The U.S. Supreme Court on the Prosecutor: .."while he may strike hard blows, he is not at liberty to strike foul ones"

H. Morley Swingle is the prosecuting attorney for Cape Girardeau County, Missouri, and while I know nothing about him, nonetheless he has impressed me with what he has on his website. In laying out what he says is the "role of the prosecutor," Swingle writes:

Robert H. Jackson, later a U.S. Supreme Court Justice and the lead prosecutor of the Nazi war criminals at the Nuremberg trials, said in 1940 as U.S. Attorney General in a speech to federal prosecutors: "The prosecutor has more control over life, liberty, and reputation than any other person in America." While this may be something of an overstatement, prosecutors need always remember that even the filing of a charge can do serious damage to a person’s life. The prosecutor must make sure that he prosecutes only the guilty and that he does so fairly.

No one, especially a prosecutor, wants an innocent person to go to jail or suffer injustice.

The role of the prosecutor to do justice is emphasized in the ethical canons for prosecutors. These ethical canons differ significantly from those for defense lawyers.

A defense lawyer is required to represent his client "zealously within the bounds of the law." While he is not allowed to knowingly present perjured testimony, he does not need to disclose damning information he knows about his client to the prosecutor, the judge or the jury. He may argue innocence, even when he knows his client is guilty. The defense attorney’s role is to be a hired gun for his client, to get him off if he can, or to get him as little punishment as possible if he can’t get him off entirely.

The prosecutor, on the other hand, is obligated to seek justice. (emphasis mine) The National Prosecution Standards published by the National District Attorneys Association state quite clearly: "The primary responsibility of prosecution is to see that justice is accomplished." The American Bar Association Standards for Prosecutors put it even more succinctly: "The duty of the prosecutor is to seek justice, not merely to convict."

He goes on:

All prosecutors at my office know that if we develop a reasonable doubt about a person’s guilt, our duty is to dismiss the case rather than go forward with the prosecution. As Justice Jackson said in his 1940 speech: "[A] spirit of fair play and decency . . . 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."

On the wall of my office I have hung a framed quotation from George Sutherland, another U.S. Supreme Court Justice. He described the role of the prosecutor in these words: "The [Prosecuting] Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

Justice Sutherland’s reminder that the prosecutor should strike hard blows but fair ones captures the essence of the role of the prosecutor. The prosecutor should strike hard blows by being an excellent trial lawyer who will never lose a case because of incompetence or lack of preparation. Yet, he will always strike fair blows by making sure he has provided the defense with all of the facts in the case, both those that support the guilt of the defendant and those that might tend to suggest innocence, and by refusing to resort to cheap tricks or unfair tactics to win a case. (emphasis mine)

Compare these words to what Chris Arnt and Len Gregor -- with the enthusiastic encouragement from Judge Brian House -- have done in the Tonya Craft trial. From suborning perjury (yes, Suzi Thorne and Joal Henke committed perjury) to having part of Dr. Ann Hazzard's testimony disallowed on "hearsay" ground, even though most of the prosecution's testimony is based upon hearsay, these two bullies (I cannot call them "men," anymore) have managed to destroy any notion that courts in the Lookout Mountain Judicial District are even capable of producing a fair trial. Their cheap antics yesterday with Dr. Hazzard only reinforce the point that everything in their bones goes against the very just and sound statements that others in their line of work have made.

Furthermore, because House's rulings have been so contradictory -- permitting the prosecutors to run wild ONE CAMERA while attacking the defense at every turn (including an infamous on-camera recording in which he disparages Ms. Craft's counsel) -- House has made it known to the world that the Lookout Mountain Judicial District is utterly lawless, at least in its courtrooms. No doubt, judges like Ralph van Pelt and others are going to have to work much, much harder in the future if they wish to keep any credibility at all, thanks to the destruction of justice by House and the Dishonest Duo, a.k.a. Facebook and The Man.

While Arnt and Gregor may think that the other prosecutors in Georgia have their backs, I need to remind them that Mike Nifong thought that, too. For a while, that was true, as North Carolina's prosecutors gave public statements supporting Nifong, letting him know that they were behind him.

In the end, however, after Nifong's antics and lawbreaking were well-publicized, the prosecutors continued to stand behind him: they attended his "hanging." They had no choice but to throw him under the bus, as the public anger against Nifong was threatening to spread against all of the prosecutors in that state.

Likewise, as the evidence against Arnt and Gregor mounts, and as more and more prosecutors and judges and attorneys in Georgia view their handiwork, you will see a lot of former "supporters" run for cover. THAT I can guarantee.

American prosecutors over the years have shown an ugly side that is antithetical to justice, and they even have a very dark saying: "Any prosecutor can convict a guilty man. It takes a GREAT prosecutor to convict an innocent man."

My sense is that Arnt and Gregor want us to think that they are "great" prosecutors. They are not. I believe that they are bullies and liars who have been given protection in a court where the judge shows absolutely no sense of fairness and decency and who proudly tells the world that he has sided with the prosecution and is doing everything in his power to rig a conviction.