« The Fiduciary Theory of Article II | Main | A dramatic reading of the Mueller Report »

Thursday, June 13, 2019

The first thing we do, let's fire all the lawyers

The fallout from When They See Us, the Netflix series on the Central Park Five, continues.

Linda Fairstein, the attorney who led the DA's sex crimes unit, was dropped by her publisher and forced to resign from several boards, including the Board of Trustees of Vassar College. Elizabeth Lederer, the attorney and lead prosecutor, will not return as an adjunct at Columbia Law School, amid student protests and calls from the Black Law Students Association not to renew her contract. On the other hand, none of the police officers who engaged in the coercive questioning has been sanctioned in any way--none has been fired or lost current non-policing gigs. Nor have other top city or DA officials (if any are alive--former DA Robert Morganthau is still active at 99). And the prominent NYC citizen who took out a full-page ad calling for their execution? Well, we know where he is.

One conclusion is that, as lawyers, Fairstein and Lederer must be held to a higher standard. We expect cops to do whatever it takes to get a confession to clear a case. But we expect lawyers to be justice-seeking "Men for  All Seasons," stepping back from the heat and passion of the moment to cast a thoughtful and rational eye and to slam on the brakes when they spy injustice, such as improper police questioning. So when prosecutors barrel forward and do their best to represent their client, they are excoriated, and must be sanctioned, for being part of the problem in the criminal-justice machine barreling over communities of color. Of course, had either stood up at the time, they would have been excoriated for not supporting law enforcement, creating further rifts in an already-tenuous relationship between police and prosecutors.

Is there anything either could have done to avoid the fallout? Would it have been enough had each apologized and acknowledged that they had the wrong person but that they went forward with what they had in 1989? (Fairstein has dug in her heels, I am not sure what Lederer has said about the case or the exoneration). Is it enough to acknowledge mistakes? Or are both tainted by association with a racially charged wrongful conviction, such that neither she be allowed to continue in polite society or in the business of teaching law? To the extent any scorn might be heaped on Morganthau for allowing the prosecution to go forward, he says he his proud of the exoneration.

The obvious analogy is with the recent controversy over Harvard dismissing Ronald Sullivan as a res college dean (although not as a member of the HLS faculty) following student protests over his involvement in representing Harvey Weinstein. Those who defended Sullivan and criticized Harvard (and the students who pushed for Sullivan's dismissal) emphasized the Sixth Amendment and the need for lawyers to zealously represent the worst of the accused. The possible distinction is that prosecutors are supposed to have a different obligation--not to a client who enjoys certain constitutional rights, but to doing justice. But once prosecutors decide, in their best justice-directed judgment, that they have the right defendants, they are supposed to just as zealously represent their clients (in this case, the People of the State of New York). It seems perverse to punish a prosecutor, who considered justice but reached a good-faith conclusion, for being too good a lawyer. I am curious how people reconcile opposition to what Harvard did to Sullivan with what Columbia did with Lederer--is it the lack of contrition?

Finally, we should not overlook that the only people involved in the case from the government's side suffering any adverse professional or personal consequences are women. Not the man who supervised them or the men who mistreated the kids and coerced their confessions. And not the man who called for their execution. Make what you will of that.

Posted by Howard Wasserman on June 13, 2019 at 10:13 AM in Culture, Howard Wasserman, Law and Politics | Permalink

Comments

Howard writes, " Of course, had either stood up at the time, they would have been excoriated for not supporting law enforcement, creating further rifts in an already-tenuous relationship between police and prosecutors."

That's the way the cookie crumbles. Take this choice sentence from this recent opinion. "Defendant’s prosecution therefore additionally reflects the considered judgment of both the Attorney General and Commonwealth of Virginia that the statute’s scope neither exceeds Congress’s Commerce Clause authority nor interferes with the Commonwealth’s police power."

http://www.ca4.uscourts.gov/opinions/184660.P.pdf

(hat top, How Appealing".

So that's the issue. If the prosecution wants credibility and wants judges to cite to them based upon that credibility, that credibility cuts both ways. If the cost of maintaining one's professional credibility before the eyes of judges is losing credibility in the eyes of the police, this is an easy and obvious call: the lawyer is a member of the bar, not the police union.

So i won't feel sorry for these people, not in the slightest. They abandoned their professional responsibilities in order to further their own careers. The price they paid is too little, too late IMO.

Posted by: James | Jun 14, 2019 9:44:17 AM

Linda Fairstein presented herself as an avenging angel of the Lord, not a lawyer. She parlayed her position into some serious coin for herself. It is perhaps not unfair under those circumstances to suggest that she should have taken care not to use her charisma and prominence to prosecute innocent people, and, not incidentally, thereby leave the real perpetrator on the street to commit more rapes.

Posted by: Jack | Jun 14, 2019 12:52:05 AM

Just correcting it:

In my comment down there,should be rather:

" adversarial system " or judiciary , over "adversary".

Thanks

Posted by: El roam | Jun 13, 2019 12:04:37 PM

Very interesting, by the way, Meili ( the Central Park Jogger) claimed, that:

" She doubts Reyes acted alone and there is still more information about the crime that hasn't come to light "

But not to forget, the justice system in the US is adversary one. That is to say, that each party is independently doing its best, to dig evidence and form strategy. Justice is rendered by balancing and consolidating, each side strategy and assertion finally. That is to say, that:

A lawyer, and one prosecutor, are not seeking truth. The one who seeks truth, is the police officer. He must look for the real suspect, the real perpetrator ( theoretically, ethically ). The prosecutor on the other hand, looks or observe the sufficiency of evidence for conviction. The balance is done by the judge ( balancing both subjective sides ) yet:

Theoretically, he doesn't care about the truth. But, whether with the evidences presented to him, he must exonerate or convict. Yet:

He must prevail. He can't avoid it. He can't claim that it is not sufficient for reaching the truth. In advance, the system is designated for having relative truth or evidences.The judge can't dig nothing beyond what is presented to him.

So, police officer is the only one in fact, who must stick to the truth, and solely the truth, as in real life. He must look for the real perpetrator, notwithstanding sufficiency of evidences.

Thanks

Posted by: El roam | Jun 13, 2019 11:58:44 AM

Post a comment