Guilty until proven innocent

Illinois Governor Blagojevich, judged by approximately 200 million Americans old enough to serve as jurors, is a crooked politician, indeed a criminal, a snarly, mop-haired, smart-ass who tried to sell Obama’s vacated seat in the Senate, and as the consequence of which he should be expelled from office and provided immediate residence in a federal penitentiary where, hopefully, he will get a haircut. He also has a dirty mouth. Whether he is guilty of any crime I do not know. Nor does anyone else including Mr. Fitzgerald, the prosecutor, who, the last I heard, was not the jury.

Simply stated, Mr. Fitzgerald has absconded with the governor’s presumption of innocence. The prosecutor has abused the immense power of his office to transform otherwise innocent members of the public — all of us – into persons who, as a result of Mr. Fitzgerald’s releases to the media, have already decided the governor’s case before we have been provided the first word of sworn testimony in a court of law. The prosecutor has converted us from the innocent to prejudiced persons. As a result of the prosecutor’s media blitz we have already come to the conclusion that the governor is guilty, and we demand that he be appropriately dealt with and immediately. A drunk who runs the stop sign at First and Main is provided a better set of rights.

This is an experienced prosecutor who knows better. All trial lawyers down to the kid trying his or her first case know that cases are to be tried in a courtroom, not in front of a TV camera. Mr. Fitzgerald knows that his trial of the governor before the cameras calls into play the Canons of Ethics that govern not only prosecutors but defense attorneys alike. We are prohibited from engaging in pretrial public statements that are likely to affect the outcome of the trial.

Mr. Fitzgerald’s conduct has substantially guaranteed that the governor will never obtain an unbiased jury in Illinois or anywhere else. That the prosecutor, who is governed by standard rules of ethics, would take such risks suggests that he sees himself above the law as he attempts to prosecute a governor in the media who allegedly also sees himself as above the law. Were I, as a defense attorney, parading before the cameras attacking the prosecution and factually defending my client I would be immediately gagged, and threatened not only with contempt of court, but with complaints to the bar where my license to practice would be in jeopardy. That such arrogant power is vested in any prosecutor is frightening in itself and destroys an even playing field to which both sides are entitled in their search for justice.

Our collective public mind has been molded by the movies and television to accept the notion that the common good permits, indeed, encourages cops and prosecutors to violate the law in order to protect us. We see the police battering down doors of suspects to illegally obtain evidence. We witness the cops bugging phones and forcing confessions. We want the police to win, because they are the heroes of the drama and such crimes are serious and threaten our security. But this sort of lawless bludgeoning of the law does terminal damage to our system of justice. By destroying the rights of any accused none of us are ever safe from the law that once stood to protect us.

Mr. Fitzgerald has selected and then dumped out pages of unsworn, untested, evidence before governor has even been charged. We already know that what the prosecutor provides is only part of the story, only the juiciest excerpts that will cause the governor the most harm. The grand jury has not yet met. Every potential member of the grand jury and later every trial juror who will sit in judgment of the governor has already been stained with prejudice against him. The presumption of innocence has been reduced to a cruel joke. Why have a trial? Mr. Fitzgerald has already convicted the governor in the media. One wonders if the government’s case is so legally flimsy that the prosecutor must revert to these tactics in order to assure a conviction.

Let us now make our own judgments. For this purpose, and for this purpose only, let’s accept the allegations of Mr. Fitzgerald as true. Let’s then ask: Which is the worst conduct — for a governor to seek the sale of a vacant senate seat or for a prosecutor to wrongfully deprive any American citizen of a fair trial and to destroy his constitutional right to the presumption of innocence? The act of the governor results in his illegal enrichment and constitutes a serious undermining of our representative system. The act of the prosecutor results in the wrongful destruction of an American citizen’s rights and casts a threatening shadow over the entire judicial system charged with the duty to secure our constitutional protections.

Mr. Fitzgerald’s conduct transcends this case. What we witness without a whimper from the media, the courts, or the bar is a prosecutor charged with the highest professional duty to see that every accused, no matter how guilty, obtains a fair trial, and who, instead, in this historical instant, has voluntarily taken steps to see that such a right becomes little more than a sad, distant echo of a justice system that once set the standard for the world.