Sunday Sermon: Law and Order

We're going to talk about lawyers this afternoon, so sharpen the knives, drag out your favorite jokes, and don't forget to quote Shakespeare's line about killing them all. Get it out of your system, because we're not going to be talking about those lawyers. I actually harbor some sympathy for the ambulance chaser, the funeral crasher, even the slick huckster who appears on cable TV promising to turn your twisted ankle into a beach house in Malibu. Annoying they may be, but when that drunk in the Hummer broadsides you at three in the morning, you'll be glad you kept their business card. Some people sue over fast food coffee, others endure years of legal warfare to hold polluters accountable for the children they sicken. I'm more than happy to tolerate the first in order to bring satisfaction to the second.

"In the criminal justice system," says the voice-over guy, "the people are represented by two separate, yet equally important, groups." These are, of course, police officers and prosecutors, society's garbage collectors and the heroes of our current national narrative. To be a cop requires a fit body, a slow fuse, and a great deal of physical courage; to be a prosecutor requires a law degree.

It has not been a good summer for the nation's prosecutors. Alberto Gonzales' Justice Department was revealed to be a cesspool of corruption and cronyism where non-partisan integrity was a firing offense. A district attorney in North Carolina was humiliated and then defrocked for pursuing a rape case against four collegiate lacrosse players despite a wealth of exculpatory evidence, some of which he tried to sequester. In Jena, Louisiana, the parish D.A. exhibited a troubling enthusiasm for exploiting racial tensions after some nooses were found hanging from a tree at the local high school. And over in Georgia, prosecutors inexplicably fought for months to require a young man (black, if that matters, and it probably does) to spend the first ten years of his adulthood in the penitentiary because he had, as a seventeen year old, received sexual gratification from a classmate two years his junior.

It is important, of course, not to try to spin a few anecdotes into a sweeping indictment. First, it would contradict the argument I made just two posts below. Second, and more important, it would ignore the many noble public servants who keep us safe from wrongdoers, tirelessly pursue the perpetrators of Jim Crow-era hate crimes, and tell the president's henchman to pound sand when he demands that they time their activities to correspond with the electoral calendar.

Still, the list of ignoble prosecutions is growing to the point that it behooves us to wonder whether the problem is somehow built into the system. With the advent of DNA testing, we have now learned that a disturbing number of innocents, accused rapists mostly, have done the time without doing the crime. We can only wonder about the other men and women behind bars, convicted of offenses for which there is no relevant genetic evidence. Most of the mistakes are honest ones, but some make us wonder whether the bad guys are wearing coats and ties, rather than bright orange jumpsuits.

But that's not really the right way to look at it. Indeed, the difficulty here is that we are not, by and large, talking about bad people. Take, for example, Michael Nifong, the prosecutor in the Duke lacrosse case. Does anyone really believe that he woke up one morning and decided that he'd like to spend the next year or so trying to send innocent men to prison? Of course not. A young woman told police that she had been gang raped by several party goers. She was black; they were white. The lacrosse team had a reputation on campus for boorish behavior, and racial epithets were allegedly exchanged. Nifong was outraged. You would have been, too.

But you're not a prosecutor, and he was, and soon his zeal for justice intersected with his private self-interest in ways that would change several lives and ultimately ruin his own. Because of the media's obsession with wealth and race, the Duke case quickly went national, and Mike Nifong found himself, in late middle age, a sudden celebrity. He was the hero of his own reality show, and that fact very likely affected his judgment.

Meanwhile, what vanity didn't distort, ambition almost certainly did. District attorneys are elected officials, and Nifong had a re-election battle pending. Not only would his prosecution of the lacrosse players curry favor with African-American voters, it might also put him on the short list for higher office. Attorney General Nifong? Governor Nifong? Opportunities like this rarely happen twice, and must be seized with both hands.

Nifong's case is obviously exceptional. Most prosecutors will never have to decide if they can squeeze in Larry King between pre-trial hearings. But they still have egos and dreams. In this way, they are unexceptional among human beings, save for one important difference. Unlike the rest of us, prosecutors realize their ambitions by causing other people to forfeit their life, liberty, and property. Most of these people are guilty, but not all of them. The question is whether prosecutors can walk away from failing cases after investing their time, egos, and reputations. Mike Nifong couldn't. He's not the only one.

If there is any lesson we should take away from Injustice Summer '07, it is this: People are not guilty just because prosecutors say they are. So let's give Barry Bonds his day in court. O.J., too. And let's resolve never to forget the defendants who cannot afford expensive legal teams.

Prosecutors are people, just like you and me. That, in the end, may be the whole problem.