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phill4paul
11-04-2014, 06:46 AM
When I was a young man learning the law, I was taught about the "good faith" in which all public officials are always and forevermore presumed to be acting. This presumption, this so-called "implicit covenant," is an axiomatic cornerstone of both civil and criminal law. And why not? Our courts are busy enough these days without requiring judges to peer into the motives and the biases of the parties moving through our justice systems.

What a tidy but self-defeating fiction the "good faith" presumption has revealed itself to be over my 25 years in the law. The more I study criminal justice, the clearer it is to me that public officials on every level of our justice system are wholly unworthy of the benefit of the doubt the law ascribes to their actions. To even say this, I realize, is to cross some sort of decorous boundary that proper lawyers and judges are still conditioned to observe. But here we are. I am no longer a believer in the presumption of "good faith." I've simply seen too much evidence of bad faith.

My epiphany on this has come rather recently, I'm afraid to say, in just the past few years, as I have covered some of the worst excesses of capital punishment in America. State officials who are supposed to be neutral functionaries when it comes to crime and punishment instead reveal themselves to be unrepentant, unremitting, unconscionable agents of death. Judges who are sworn to uphold the Constitution instead lean over backward to justify and implement unjust, unconstitutional results.

Where is the "good faith" Texas officials are presumed to have shown Jerry Hartfield, a man who has languished in prison for 34 years (and counting) even though he is under no conviction or sentence? Where is the "good faith" shown to Justin Michael Wolfe, a Virginia man whose prosecutors cheated twice to secure a conviction and death sentence against him? Did Missouri officials act in "good faith" when they executed Herbert Smulls in January four minutes before the United States Supreme Court had finished considering his case?


I was taught that it was bad legal reasoning, not to mention poor manners, to challenge the motives or "good faith" of public officials. I see now that I was taught wrong. The death penalty in America, indeed the entire criminal justice system, is worthy of trust and respect only to the extent that the men and women running it act honorably and in good faith, even if it means they take positions with which they do not personally agree. Think here of John Roberts' famous "umpire" analogy. Now imagine that umpire calling only balls for one team and only strikes for another. The truth is that our justice systems are full of men and women acting in bad faith under color of law, and it's time we all stopped pretending this isn't so.

http://theweek.com/article/index/261928/the-myth-of-good-faith-in-our-legal-system

tod evans
11-04-2014, 06:53 AM
1 lawyer writes a SWLOD.......BFD!

What do ya' want to bet he's still sucking money and misery out of the system?

Carlybee
11-04-2014, 07:21 AM
I still wonder why we have to treat judges with such respect and deference when they are paid out of our taxes. I really have issues with the "your honor" and basically bowing to a public servant.

phill4paul
11-04-2014, 07:25 AM
I still wonder why we have to treat judges with such respect and deference when they are paid out of our taxes. I really have issues with the "your honor" and basically bowing to a public servant.

They represent the power of the collective over the individual. Therefore, individuals must show obeisance.

Acala
11-04-2014, 08:42 AM
This article confuses me. The legal system is totally screwed up, but not because there is a presumption of good faith in government actions. On the contrary. The US Constitution is full of limitations on government power that are based on the presumption of BAD faith by government officials. The requirement of a public trial, a trial by jury, the right to confront adverse witnesses, the right to counsel, are all based on the presumption of BAD FAITH on the part of the government when left to its own devices. As far back as Magna Carta, people understood that government could not be trusted.

Not sure where this guy went to law school, but the basic presumption in this country has always been one of bad faith on the part of government. The problem is that the people have been complacent and allowed the government to undermine the limitations on its power. Just one example: although it was originally intended that juries could judge the facts AND the law in a criminal case (because government could not be trusted), judges and lawyers do everything they can to hide that truth from juries.

So the problem is not a presumption of good faith but a slackening of the original limits on the power of a government always assumed to be untrustworthy.

Carlybee
11-04-2014, 08:43 AM
They represent the power of the collective over the individual. Therefore, individuals must show obeisance.


That seriously needs to change.

Lucille
11-04-2014, 09:50 AM
I was just reading a famous last words of criminals (http://dying.about.com/od/reviews/a/Famous-Last-Words-Criminals.htm) article and saved this one:

"Capital punishment: them without the capital get the punishment."
-- John Spenkelink

Truer words... My dad was an attorney and during the OJ trial, he said OJ was one of the few who would get a fair trial because "he could afford it."

Also read about Johnny Frank Garrett (http://www.youtube.com/watch?v=i0F3aNX_SdI), a victim of the Just Us system, executed, later found innocent (http://en.wikipedia.org/wiki/Johnny_Garrett#Later_evidence), and Texas still refuses to exonerate him.

Also see my sig.

scottditzen
11-04-2014, 10:30 AM
Unfortunate that it took this man 25 years to learn what I did after my first year of law school.

Better late than never.