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
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