Editorial:
Judge
the
System
5/28/04
David Borden, Executive Director, [email protected], 5/28/04
Recently I caused some actual trouble -- or rather, got into some trouble -- with a civil disobedience I committed, an act in which I was followed shortly thereafter by our associate director. In August of last year I sent an open letter to DC Chief Judge Rufus G. King III explaining that I was refusing to report for jury service, and laying out as my reasons a critique of the drug war and the corrupting impact it has had on the US criminal justice system as a whole (https://stopthedrugwar.org/openletter/). Reaction to my letter was varied, even within the drug reform movement itself. Indeed, the gesture is not a straightforward one -- we want people who hate the drug laws to serve on juries, after all, especially drug case juries. Maybe some of them will get to set someone free who would have otherwise served a prison term undeservedly. Most people came around to appreciating what we were doing when they realized how unlikely it was that either of us would get picked for that kind of a jury, given that we have to inform the court who our employer is, and seeing the press we got for the issue in venues including The Washington Post. And there was a principle involved that is sound -- not only are the drug laws wrong, but the system itself has become so badly corroded in its ethical standards that reasonable people can feel they should not be associated with it or support it with their service. Not to say that that is an inevitable conclusion; this was very much an individual action, and others have to individually decide what is the right course for them. Two of the reasons to feel that way about the system are the extent and seriousness of police and prosecutorial misconduct. It's not that most cops are bad or that most prosecutors are bad. But overall such problems occur with a frequency and severity that reflects an astounding lack of effort on the part of the system to police its own ranks. As the former police chief of San Jose and Kansas City, Joseph McNamara, has pointed out, felony perjury by police officers takes place literally hundreds of thousands of times per year in drug cases alone. A study by the Center for Public Integrity found that prosecutorial misconduct occurs frequently, can have terrible consequences for its victims, but is almost never punished. One such victim is Dr. Frank Fisher, a California physician who specialized in the treatment of severe, chronic pain. As last week's Drug War Chronicle reported, the state's criminal prosecution of Fisher ended "not with a bang, but a whimper," as a campaign that began with three homicide charges ended up being tried as a minor case of fraud involving $150 of Medi-Cal fees, charges of which Fisher was acquitted. This week's issue of Drug War Chronicle includes an interview with Dr. Fisher, in which among other things he details a lengthy pattern of prosecutorial misconduct that characterized the case against him from the beginning. In short, prosecutors lied over and over to create the appearance that the charges they had brought were anything other than a scurrilous fiction. He also discusses the impact the prosecution had on his patients -- and on pain patients generally nationwide -- all of these are also victims of this and other similar pain doctor prosecutions. Of course, the prosecutors haven't been punished for their crimes against Dr. Fisher and the state, and they probably won't be. Just as Dr. Fisher's multi-year ordeal in California's criminal courts has now ended, on our end our multi-month standoff with the DC courts is winding to an end as well. Simply, Judge King had more cards to play then we knew about; we only counted on the limited penalties available to him under criminal contempt of court, not the open-ended ongoing coercive measures possible through civil contempt. More about that later. For now suffice it to say that having made our point, and having held out for the greater part of a year, sometime in the reasonably near future David Guard and I will be complying with the court's order to report for jury service. Unfortunately, our "service" is likely to consist of reporting and getting sent home because of our views. This is one of the reasons we decided to do what we did in the first place. Regardless, until the system begins to hold to account those who abuse their positions and deceive judges and juries to garner convictions, we will continue to judge the system wanting and our service will be provided under duress. The failings of the justice system tarnish the integrity of our nation as a whole. So stand up, judge the system, and demand reform.
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