Paul F. Walsh, Jr.

The Obligation to Be Fair

“But justice, though due the accused is due the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”
(Benjamin Cardozo, Snyder v. Massachusetts, 291 U.S. 97 (1934))

Prosecutors are under great scrutiny and even greater criticism these days. Hardly a week goes by without one of our colleagues coming under attack for perceived shortcomings of the criminal justice system. One columnist wrote that plea bargaining was torture carried out by district attorneys. Another wrote of the “countless” wrongful convictions perpetrated by unscrupulous DAs. Even the language used by courts to describe the shortcomings of our justice system is revealing. Mistakes by judges are “judicial error,” by defense counsel they are “ineffective assistance of counsel,” by DAs they are known as “prosecutorial misconduct.” Even the term “exoneration” has taken on new meaning. A Massachusetts man was found guilty of murder, upon a re-trial he pleaded guilty to manslaughter. The Chicago Tribune listed his case as an “exoneration.”

But it is not the role of the prosecutors to stand by and complain, to curse this perceived unfairness. No, no whining here.

Prosecutors put themselves in the arena. Hell, if we can’t take the punches we shouldn’t be in the ring. No, it is our job to stand up to criticism, to stand up to the criminal and to stand up for the safety of our streets, our schools, our neighborhoods; to stand up and do something about it.

The National District Attorneys Association did just that at our recent board of directors meeting this fall in passing two resolutions. One urged Congress to re-authorize the Violence Against Women Act so that prosecutors can have the ability and resources to prosecute those who commit the seven million rapes and physical assaults upon partners each year, to stand up to those criminals who murdered 1500 partners last year.

The National District Attorneys Association also resolved that all evidence proven to be truthful and reliable should be available to convict those who would terrorize our communities, not just that evidence caught on videotape. We needed to take a stand here and we did.

The National District Attorneys Association joins with those who propose improvements in the justice system, who strive to eliminate the possibility of erroneous verdicts—be they convictions or acquittals.

But we do not support those initiatives, masquerading as reforms, which simply try to make it more difficult to prove the guilt of those criminals who are truly guilty.

Yes, we prosecutors are unique among trial lawyers in America. We are the only ones with the obligation to be fair, an obligation we take most seriously. But as Justice Cardozo said “fairness is due the accused and the accuser.” It falls to us, America’s prosecutors, “to keep the balance true.” The safety of our communities depends on it.