Medea, Clarence Thomas and prosecutorial bloodlust
Just when you thought the ugliness surrounding the prosecution of Casey Anthony could not get any worse, it does. The hint, of course, should have been that Nancy Grace was all over the case from the beginning like a dung beetle. But the fact that a cable network puts on a former prosecutor to spew lunatic, unfounded sentiments either to demonstrate why she is not currently employed as a prosecutor or to work out her inner demons is not the final disgrace of this sordid prosecution.
There is now substantial evidence to lead to the suspicion that the prosecutor violated a fundamental rule of criminal procedure. The New York Times reports that prosecution “expert witness” John Brady had recanted his testimony the defendant had performed a computer search for the term “chloroform” 84 times. And, he says, he told the prosecutors by email that his software had lead him to an erroneous conclusion, well before the end of the trial. This information, of course, is substantially exculpatory (because it tends to negative the prosecution’s theory of motive). Under well established precedent, not yet repealed by our right-wing Supreme Court, the prosecutor is under a constitutional duty to advise the defense of this new information. They did not. Even after the trial.
Now, we have yet to learn the full facts, but the prosecutors have a very strange explanation and the witness, John Brady, took down from his web-site the allegations, after it became clear what a firestorm would descend on the prosecutors if this were pursued as it ought to be. I’ll let you read the dubious explanation of the prosecutors for yourself. I wonder how many times the prosecutors did a Google search for “Brady violation” today. Their explanation also omits to explain, why they thought it in the public interest to continue vilifying the defendant after the not guilty verdict, but not in the public interest to learn of this exculpatory information.
I don’t mean to argue one way or the other the outcome of the case, although it seems clear to me, given their undignified interviews since the verdict that the prosecutors were not merely attempting to achieve dispassionate justice. Assistant State Attorney Jeff Ashton said on national television the next morning that the prosectors thought all they had to do was put the picture of the dead child before the jury. “‘This was a case where we honestly felt that if the jury saw what we saw,’ then the result would be a guilty verdict, Ashton said.” This from a man who not only went to law school, but also presumably passed Criminal Procedure, Constitutional Law and Evidence. And on top of that was under the obligation, constitutional and moral, not simply to achieve a conviction by any means, but rather to see that justice was done, including justice to the defendant.
If the allegations that seem all-to-credible are true, the prosecutors would be, in any civilized society, prosecuted. Because they were attempting judicial murder since they were seeking the death penalty on circumstantial evidence, a substantial part of which they knew was false.
But of course nothing will come of it. Ashton will join the rest of the corrupt celebrity prosecutors as a legal commentator somewhere on the vast wasteland of television.
Why should he fear? Didn’t the Supreme Court, per Justice Thomas, signal in the case Connick v. Thompson, 09–571 (March 29, 2011) (slip opinion), that whatever cynical maneuver is required, it will undergo it to ensure a corrupt prosecutor will not be forced to pay for suborning perjury or hiding evidence just to get a conviction? Clarence Thomas doesn’t say much (outside speeches to rightwing groups), but he is the reliable gift George H.W. Bush gave to reactionaries. And of course when you appoint a cynical reactionary to the bench, you have to signal that you know that you are doing it, and so Bush announced when nominating him that Thomas was the “best qualified [nominee] at this time.” Just a year before, Bush had declined to nominate him because he had no experience.
(Incidentally, for those interested in the history of jurisprudence, the first law of the Code of Hammurabi provides that if the person brining a capital charge testifies falsely “iddak”: “he shall be executed.” We have greatly improved on that. The person accused of a capital crime is put to death under any circumstances. The prosecutor and his witnesses go free.)
But why complain? The Court is ripping down constitutional protections (except for money=speech and guns) right and … further right. Don’t prosecutors normally act responsibly? Surely they don’t concoct evidence in accordance with popular blood lust usually, do they?
Well, it seems that in connection with cases involving infant deaths, prosecutors (like the public at large) tend to believe that the mother is responsible in an alarming number of cases, even when there is a more plausible innocent explanation. If I were a professional or trained feminist I could probably explain why the social pressures on a modern prosecutor makes him (or her, who usually is more aggressive, witness Nancy Grace) believe that women are Medeas. Not all of them, of course. Some are married to prosecutors and some work for them. But the single mothers. The ones who live with men they aren’t married to. They are all on the verge of killing their children at the drop of a hat, or after 84 Google searches. If only we doubters could see what the prosecutors do, as Jeff Ashton would put it.
It just so happens that a common law jurisdiction, Ontario, has been through this experience and decided to study it. (Yes, one can do something about a legal problem other than erect ridiculous legal exemptions for the powerful. I say that, however, not being the best qualified person to carry on the Bush legal tradition.) Stephen Goudge, a justice on Ontario’s Court of Appeal, no Thomas he, conducted an inquiry into the prosecutions of mothers charged with killing their children and concluded that overly zealous prosecutors using an unqualified forensic pediatrician obtained verdicts of guilty in a number cases where the mother was innocent. And, just like in our case, the mothers were generally single and accused of seeking sex and the high life, which their baby prevented them from achieving. One wonders how the mind of a prosecutor operates. Maybe time in the job causes them to think the absolute worst of everyone. Maybe they project on others what they would think themselves. Maybe the very worst of people select themselves for the job. Just like people who like going through others’ underwear apply for jobs with customs, people who want to punish others based on their own prejudices apply to become prosecutors. In any event, you can read (or listen) to NPR’s report on the results of this inquiry. We’d never be bothered with that kind of inquiry because a lethal injection is the best way to make the public forget about a miscarriage of justice. (Or, if there are still lingering questions, just obstruct the inquiry as Governor Rick Perry has demonstrated.)
Prosectors are also shielded because they can whip up public frenzy when it comes to accused mothers. Anyone seeing the frothing mouths of protestors at the non-guilty verdict realizes that no prosecutor need worry if he goes overboard in trying to lethally inject a single mother. The common law developed over centuries to prevent these kinds of miscarriages. But in cases where the authorities ride a wave of hate none of those protections provide any barrier. And we live in a time when our rulers have decided that all those protections have gotten in the way of their authoritarian rules. So we now best trust our betters.