Gideon ()

First Judge Michael Sheldon of the Connecticut Appellate Court called it “a deliberate pattern of improper conduct” in State v. Santiago. Then, in another reference to prosecutorial misconduct, a Fourth Circuit opinion in U.S. v. Bartko pleaded “whatever it takes, this behavior must stop.” And Chief Judge Alex Kozinski of the Ninth Circuit started a blistering dissent in U.S. v. Olsen with the following: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

Yet when South Carolina Supreme Court Justice Donald Beatty warned prosecutors that they had “been getting away with too much for too long” and that the South Carolina Supreme Court would “no longer overlook unethical conduct such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence,” and cautioned that prosecutors’ “bar licenses will be in jeopardy,” the main prosecuting authority in South Carolina—the attorney general—threatened to move to recuse Beatty in all criminal cases, citing bias.

The only distinction between the statements is that while Sheldon and Kozinski wrote their warnings in judicial opinions, Beatty made his remarks at a conference of prosecutors. And for that, his remarks have been characterized as “threatening” and “confrontational.”

While no one—certainly not a judge—should threaten disciplinary action lightly, does anyone else think that the attorney general doth protest too much?

It is undeniable that violations of Brady v. Maryland are a problem in the American justice system. Some would argue that suppression of exculpatory and impeachment evidence has been a commonly employed tactic since before Brady and that Brady was no solution and others might argue that the habit is taking on epidemic proportions in recent years, but no one could credibly state that the system is always fair and on a level playing field.

Having acknowledged this problem, there are but two solutions: 1) prosecutors get better at policing themselves and 2) judges get more willing to name the offending prosecutors and reverse convictions. Neither one of those is an undesirable tact to take and can only enhance confidence in the system. As a recent editorial in the Law Tribune stated: “When a criminal trial is conducted competently and fairly, an acquittal for a defendant is not a loss for the prosecutor, it’s a victory. It’s an example of the system operating as it was designed.”

Why, then, is it so inappropriate for Justice Beatty to remind stewards of justice that their charge includes not only securing convictions, but also maintaining the integrity of the criminal justice system? What is so particularly offensive about the justice making his opinion known? Certainly no one would argue that there are two competing opinions to be had here; there is no pro-suppression of exculpatory evidence lobby. So is it merely the petulance of being chided in public?

This isn’t an unusual occurrence, however. Prosecutors in San Diego have long used a state law to “disqualify” pro-defense judges. Just a few months ago, they boycotted a superior court judge because he issued a few too many rulings upholding the Fourth Amendment, in favor of defendants. They claim that these statements and rulings evince an underlying bias that these judges have, making them unfit to be neutral and detached magistrates in criminal court.

So the picture that emerges from these incidents is not a particularly desirable one. It exposes an ugly underbelly of the criminal justice system, in that it reveals to us people who believe justice is a game and they must win at all costs. It reveals to us people who have debased our core principles, instead assigning to them the much-maligned and misunderstood label of “technicalities.”

In these days when the media and the masses equate every arrest with guilt and every acquittal with a mistaken jury and a technicality in the law, these incidents show that some prosecutors aren’t above playing to these base sentiments, or worse, actually believe these very things.

Why else would a judge who sides with a defendant and his Fourth Amendment rights be unfit to sit in criminal court? Why else would it be grounds to disqualify a judge for reminding prosecutors of their ethical obligation?

Justice Beatty’s remarks are troubling, but not for the reasons the attorney general of South Carolina thinks. They’re troubling because they reveal that prosecutors there engage in witness tampering, retaliatory and selective prosecutions and even perjury. They’re troubling because they reveal that perhaps the South Carolina Supreme Court has been aware of this unethical conduct but has heretofore turned a blind eye to it (“no longer overlook…”). They’re troubling because they reveal that justice in South Carolina isn’t what justice should be and some want to keep it that way.•