Separation Of Powers? (Update)

Forget about it.  Wrongful convictions are not the responsibility of the judicial branch that perpetrates them; they’re the responsibility of the executive branch that seeks them.

That’s the underlying reality being implicitly acknowledged with this latest initiative in New York State, the Attorney General establishing a “wrongful convictions bureau” to determine this and that and to “streamline” this and that.

I suppose it’s a good thing that someone is doing something.  It’s too bad that it’s the result of the abject failure of the entire apparatus – indeed, an entire branch of the government – that is already in place, the key players of which are….judges.

With this initiative by the AG, laudable though it may be in its way, judges are further absolved of their responsibilities to preside over fair, accurate and constitutional proceedings.  Imagine how this works out bureaucratically, too:  the judicial mind can now tell itself that if there was really any there there, why the wrongful convictions task force/bureau/committee/division/cabal/ministry would be all over it, so if it’s just some miserable little criminal defense lawyer complaining, all by himself, there is no need to pay attention, to read anything, to evaluate any evidence.  To think.

Too hard.  Let the AG handle it.

So increasingly the defense lawyer’s job is not to independently evaluate and advocate before a neutral tribunal; no, his job is to lobby the DA and the AG, maybe horse trade this client for that client or for favors down the line, or maybe even a job in the wrongful convictions bureau itself.  But his existence, qua defense lawyer, has just become increasingly marginal, when the marginalization of defense lawyers is a big part of the problem to begin with.

We no longer even pretend to expect justice out of our justice system.  We are reduced to serfs, pleading for mercy, or a favor, or an accommodation.  That’s more pragmatic, more realistic, than expecting anything from our robed imposters other than meaningless bloviating and bad golf games.

I wish I could say I was happy about this, but the truth is I just find it depressing.

Update:  You can count on the New York Times to run with the officially approved narrative:  defense lawyers are scum.  Anecdotes like these point to the question raised by this post:  have the powers of the legal profession decided that the adversarial process no longer works, at least partly if not chiefly because defense lawyers are irrelevant or worse?  Are defendants better off representing themselves, even in capital cases?

And if that’s true, do we really need courts and lawyers and judges at all?

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Filed under financial crisis, Judicial lying/cheating, Striking lawyers, wrongful convictions

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