How’s this for an inadvertently revealing quote from Kathleen Rice‘s screed:
The evidence Schechter uses to support his sweeping indictment of an entire profession is a single case involving one prosecutor.
While Schechter, of course, may have made a “sweeping indictment” it was not directed at “…an entire profession”. It was directed at prosecutors who, last time I checked, were only part of the legal profession.
Apparently prosecutors do not – in their heart of hearts, as the saying goes – consider their opposing counsel part of the same profession. And since judges are drawn chiefly from the ranks of prosecutors, it’s a fair inference that they feel the same way.
This certainly would explain a lot of things.
If defense lawyers are to be relegated to some lesser status by prosecutors and judges, I would make two observations: first, since prosecutors and judges have vastly more raw power they can effectively do it if they want to; and second, this should be made as explicit and widely known as possible, so that we can stop pretending that our justice system is committed to equal and even handed treatment of litigants in an adversary process.
Indeed, the two-tier nature of our justice system is being explicitly acknowledged in whispered tones by its primary beneficiaries, and noted in some professional quarters, even as hoi polloi are concluding the same thing in a less sophisticated fashion and increasingly taking to the streets to protest this and that.
Another chapter in the breakdown of the Rule of Law, in other words.
The role of judges in this catastrophe – and it is a catastrophe right now, although these things play out slowly – is primary. The problem is not that they are inappropriately loyal to the upper tier to whom, after all, they owe their positions. For that has always been the case and is the reason juries exist, as has been pointed out on this blog many times. Like many important institutions in other contexts, though, there are limits: juries can function as a check on judicial imperfection, but if judicial imperfection degenerates into ossified favoritism or worse, even juries will not matter eventually.
The problem, then, is that one-sided judicial fealty is at this point completely unchecked. This is reflected in the “new rule“, whereby judicial deference to prosecutors and obliviousness to the evidence and arguments of defense lawyers has become all but codified. The upshot of the “new rule” in application will be: judges will give no consideration to defense evidence of innocence unless the prosecutor signs on first.
A defense lawyer, in other words, is regarded by the judiciary as little more than a lobbyist paid by their clients to supplicate the prosecutor and beg favors. This is an intolerable state of affairs for a free society.
But it fits right in with an insufferable tyranny.