Of the three players in the criminal justice system—defendants, prosecutors and judges—critiques rarely begin with an observation that defendants have too much power. The discretion and resources of the prosecution are legion and of course, judges hold ultimate authority, while defendants are often literally at the mercy of both.
So it was disconcerting to read about the order of a federal judge appointing a private attorney to pursue Steven Donziger, counsel in the civil Chevron case, for criminal contempt when the US Attorney’s office refused to prosecute. (NYLJ, P. 1, 8/14/19). There are many remedies available to judges when they feel attorneys have abused the system; criminal relief should be used sparingly. Regardless of the merits, to wield it in a matter where the acrimony between the judge and counsel has been front-page news for many years brings to mind the maxim that the appearance of justice is as important as justice itself.
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