Robert H Jackson: 'The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman,' The Federal Prosecutor - 1940

1 April 1940, Great Hall Department of Justice Building, Washington DC, USA

It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people who really wanted the right thing done- wanted crime eliminated-but also wanted the best in our American traditions preserved.

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized department of justice. It is an unusual and rare instance in which the local district attorney should be superseded in the handling of litigation, except where be requests help of Washington. It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled.

Experience, however, has demonstrated that some measure of centralized control is necessary. In the absence of it different district attorneys were striving for different interpretations or applications of an act, or were pursuing different conceptions of policy. Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts. To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.

Our problem, of course, is to balance these opposing considerations. I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts. At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law.

Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that 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. The lawyer in public office is justified in seeking to leave behind him a good record. But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance. Reputation has been called "the shadow cast by one's daily life." Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a. judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.

The federal prosecutor has now been prohibited from engaging in political activities. I am convinced that a good-faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service. There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations. I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics.

There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the eases in which he receives complaints. If the department of justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning, What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm-in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

In times of fear or hysteria· political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases which deal with so called "subversive activities." They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a "subversive activity," such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as "subversive" by those whose property interests might be burdened or affected thereby. Those who are in office are apt to regard as "subversive" the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term "Republican" and the term "Democrat" were epithets with sinister meaning to denote persons of radical tendencies that were "subversive" of the order of things then dominant.

In the enforcement of laws that protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.

Another delicate task is to distinguish between the federal and the local in law-enforcement activities. We must bear in mind that we are concerned only with the prosecution of acts which the congress has made federal offenses. Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians.

But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals. And the moral climate of the United States is as varied as its physical climate. For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely. The same variation of attitudes towards other law-enforcement problems exists. The federal government could not enforce one kind of law in one place and another kind elsewhere. It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment. In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may. Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

US Deputy Attorney General Rod Rosenstein reads the last paragraph from Robert H. Jackson's "The Federal Prosecutor."

Martin Flanagan: "I am a man of no faith. Or I am a man of all faiths", Multi faith Opening of Legal Year - 2017

30 January 2017, Government House, Melbourne, Australia

1.

When I am asked to speak to an audience, I always ask the question – who is the audience? To whom am I speaking?

Today’s gathering was described to me as “The Multi Faith Opening of the Legal Year”. That brings together two concepts – faith and law – that great minds have been pondering for thousands of years. I have been told to take no more than 12 minutes.

Here goes

2.

I am a man of no faith. Or I am a man of all faiths.

My principal spiritual guide has been my father. He died at the age of 98 having survived a war crime, the construction of the so-called Death or Burma Railway by the Imperial Japanese Army using slave labor.

100 to 200,000 men of various nationalities died.

He returned from that experience with no formal religious beliefs but a belief in compassion that transcended all else.

I call my father a bush Buddhist.

One of my brothers calls him a bush Catholic.

Does it matter?

Only if we believe the ultimate truth of thesematters lies in words.

I am adamantly of the view that it does not.

3.

I was brought up in the Catholic church. There was a lot about the Catholic church at that time that I didn’t get, but there were a couple of things I did.

I got the story about the mob wanting to stone a woman to death for adultery and Jesus stopping them by saying, “Let he who is without sin cast the first stone”.

And it was his cry from the cross, “My God, my God, why have you forsaken me?”, that suggested to me that this may indeed be a truly human story.

And there was one other line that has always stayed with me:  By the fruit of their actions ye shall know them.

4.

At university, I did a law degree. I learned to respect “the law”, as it was then called, as a system of disciplined thought. In my very first moot court I also learned something that has stood me in good stead ever since, that you can’t get away with pretending to know about something if you’re being scrutinised by good minds schooled in the subject.

I also sensed a certain wisdom in the law, in sayings such as, “Justice must not only be done; It must be seen to be done”.

One of the things I continue to marvel at in our system of law is the presumption of innocence. Imagine if the presumption of innocence were not a character of our legal system at this time and we sought to introduce it by political means. What would shock jocks say? What would the tabloid headline writers scream? It would be something about going soft on crims, about it being another betrayal of ordinary people by a privileged elite.

I believe that if we had not have inherited the presumption of innocence, we would not be capable of getting it ”up” in the present political climate, nor in the foreseeable future.

That’s where we are politically in some ways right now - about 200 years ago,

I take a particular interest in that period of history, the Georgian period, not least because the modern state of Australia was born from it.

5.

My life has been a search for meaning.

When I was 20, I read the Chinese Book of Tao. I have never forgotten the line: “He who knows does not say; he who says do not know”,

As someone who was born into the culture of sport, I also found this line from the Hindu text, the Upanishads, compelling: “Action pursued for its own sake leads to darkness; Intellect pursued for its own sake leads to greater darkness”.

I grew up in Tasmania and could never escape the feeling that something was missing without knowing what. At 24, I went to Ireland,  thinking perhaps the answer lay in my Irish Catholic roots.

I hitch-hiked into Northern Ireland then in a state of civil war between the Catholic and Protestant communities. I nearly landed myself in serious trouble, but a Protestant truck driver saved me.  A succession of Protestants took me in.

I wandered the world for two years. In Africa, I got sick. On a railway station in the Nubian desert, I was one of many massed around a single water pump. A young man, seeing how sick I was, took the soap from my hand and washed my hair. It was the most Christian experience of my life, but the young man was a Muslim.

I was learning that whatever it was that I was seeking didn’t come with a name or a neat label.

I went to places that don’t exist any more like the old Soviet Union. I worked on a building site in Glasgow where I learned as much as I did in four years at university. I met lots of people and returned home believing what the Victorian poet Tennyson wrote in his poem Ulysses:

I am part of all that I have met.

But I was still lonely in this land, my land, Australia. There was some part of it I needed to know and didn’t. Until I met Aboriginal people.

I expected them to see me as the enemy, but I found if I approached them with humility and respect I was taken in.

And through this process I met elders, Older Aboriginal people who’d seen a lot of suffering, Who were compassionate and, although they had reason to be, weren’t racist.

I’d say to the Aboriginal elders, “This spirit you’ve got - where does it come from?” And they would point downwards and say, “The land”.

I am part of all that I have met in this land as well as outside it.

In 2015, I spoke at an Australian-Japanese reconciliation event in Sydney. Before that, I was involved in the AFL Peace Team, which sought to create a dialogue between Israelis and Palestinians. Speaking to the Japanese audience in Sydney, And an Israeli and Palestinian audience in Jerusalem, I said that so much of what I know about reconciliation I learned from Aboriginal people;  from the oldest living culture in the world.

6.

Some people say the 20th century started in 1914. It may be the 21st century started on 9/11, and since then various dark forces have flowed into one another and are now starting to run like a wild river.

Last week, the Washington Post reported that, “Positions that were once the cornerstones of American diplomacy — such as support for human rights and the rule of law — could become mere bargaining chips to be traded away in some future bilateral deal”.

The battle for those of us who believe in the Rule of Law and wish to defend it will be that we will have to frame our arguments in 140 characters or less on a twitter feed.

At such times, I take comfort from history, particularly the Georgian period in Britain and its colonies of which Tasmania, then called, Van Diemen’s Land, was one.

It was a period of gross inequity, of tyrannical tendencies, but there were still brave lawyers; brave journalists, too. If I have a hero as a journalist it is Henry Melville, author of“The History of Van Diemen’s Land 1816-36”. He chronicled the cronyism, the corruption, the brutality of the island penal colony. He reported on court cases where traditional Aboriginal people were tried for their lives and understood not a single word of the court proceedings.

Melville wrote “The History of Van Diemen’s Land” from the condemned cell at Hobart prison. Not that he was condemned but he was being given a taste of what it means to displease the authorities.

7.

We could be on the brink of an era when history starts hurtling backwards. Two hundred years ago, European wars were fought by two armies lining up opposite one another in neat rows on the outskirts of cities. Now war is Aleppo. At the end of the 19th century, torture was widely thought to be an abomination safely buried in the past. Now it’s being endorsed by the so-called leader of the free world, Donald Trump.

But to quote the Nobel Laureate for literature, Bob Dylan, “They say the darkest hour is just before the dawn”. What if we are also on the brink of an era where a lot of people around the globe all of a sudden go, “No, we can do better than this!”.

In the context of world affairs, I am currently writing a critically important book on the Western Bulldogs 2016 grand final win. When coach Luke Beveridge arrived at the Dogs in 2015 he inherited a team which had become too entrenched in its defensive ways and thereby too passive about its fate. He persuaded his players to take the game on. What if we decided to take the game on?  What if we agreed that our so-called differences aren’t as big as they might once have seemed, particularly when measured against the tsunami of social and political change that is sweeping our way?  When our beliefs meet and merge, we are both stronger. How do we know who is speaking the truth in the post-truth era? By the fruits of their actions we shall know them.

Thankyou 

R Jess Brown: 'He failed to put a bottle or trash in a can', Remarks on police shooting of Al Garrett, NAACP - 1959

May 1959

Perhaps I'm not the right person to talk about this case, but I see it so deeply and so closely that I will not rest until somebody pays for the death of Al Garrett.

I’m angry about a number of things. Not only Edward Silverman, the district attorney of this county, who has thus far failed to arrest the policeman who shot him to death, but I’m angry with a lot of my negro brethren who don’t even get angry, about the fact that a poor man lies dead in his grave tonight.

I can’t understand, I can’t understand, ladies and gentlemen, how anybody could be so heartless as to worry about the district attorney of this county, and not Al Garrett.

This defies all kinds of imagination.

He was killed as the result of a policeman’s bullet, fired at him, while he was in custody, in the 79th precinct on Gates Avenue.

This man, who had not even committed any crime, he failed to put a bottle or trash in a can, and this trigger happy cop took him in, marched him into the police station, and there is some testimony that as Al Garrett was being marched to the police station, he suddenly put up his hands and said, ‘oh you’re not going to do that to me,’ and marched holding his hand up all the way to the police station.

Anybody who’s been a negro for long, known what that means.

Any man, here in this room knows what you do, why you do a thing like that.