having to overcome many presumptions against them, including unstated presumptions about deference to the state. So being unwilling to call out a misdeed for what it is does not advance my clients' cause. I am just careful to do so in ways that reflect the care, attention, and, ultimately, I hope, the humility necessary to convey the seriousness of their predicament.