"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Thursday, November 02, 2006

Strange Justice

It takes some real chutzpah for a law professor of all people to suggest that so-called "procedural injustice" can be winked at so long as "substantive justice" is done.

When a judge goes behind the back of the prosecutor and cuts a leniency deal with a defense attorney to reduce an already-imposed sentence on a child sex offender (46 year old man with three counts of sodomizing a 7 year old girl), and specifically asks the attorney not to inform the prosecutor, that's not some trivial "procedural injustice;" it's judicial misconduct and should result in the judge's removal and suspension of her law license. (She violated this provision of the Utah Code of Judicial Conduct).

What would be the reaction if the shoe were on the other foot? Imagine a judge in an ex parte conversation assuring the prosecutor in a case that the judge will impose a sentence that the prosecutor wants. Would the defense bar and the legal academy applaud the judge for obtaining real justice despite her disregard of "mere" procedures like public trial and representation of all parties in a case?

The problem is the assumption that 1) procedural justice is a concept only to be applied in favor of the defendant, not the state; and 2) that cutting an otherwise lawful sentence is in fact, "substantive justice." One could easily argue that someone who sexually assaulted a seven year old girl deserves every minute of his original 30 year sentence, and that it was truly an injustice to reduce secretly that sentence by 10 years without so much as a phone call to the prosecutor.

That's not justice, that's moral cowardice.

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