Prosecutorial indiscretion

passed a bar exam; you are entitled to the effective assistance of counsel. Justice, we say, demands no less. A few years ago, a defendant convicted in a capital case and sentenced to death appealed to the Supreme Court on the grounds that he had been denied the effective assistance of counsel because his lawyer fell asleep (this was uncontested) during the trial.

Ask anyone who has practiced law, and they will tell you: Some lawyers are better than others. There are some good lawyers at the very bottom of the legal food chain (where lawyers agree to represent indigent defendants for hourly wages that few lawyers in private practice would accept). But there are, as in most things, more good lawyers at the top than at the bottom. The real question is: How low can you go? The answer, sadly, is very low. I wish that at some point in my career I'd been a prosecutor. Prosecutors, many of them just a few years out of law school, decide whether a Calhoun will be charged and for what. Supreme Court justices make law. Prosecutors make life-anddeath decisions. Faith in our system requires that the fight between prosecution and defense not necessarily be equal, which it rarely is (rich defendants can often outlawyer the government, and poor defendants almost never do), but that it at least be fair. In Calhoun's case, it wasn't. Pure and simple. The prosecutor, as Sotomayor put it, "tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation."