A lawyer on the Libby verdict

Dean Barnett writes at the Townhall.com blog:

After a bit of initial chit-chat, he hit me with a hypothetical that he had already bounced off a couple dozen of my fellow job-seeking classmates: “A potential case comes to you. You’re not sure whether the alleged perpetrator is guilty or not. What do you do? Do you bring the case to trial?”

I had spent the previous six months working for the Massachusetts Attorney General as a 3:03 attorney, which meant that even though I was in law school I functioned pretty much as a full-grown Assistant Attorney General. I had appeared before numerous courts throughout the Commonwealth and shared office space with some of the state’s most stone-cold prosecutors. I easily fielded the hypo.

“It’s a prosecutor’s job to do justice,” I told my interviewer. “Since the prosecutor in this instance doesn’t think the accused is guilty beyond a reasonable doubt, he would be doing something that he knew was an injustice if he got the accused convicted. He shouldn’t bring the case.”

…

I walked out of the interview room beaming. But the grin was smug. The only reason I was able to so effortlessly handle the hypothetical was because I had become so thoroughly schooled in the typical prosecutor’s platitudes by walking amongst them for the past six months. What I had told my interviewer was a total crock, and certainly not indicative of the way things worked in the real world.

…

The prosecutors that I worked with at the Attorney General’s office were great fun. They were gunslingers. They worked hard and played hard. But, in spite of my fondness for these people, I have to admit that navel-gazing sessions on the meanings of justice weren’t in their repertoire. They sought convictions. Convicting famous people was better than convicting anonymous foes. Headlines were better than anonymity. In short, justice was a game.

…

PATRICK FITZGERALD IS A PROSECUTOR. He came to the Valerie Plame affair with his typical agenda – get someone thrown in jail. It was Scooter Libby’s misfortune that he was the one without chair when the music stopped. It was his greater misfortune that there wasn’t a bigger fish nibbling on prosecutor Fitzgerald’s line. If there had been, Scooter Libby would still be a mostly anonymous public servant today.

Did Scotter Libby break the law and perjure himself before a Grand Jury? As a legal fact, yes. A jury has said so, and that’s that. Of course, juries make a lot of things legal facts that shouldn’t be.

And there it is.  Theory says a prosecutor’s job is to seek justice.  Theory says a prosecutor has the responsibility to drop a case “in the interest of justice” if he doesn’t believe there’s a crime to prosecute.  At the end of the OJ Simpson trial, Marcia Clark attempted to work this into her closing argument.

Practice says a prosecutor is judged by his success rate, and success is measured by how many people are convicted.  That means, If the prosecution turns its sights on you, it is the enemy, and actual innocence is not a defense.  Your only defense is the existence of other people, whose guilt is easier to prove, and whose conviction can be added to a prosecutor’s record with less effort.

Update:

Jerry Pournelle writes:

Tip for the day: never speak to any FBI official or other Federal investigator unless subpoenaed and under oath. Don’t even tell them the time of day or where you were five minutes ago. Ask Martha Stewart for details.

It used to be we thought of “our police” and “our FBI.” These are different times. They like to play gotcha now.

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