shared by Rick Stack with a brief word of explanation by Patrick H. Moore

Yesterday was an interesting day in the brief and sometimes stormy history of All Things Crime Blog. First, I want to thank Lise LaSalle for writing a courageous post in which she lays out the prosecutorial misconduct that she believes (and I agree with her) marred the Diane Downs case. I am happy to report that most readers who have commented on Lise’s post, whether or not they agree with her, have approached it in a fair, non-judgmental, and, in most cases, positive manner.

dianeCuriously, Lise’s post has set off a bit of a chain reaction and we received a fascinating comment from a reader named Gloria who writes:

“I read Ann Rule’s book and also believed that Diane Downs was guilty, but it is important to note that I read the book while in the California Penitentiary serving a sentence of 32-years-to- life for a crime that I did not commit. I was set up by an unscrupulous prosecutor who was prosecuted in 2007 by the Califonia State Bar for what he did to me. Over the years, I was told by other inmates who knew her that Diane Downs was innocent. Luckily for me, I was exonerated and freed by the 9th Circuit Court of Appeals, but Diane has not been so lucky…she should be released!”

I have asked Gloria to tell her story of wrongful conviction and ultimate exoneration in detail for our benefit, and hopefully she will agree to.

diane7Meanwhile, our resident legal expert, Rick Stack — a man who has worked as both a Federal prosecutor (AUSA) and a criminal defense attorney – has been good enough to provide us with the following commentary on the issue of prosecutorial misconduct followed by an inspiring message by former U.S. Attorney General, Supreme Court Justice and chief judge at the Nuremberg Tribunals, Robert H. Jackson.

Rick Stack writes:

“Gloria, I’m glad to hear that you were ultimately exonerated of the crime for which you were convicted, but sorry to hear that you were a victim of the criminal justice system. Have you received any recompense for your wrongful conviction and/or or been able to obtain a monetary recovery from the prosecutor? Unfortunately, too many prosecutors (and some defense counsel) cut corners and follow the “win at any cost” strategy in order to further their legal or judicial careers. Such behavior corrupts the criminal justice system and seriously undermines public confidence. It’s unfortunate that more prosecutors don’t follow the advice of former U.S. Attorney General Robert H. Jackson (who later was a Supreme Court Justice and chief judge at the Nuremberg Tribunals), as to the proper role of the federal prosecutor:”

Robert H. Jackson writes:

diane5. . . The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

* * * * * * * *

diane4Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. The lawyer in public office is justified in seeking to leave behind him a good record. But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance. Reputation has been called “the shadow cast by one’s daily life.” Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.

* * * * * * * *

diane6The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.


12 Responses to The Burning Need for Prosecutorial Fairplay: Inspiring Words by Former U.S. Supreme Court Justice Robert H. Jackson

  1. liselasalle says:

    Thank you for posting Patrick. I admire Rick Stack for his constant fairness and his wealth of knowledge.

    Jackson’s words should be posted in every courtroom and DA’s office in America. When the public hates a defendant or if a prosecutor wants to be popular and win a high profile case, the ethics often fly out the window.

    Many comments I received about the Diane Downs’case, stemmed from a deep hatred for the accused. People are tempted to applaud the efforts of the DA’s office at circumventing the law because they dislike her and ‘know’ she is guilty. After all, Ann Rule said so while filling her pockets with money. There was a Nancy Grace even back then but she had a typewriter instead of a microphone.

    Misconduct is never OK and Jackson wanted to be fair towards Nazi criminals as well as any other accused. He has to be applauded for his integrity.

    You cannot undermine and twist the criminal justice system in your favor if it suits your fancy.

    • Rick says:

      Great comment, Lise! Thanks for consistently sticking your neck out and standing up for the underdog, no matter how unpopular that may be. One of the most important functions of the criminal justice system is that the right of the defendant to a fair trial be zealously guarded and that prosecutors be called out onto the carpet if they engage in unethical behavior or utilize sharp trial tactics. Whenever the awesome prosecutorial power of the State is focused on an individual, his rights must be meticulously safeguarded, lest that power one day be improperly be loosed against you, me, or some other innocent person.

  2. Darcia Helle says:

    Excellent post, Patrick and Rick.

    I recently read a book called The Autobiography of an Execution by David R. Dow. The author is a death penalty lawyer, who works within the appeals process up until the moment a client is executed. Anyone who thinks our legal system is fair and just really needs to read that book. Fortunately, we do have some lawyers and judges willing to do what’s right, rather than what’s popular and expected.

    • PatrickHMoore says:

      This post, of course, is thanks to Rick. If you have time, Darcia, you might write a post in which you discuss David R. Dow.s book, perhaps hitting some of the most egregious examples of the inequities of our system as it pertains to the death penalty. I noticed that yesterday’s Arizona execution took 2 hours to murder the guy.

  3. Chris says:

    I lost any faith I had in the judicial system after Herrera v Collins.

    • Rick says:

      Chris – That’s a great case reference. For those not familiar with that case, decided in 1993, here’s a quick wiki blurb on it:

      Herrera v. Collins, 506 U.S. 390 (1993), is a case in which the Supreme Court of the United States (in a 6 to 3 decision) ruled that a claim that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of one who is actually innocent is not ground for federal habeas corpus relief.

      It sounds like you have some experience working in the DP abolition movement. I have a brother who heads Missourians Against the DP.

      I must say that I lost faith in the Supreme Court for the purpose of deciding political matters in 2000, after it stopped the vote-counting in Florida and issued Bush v. Gore, finding that counting all of the votes would violate the equal protection rights of George W. Bush. That decision really served the USA well, right? NOT

  4. Chris says:

    Thanks, Rick, for laying that out so succinctly. Having no legal background, I never would have been able to do that; I’m just an autodidact.

    Yes, Bush v Gore is definitely a stomach-turner.

    I miss Justice John Paul Stevens.

  5. Liysa says:

    Any system, in order to be objective and fair needs to have “checks and balances.” The current system is set up so that prosecutors have unchecked power and immunity from abuse of that power. This results in so many tragedies. Unfortunately too many sheep-like citizens feel that if a person is charged, they must be guilty, and stop any further thinking for themselves. DA’s bank on this mental lassitude and accrue power. The system needs to be overhauled.

    • katrina sargo says:

      You planned the murder of your husband and you think you’re the victim. I don’t believe your DV advocacy garbage for one minute. You have yet to tell those of us who ask, what about that computer with the evidence on it? What about those lies you told? Running blindly in the dark and just happened to make a great shot to Chris’ head.
      What a web we weave, when at first we practice to deceive. Think about that for a while.
      You’re a disgrace to real victims of domestic violence.

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