CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, May 9, 2014

Wilson on Anti-Justice

Wilson melanieMelanie D. Wilson (University of Kansas - School of Law) has posted Anti-Justice (Tennessee Law Review, Vol. 81, No. 4, 2014) on SSRN. Here is the abstract:

This Article contends that, despite their unique, ethical duty to “seek justice,” prosecutors regularly fail to fulfill this ethical norm when removed from the traditional, adversarial courtroom setting. Examples abound. For instance, in 2013, Edward Snowden leaked classified information revealing a government-operated surveillance program known as PRISM. That program allows the federal government to collect metadata from phone companies and email accounts and to monitor phone conversations. Until recently, prosecutors relied on some of this covertly acquired intelligence to build criminal cases against American citizens without informing the accused. In failing to notify defendants, prosecutors violated the explicit statutory directives in the Foreign Intelligence Surveillance Act (FISA). In ignoring the statute, they also breached their obligation to “seek justice.”

No one complained about the prosecutors’ misdeeds because only prosecutors knew that the investigative evidence had been concealed from defendants. In every FISA case, prosecutors alone enjoy access to the relevant surveillance information and singularly decide whether to withhold or disclose it. Such ethical breaches are prevalent in plea bargaining and “Brady” evidence situations as well. This Article contends that because of the non-adversarial and secluded, or as I coin it “anti-justice,” environment for moral decision-making in the FISA and other contexts, these ethical violations are predictable, if not inevitable. The review of case files for FISA evidence, like other, analogous, settings in which prosecutors make decisions in seclusion, does not create the milieu where the ethic of doing justice can flourish or, arguably, survive. Doing justice in our system, this Article concludes, requires adversarial judicial proceedings or some equivalent outside influence as a check on prosecutors’ power and discretion. Criminal justice scholars and defense lawyers have previously criticized plea bargaining and prosecutors’ handling of Brady evidence. This is the first Article to examine prosecutors’ recent defiance of FISA as proof that in each of these settings, justice demands capable adversarial, judicial or public influences.

| Permalink


Mrs. W., thank you for the Anti-Justice article. From the abstract, I assume that you also agree that it’s about darn time that we-the-public, start to demand transparency & accountabilty via: damanding a true checks & balances process to be implemented - ensuring that justice is sought vs. simply obtaining wins at all cost. When both teams celibrate a plea bargain (a Draw) as if they both won, without a jury trial, we all loose, especially when the real criminal is allowed to escape justice due to no investigation being performed by anyone. Sadly, professionals of the future will look back on our ground-hog day as a WTF? were they thinking back then and why did they go along with it? Since ‘we’ are the ‘they’, it’s up to a few of us to go on record denouncing the rigged system. Another sad point is that those pretending to seek justice for the wrongfully convicted are shown to have created another ambulance chasing niche that I call – “Cherry Picking for Justice”.
I look forward to reading the piece in its entireity and hope to see a follow up and / or a series of Anti-Justice entitled articles on this topic, complete with possible solutions that can be utilized now vs. simply writing about it and moving on. Thanks again.

Posted by: Thomas R. Griffith | May 10, 2014 7:47:13 AM

Post a comment