This whole discussion has been a bit overwhelming because there's a sense that we're powerless in the face of a system that is so entrenched, but I've walked away feeling two things: (1) we should tell juries about their right to nullify, which more broadly means fundamentally changing the way we think of them (moving from fact finders to checks on power, (2) If you want to make real change, you need to work to elect people who share your values. It is true that low level people ultimately have very little decision-making but those at the top have significant discretion, and fundamental change requires changing leadership
I'm now alarmed, because (as Professor Nesson mentioned), none of us even thought to leave the moral question to the jury. Is that because none of us implicitly trust the jury? We think it's a sham institution, where merely encompasses the most base instinct of human beings. Prone to bias, illogical reasoning, and peer pressure. And yet the legitimacy of our courts and the sovereignty our entire nation is based on the collective power of these people. That's a pretty ugly idea. If we can't trust a jury, what sort of nation are we? Why are we trying to keep the system duck-taped together through reform of elite action, rather than concentrating on the presumed apathy, or worse, moral bankruptcy, of our citizenry?
The discussion today made me reflect on how little trust I think I actually have in jurors to do justice. I'm glad that the Fisher case resulted in a not guilty verdict, but far more often the jury does just follow the direction of the prosecutor. Because of this I think that it is critical that people do take a more active role if they believe that an unjust outcome might result. I will never become a prosecutor. However, at the same time I do understand the reform prosecutorial movement and respect it. I am in agreement with class members that withdrawal from the case would not have solved the problem other making Fisher feel better about not having played a role. But in the end the same unjust still would have occurred. To me, he had a greater responsibility than just withdrawing.
I think that it would be impossible to be proud of myself twenty years from now if I leave HLS and became part of the existing system in the ways we discussed this morning. I am not convinced by the “progressive prosecutor” trend, and I do not feel sorry for George or others like him. I’m glad he lost the case, but that is a pretty unlikely scenario. A different jury or a slightly less sympathetic defendant and he would have ruined someone’s life because he works in a job where his purpose is to put human beings in cages. I could never, under any circumstances, be proud of that.
I do think that the system is fixable. While the jury system has its flaws, the greater problem is overcriminalizing and unnecessarily harsh punishments for certain crimes. These changes can really only come from elections and reforming the system via new laws, and we can't expect much if we only rely on telling jurors about nullification.
Lack of moral certainty is inevitable in the legal field. Prosecutors will sometimes not want to prosecute. Defense attorneys will sometimes have to take a step back when they realize that a criminal defendant did exactly what he is accused of. However, regardless of this moral uncertainty, trials and plea bargaining continue. The system moves. If we're talking about prosecutors, I'm not convinced that one can maintain their morality while effectively doing one's job. I don't know if it's possible in the adversarial system, where one is trying to win. We often talk about "justice" in these cases. However, justice in my mind implies truth. Some prosecutors don't seek the truth. Some don't seek moral culpability when deciding how to charge a case. Some do. They must. I'm not certain. My first inclination is that there can be no justice in this system as it exists today. It's difficult to work within a system that isn't designed to produce justice.
It seems daunting, yes. Overwhelming, not necessarily. If the jury instructions were changed - there would be room for conscious. If negligence definitions were changed in criminal statutes to require a slightly more demanding standard both prosecutors and juries would have a buffer that allows leeway for humanity to slip into the process. With discretion comes bias and institutional oppression. I don't know what the answer is but my instinct tells me it's some combination of additional leeway and a robust public defenders advocacy. If there is enough leeway in the rules (mentioned above or others) that allow adequate leeway to avoid blatant miscarriages of justice and there are public defenders looking to highlight this discretion to either prosecutors, judges or juries I feel we'll be closer to serving justice more often.
More than anything, this discussion made me realize how little I trust juries. As mentioned above, I think the most important thing we can do as individuals is to spread the word about jury nullification.
Courage rarely directs us to the clean path. It's courage that keeps you in the space that demands you make tough decisions every day, knowing some of your choices will bring you regret. Life is messy. Criminal Justice is an inherent grapple with this messiness. To separate yourself from the pursuit of justice for fear of being complicit is not the brave choice. Be the best advocate you can be. Sometimes that means going against your morals in a given scenario, so that you can remain in a position to advocate for what you believe in the next time. This also applies to Fern's underlings. If the worst criminals stop getting zealous defenses, the line of who gets defended will continue to creep up until anyone seemingly morally repugnant cannot find themselves a lawyer.
Before accepting a job to work at a prosecutor’s office, a young lawyer should recognize that she, at times, may disagree with demands of her boss. Indeed, she may, at times, find her boss’s outlook morally repugnant. In such cases, the young prosecutor should feel free to find ways to remove herself from the situation or to convince her boss not to pursue prosecution. However, if either option proves unsuccessful, she should either resign in recognition that she does not have the appetite for working within the system in place (and perhaps advocate for a new DA) or dutifully go forth with the prosecution in hopes of one day garnering the clout to more significantly influence which cases are and are not prosecuted.
I think it's neither impossible nor unrealistic. It's our responsibility as lawyers. Whether you are on the defense or the prosecution side you will be faced with difficult moral and professional conflicts. In a way, it's what we signed up for when we came to law school. I think that along with that difficulty comes a responsibility to stand up for the moral and legal "right." If you have no choice but to prosecute a case that you think is unjust, then just passing it on to the next guy will yield nothing but a system filled with "yes" men who go along with the flow. It's imperative that we have individuals who seek to challenge the status quo. If a prosecutor does not believe a certain individual deserves to be convicted, then there are several avenues: not challenging impaneling a jury that is favorable to the defendants, presenting the facts in a way that is compassionate and not slanted, and favoring instructions that are not conviction biased. If everyone who believes that we should be compassionate to defendants and not aggressively prosecute every crime quits, then we will be left with a very one-sided biased system. Furthermore, because prosecutors' offices are a pipeline to positions of political power, we will also never achieve the systemic change necessary for justice. Thus I think we have several responsibilities: 1) not quit when the going gets tough; 2) whether you work in a prosecutors or defense office, work in a way that is in line in morality, presenting the facts and empaneling the jury in a way that is consistent with justice; 3) pursue systemic change in the areas we see fit -- whether that is decriminalizing certain acts, seeking ways to create more diverse and representative juries, or pursuing lower charges.
I think in our adversarial system, it is nearly inevitable that one day a lawyer will be assigned to a case that they would rather not take, and will have to represent an interest that they'd prefer not to represent. A good lawyer's conscience will never be completely clear. I think the answer is for lawyers to choose a line of work that they generally will not have moral objections to, rather than undermining the adversarial system based on personal whims. And in those few cases where the lawyer has a moral objection, the lawyer can either ask to be reassigned or accept the decision of her supervisor and pursue a vigorous representation. Doing so will require making difficult decisions with implications for both career and conscience, but that is the nature of the lawyer's craft in our system.
At the outset I think it's important to pick a career that aligns with your values - if you don't believe in prosecution then don't become a prosecutor.
Presumably, George became a prosecutor because he believed that fighting crime and protecting the rights of both past and future victims is a just cause.
Within that framework I think you need to maintain your personal conscience, of course, but also possess the appropriate level of humility to realize that things may not always be as clear cut as they seem to you.
It strikes me that following a six minute presentation all of us in the room unquestionably believe the defendant's account. Is this how justice ought to be determined? Is it not at least possible that she was indeed negligent, or was indeed drunk?
An elderly person with no money, no friends, no family, spent his last moments desperately waving his cane to try to be noticed and spared. Perhaps he was just the unfortunate victim of inevitable circumstance. But are we *sure?* Just because he has nobody to advocate for him, and nobody who will miss him now that he is gone, does that mean that the system should not give him a voice? Should not at least go through the process to make sure that what seems to be the case, indeed is?
@Sateda I don't know that our thought to not leave this up to the jury means that we necessarily believe juries are a sham institution. I think individuals are prone to be self-centered in a sense. We see the problem as our individual responsibility and as resting on our shoulders. If the jury works properly and we seek to impanel diverse and representative juries then we should be achieving just outcomes.
@Sateda -- I think the issue is that jurors are people. They come with their own biases. I attempted to find the statistic in class but couldn't. If I'm remembering correctly, nearly 85% of murder trials result in a guilty verdict. That can mean one of two things, most people accused of murder committed murder (I don't believe it) or that jurors might be led to think so because of the horrific facts often associated with murder cases. I'd also imagine that the 15% not found guilty are mostly white men and the victims are either women or people of color. I don't think the jury will protect me (especially as it exists now) as a Black person.
I thought this was a very engaging discussion on a difficult issue - what is the prosecutor to do when faced with a case he does not think he should prosecute and a boss who takes a contrary view? In my view, the tension which underlies this is between having a healthy respect for the institution and the views of others, and your own conscience and convictions. The two are not irreconcilable. I think you do justice to your own conscience and convictions by doing your best to persuade your boss to see your position. But in doing so, you must respect his office, his experience and that he can have a different judgment of the facts - this is why, speaking for myself, I would not contemplate going above his head. And once the decision has been made after full deliberation with the boss, I would prosecute the case to the best of my abilities because, at all times, it is important to remember that I am not acting for myself, but representing an entire institution. The point at which I might quit is when there is a sense that I feel disrespected by the institution. This is the point when I feel that my views no longer carry any weight, or are no longer being taken seriously. In short, the point is that each prosecutor has a voice and should, especially on issues that he feels deeply conflicted about, make it be heard as loudly as he can (in a respectful way of course). But once he feels that his voice is no longer heard, that may be the time to move on.
@Centaurus A: Do you think the reason we don't trust juries is because we think they're susceptible to prosecutorial/judicial manipulation, or is it more that the values of citizens on the jury are gross (biased against minorities; unnecessarily retributive; lazy in their role; etc).
Prosecutorial discretion should be used to halt prosecutions where the prosecution has insufficient evidence to proceed, not to eliminate substantive areas of the law. Failure to punish crime as prescribed by society fails to hold legislatures to account for their over-criminalization and leaves certain people the victim of a system which punishes unjustly. We must make sure our voices are heard at the ballot box and in the halls of our state legislatures. When only crimes of harm are prosecuted, it will be easier to hold prosecutors to account to prosecute all crimes that come before them with sufficient evidence.
This discussion I found to leave me more demoralized about the ability to change the system than I did walking in. It actually did not occur to me that the prosecutor gets approval before making deals or may be second-seated in a case in which the prosecutor decides to half-heartedly try a case due to moral concerns. I had always assumed that those were last-attempt options for a prosecutor to bridge the gap between keeping their jobs and acting in a way that they see as just, at least sometimes. To be fair, this places a burden on the often-overloaded defense to be a better lawyer than the prosecutor and thus frees the prosecutor morally although the prosecutor took the easy way out. I think that, in a system in which the prosecution is an incredibly problematic institution, the jury is that check that we need and that we have. We should tell juries of their power to nullify. I disagree with one point that elections will create permanent change. While electing a new DA can certainly help with a lot, given that they can direct that certain crimes will not be prosecuted, there are limits to how much change they can make and be "electable"; I also think that there is fundamentally a limit to how progressive a person can be and succeed in this field. Because the DA brings in with them a slate of initiatives and foci, the change is not at all permanent but temporary, even to the extent change is made. I feel less sure about the solution now than at the beginning of class, but at least I feel like I have more things to consider. The boss conversation exercise was to me very interesting, and a creative way of putting to the test some of the solutions that we throw out that we may not actually think about practically.
It's not impossible for the criminal legal system to reform in reaction to broadly-shared social values. We've seen it happen many times. But I doubt that the values in this classroom, at HLS, or at elite law schools are broadly shared. These are halls of tremendous privilege, populated by students that have lived radically different lives from most members of society (whether through wealth, power, supportive families, intense/formative/unusual struggles, abiding passions and purposes). Students here usually have quite refined, particular moral sensibilities, often shaped by a supportive family, and a life often free from crime or the fear of crime. This upbringing lends itself to feelings of compassion and forgiveness, particularly when students implicitly feel themselves superior to the actors involved in a given crime. Students tend to be quick to pity wrongdoers because they see that society was the initial wrongdoer in the chain of causation. Most people, however, have not had these experiences. They do not have the same moral sensibilities that come from these experiences. They seek safety and retribution for wrongdoing, not forgiveness. They feel they have suffered from crimes in the past and do not find it unjust that others will suffer for committing crimes. We sit here, wringing our hands over the most blatant examples of injustice and strategizing over how to change the system in reaction to these examples. But I doubt most people have the interest or the will to change the system. I think most people in the room recognize this, given how much time we devote to discussion of how we can obfuscate our actions in order to reach a result we think is just. We have a pretty bad system, but I think most people believe that it works well enough. Perhaps there will continue to be incremental change (sentencing reform, etc), but there likely is not the will for fundamental change outside of places like HLS.
The win win situation here seems to be along the lines someone raised in class: namely, find a way to focus your attention on cases where the criminality is more egregious. In practice, maybe that means that you try to have your co-workers who are working on the ax-murder case go to the boss and request further assistance on that assignment - so that the boss now must choose whether to leave you on the apparently innocent car crash, or deploy you where there is a much more obvious need.
If successful this approach both diverts resources away from Ds who are likely innocent (win for pro-defense orientation) and concentrates them on fighting really blatant injustices (win for pro-prosecution orientation)
This whole discussion concerns me because people seem to want to have their own ambitions trump their morality. Yes there is room for compromise and reconciliation but we have to be weary of the price. That Professor can complain about his decision all he wants, but the fact is that he is a high profile professor and that woman and possibly her kids’ lives were destroyed. We can try to justify it saying we’re changing the system but the road to Hell is paved with good intentions. HLS is great at getting us to suppress our values for our own gain but the fact is that all real change has come from people willing to take a stand. Kamala Harris allegedly made her harsh prosecutor decisions so she could win higher office and help more people, what about the people her decision oppressed? Henry Clay saved slavery under the guise of a “humane compromise.” The Clintons compromised on the crime bill so they could win Re-election and do more liberal stuff, but it has exhasterbated our issues. We are given a tremendous amount of wealth and privilege by being here. If we keep doing the wrong thing in pursuit of an elusive opportunity or position, we are helping destroy the world and oppressing people. No amount of pro bono hours or checks to the ACLU can make up for that. I know whole partners at law firms have told you otherwise, but sorry they’re wrong.
I think that the system can be made more just. Jury nullification, plea bargain reforms, etc. are all good ideas. Do I think any of it will be adopted? Unlikely. The criminal punishment system bears down almost exclusively on the disempowered and disenfranchised. Because those in privileged and powerful positions--like many of the people in this room--will don't feel the corrosive effects of the criminal punishment system, there's not much incentive for change.
Spiders shining darkly in moon's light, spiders wandering slowly into the night, spiders in the sky and in your hair. (Spiders sitting on gossamer strands with the delicate poise of one who does not need to understand but merely wait. You feel their breath gently tickling your face, and it feels light laughter.) Spiders in your heart and in your lungs and crawling into your mouth, tickling the back of your tongue. Tiny. Delicate. Small, but large with meaning. Spiders slowly glowing bright, in the sky, and floating out into space. Their arms grow long, and hug the earth, around the moon, and become the sky.
I think it’s the symbol of the injustices in the world. Each one is largely not noticeable, particularly to people of privilege like us, however as each one builds up and causes larger problems that we cannot ignore and start to effect us. If we had paid attention initially, we would not have the broader problems and all the victims would not be victims.
A thought: Spider derives from a word meaning "to spin." Spiders are those who know how to put "spin" on things (relevant for our purposes: legal narratives). If you don't look carefully you don't realize they're doing it. But they will catch you in the web.
Spiders are feared by many they are useful members of our ecosystem but are despised by many. The author transforms them into something poetic, noble, beautiful. Perhaps this has the greater meaning of symbolizing that our greatest fears can sometimes be beautiful they can be not only our areas of vulnerability, but what spurs us forward to be better and do better. Ultimately these fears may pass, but as the spiders that become one with the sky can still guide us as we look back on our existence here on earth. Up in the stars they become our guideposts. In a way spiders also serve to be those in our society who are less understood and despised. In a way they are constantly in the back of your mind. They guide our actions in this class. They teach us wha the true goal of a fair trial is.
Spiders are misunderstood creatures. They often elicit a scared, panicked reaction from those that come upon them by surprise. People kill the daddy long legs in their basement in haste, forgetting that they eat mosquitoes, a bug truly to be feared for its ability to spread disease.
The spiders in this poem represent another entity often misunderstood and reactively snuffed out. They are the criminally accused, trying to go about their lives. More specifically, they represent the feelings of collective guilt we have for incarcerating these misunderstood entities. This guilt permeates throughout each of us and also throughout our entire society. The guilt can sometimes be confused for righteousness.