criminal-law legal-terms professional-ethics
What is Justice?
<p>A blindfolded woman holding out an equal-arm scale commonly illustrates Lady Justice. However, this is merely a characterization Justice.</p>

<p>In Book I of Plato’s Republic, Thrasymachus claims that “the just [justice] is nothing other than the advantage of the stronger.”  Socratic dialogue exposes Thrasymachus' ignorance as he finally cedes that he does not know what the just is, nor whether it is a virtue or whether a just man is happy or unhappy.</p>

<p>Many jurisdictions actually mandate that their prosecutors are not to seek prosecution, rather they are to seek Justice.  <a href="http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.2.htm" rel="nofollow noreferrer">Art. 2.01.</a> DUTIES OF DISTRICT ATTORNEYS of the TEXAS CODE OF CRIMINAL PROCEDURE, CHAPTER 2. GENERAL DUTIES OF OFFICERS states:</p>

<blockquote>
  <p>It shall be the primary duty of all prosecuting attorneys, including
  any special prosecutors, not to convict, but to see that justice is
  done.</p>
</blockquote>

<p>So, can you Law experts point me to an actual definition of Justice?  What is Justice?  Surely, this should be easy but I simply can't find the documentation.  What is Justice?  Please reference/cite the Statutes/Code (of any jurisdiction).</p>

<p><a href="https://i.stack.imgur.com/M1woA.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/M1woA.jpg" alt="enter image description here"></a></p>

<p><strong>No</strong></p>

<p>From <a href="https://en.m.wikipedia.org/wiki/Justice" rel="nofollow">https://en.m.wikipedia.org/wiki/Justice</a></p>

<blockquote>
  <p>"justice" is the systematized administration of punishment and reward. Further to this, one can say that justice excludes randomness.</p>
</blockquote>

<p>Justice is whatever society decides is the correct way to reward or punish its members for their actions.</p>

<p>For example, in a society without slavery, justice includes the payment of wages for work. However, in a society with slavery justice involves the obligation on slaves to work without pay.</p>

<p>Your example of "an eye for an eye" was justice in ancient Judea. In Anglo-Saxon England taking an eye required payment of a wergild to the victim. In modern Western democracies it usually involves the concept of damages - returning the person as far as possible to the position they were in before they lost their eye; this would involve the cost of medical treatment and compensation. If the loss was as the result of a crime then justice also requires punishment by the state.</p>

<p>Fairness or equity are not necessarily parts of justice except to the extent that they eliminate arbitrariness.</p>

<p>In the sense used in the Texas Code of Criminal Procedure this means that prosecutors should not try to convict a defendant of a crime when the prosecutor believes that the defendant is innocent, and should not seek a sentence which is disproportionate to the crime committed, even if the prosecutor believes that he or she is able to do so.</p>

<p>This has to be read, however, in light of the absolute discretion available to prosecutors from which prosecutors have absolute immunity for civil liability for their exercises of discretion, <em>See, e.g., Wayte v. United States</em>, 470 U.S. 598 (1985) and <em>Bordenkircher v. Hayes</em>, 434 U.S. 357 (1978).</p>

<p>Similarly, even the Texas Attorney General is loathe to over regulate exercises of discretion by this office.</p>

<blockquote>
  <p>For example, on the one hand county attorneys are litigators,
  prosecutors required by the Code of Criminal Procedure "not to
  convict, but to see that justice is done." Tex. Code Crim. Proc. Ann.
  art. 2.01 (Vernon 2005).(fn2) On the other hand, county attorneys are
  researchers and writers required to render legal advice to county and
  precinct officials within the attorney's county. Tex. Gov't Code Ann.
  § 41.007 (Vernon 2004). As county officials, moreover, county
  attorneys hold "virtually absolute sway over the particular tasks or
  areas of responsibility entrusted to [them] by state statute."
  Familias Unidas v. Briscoe , 619 F.2d 391, 404 (5th Cir. 1980).</p>
</blockquote>

<ul>
<li>Texas Attorney General Opinions 2006. No. GA-0475. </li>
</ul>

<p>In practice, this absolute discretion without fear of civil liability, together with the limited grounds upon which discipline can be imposed on a prosecutor, render this standard merely aspirational in practice - setting forth an unenforceable aspirational goal rather than an enforceable standard despite its seemingly clear and mandatory language. Like most aspirational statements it is mandatory in form, but does not identify any consequences for disobedience.</p>

<p>For example, in the case of <em>Commission for Lawyer Discipline v. Hanna</em>, 14-15-00929-CV, 14-15-00931-CV (Tex. App. 2016), a prosecutor convicted of suspect of a drug crime on the basis of a laboratory test by an individual who was later discovered to have falsified drug test results, something that state officials notified all prosecutors in the state of and specifying the cases involved - this led to many reversed convictions in post-trial motions. But, the defendant and his counsel in a particular case were not notified because the evidence had been destroyed and could not be retested, meaning that the defendant would almost surely be released if he sought to have his conviction reviewed. Professional ethics charges were brought against the prosecutor for failing to reveal this exculpatory evidence under the "justice" clause of Texas Code of Criminal Procedure 2.01 (restated in the preamble to Texas Disciplinary Rule 3.09) something that the U.S. Supreme Court had required as a matter of constitutional law since <em>Imbler v. Pachtman</em>, 424 U.S. 409, 427 n. 25 (1976), that prosecutors are "bound by the ethics of [their] office to inform the appropriate authority of after-acquired or other information that cases[4] doubt upon the correctness of the conviction." But, Section 3.09 of the Texas Disciplinary Rules of Professional Conduct does not expressly require post-conviction disclosure of exculpatory evidence (even though the leading treatise of professional ethics in Texas held that it should be interpreted to require that this be done), because Texas deliberately declined to follow a change to the Model Rules of Professional Conduct that incorporated that requirement. Instead, the Texas Court of Appeals held that:</p>

<blockquote>
  <p>We further note that the Texas Disciplinary Rules of Professional
  Conduct establish the "minimum standards of conduct below which no
  lawyer can fall without being subject to disciplinary action;"
  however, the rules "do not . . . exhaust the moral and ethical
  considerations that should guide a lawyer." See Tex. Disciplinary
  Rules Prof'l Conduct preamble ¶¶ 7, 11. <strong>"A prosecutor has the
  responsibility to see that justice is done, and not simply to be an
  advocate."</strong> Tex. Disciplinary Rules Prof'l Conduct R. 3.09 cmt. 1.
  <strong>Although we determine today that Rule 3.09(d) did not impose a
  post-conviction duty of disclosure under the circumstances of this
  case, prosecutors nevertheless should strive to see that justice is
  done before and after conviction.</strong> See Tex. Disciplinary Rules Prof'l
  Conduct preamble ¶ 9 (<strong>"Each lawyer's own conscience is the touchstone
  against which to test the extent to which his actions may rise above
  the disciplinary standards prescribed by these rules."</strong>).</p>
</blockquote>

<p>Thus, the prosecutors duty "to see that justice is done" in Texas may set a moral standard for prosecutors, but does not impose upon prosecutors even a duty to comply with the United States Constitution as determined in well established case law that could right the wrong of a wrongfully obtained conviction in Texas, if it does not violate Rule 3.09 and its comments, which operationalize that duty in Texas.</p>

<p>It is actually reversible error in Texas for a prosecutor to argue to a jury that he or she has a duty to see that justice is done, while defense counsel has a duty to zealously represent his client in an effort to obtain a favorable result for the client. <em>Wilson v. State</em>, 938 S.W.2d 57 (Tex. Crim. App. 1996). Improper argument to a jury on this basis, however, is frequently acknowledged to be error, but held to be harmless by the Texas courts. <em>See, e.g., Bullard v. State</em>, 02-06-099-CR (Tex. App. 2007) (unpublished decision). It is likewise held to be proper in any case where the defense has implied in any way that the state acted improperly in the case. <em>See, e.g., Linares v. State</em>, 427 S.W.3d 483 (Tex. App. 2014).</p>

<p>As operationalized for enforcement purposes, the "justice" standard is less rigorous. The standards that prosecutors are actually held to is set forth in Rule 3.09 of the Texas Disciplinary Rules of Professional Conduct which are actually enforceable as they are they standard for imposition of discipline on prosecutors in Texas, and the language of the rule is diluted further in the official comment to the rule and the case law interpreting it. Rule 3.09 states:</p>

<blockquote>
  <p>Texas Disciplinary Rules of Professional Conduct</p>
  
  <p>III. Advocate</p>
  
  <p>As amended through September 1, 2016</p>
  
  <p>Rule 3.09. Special Responsibilities of a Prosecutor</p>
  
  <p>The prosecutor in a criminal case shall:</p>
  
  <p>(a) refrain from prosecuting or threatening to prosecute a charge that
  the prosecutor knows is not supported by probable cause; </p>
  
  <p>(b) refrain from conducting or assisting in a custodial interrogation
  of an accused unless the prosecutor has made reasonable efforts to be
  assured that the accused has been advised of any right to, and the
  procedure for obtaining, counsel and has been given reasonable
  opportunity to obtain counsel; </p>
  
  <p>(c)   not initiate or encourage efforts to obtain from an unrepresented
  accused a waiver of important pre-trial, trial or post-trial rights; </p>
  
  <p>(d)   make timely disclosure to the defense of all evidence or
  information known to the prosecutor that tends to negate the guilt of
  the accused or mitigates the offense, and, in connection with
  sentencing, disclose to the defense and to the tribunal all
  unprivileged mitigating information known to the prosecutor, except
  when the prosecutor is relieved of this responsibility by a protective
  order of the tribunal; and </p>
  
  <p>(e)   exercise reasonable care to prevent persons employed or controlled
  by the prosecutor in a criminal case from making an extrajudicial
  statement that the prosecutor would be prohibited from making under
  Rule 3.07.</p>
  
  <p>Note:</p>
  
  <p>Comment:</p>
  
  <p>Source and Scope of Obligations</p>
  
  <p>(1) <strong>A prosecutor has the responsibility to see that justice is done,
  and not simply to be an advocate. This responsibility carries with it
  a number of specific obligations. Among these is to see that no person
  is threatened with or subjected to the rigors of a criminal
  prosecution without good cause. See paragraph (a). In addition a
  prosecutor should not initiate or exploit any violation of a suspect's
  right to counsel, nor should he initiate or encourage efforts to
  obtain waivers of important pre-trial, trial, or post-trial rights
  from unrepresented persons. See paragraphs (b) and (c). In addition, a
  prosecutor is obliged to see that the defendant is accorded procedural
  justice, that the defendant's guilt is decided upon the basis of
  sufficient evidence, and that any sentence imposed is based on all
  unprivileged information known to the prosecutor. See paragraph (d).
  Finally, a prosecutor is obliged by this rule to take reasonable
  measures to see that persons employed or controlled by him refrain
  from making extrajudicial statements that are prejudicial to the
  accused. See paragraph (e) and Rule 3.07. See also Rule 3.03(a)(3),
  governing ex parte proceedings, among which grand jury proceedings are
  included. Applicable law may require other measures by the prosecutor
  and knowing disregard of those obligations or a systematic abuse of
  prosecutorial discretion could constitute a violation of Rule 8.04.</strong></p>
  
  <p>(2) Paragraph (a) does not apply to situations where the prosecutor is
  using a grand jury to determine whether any crime has been committed,
  nor does it prevent a prosecutor from presenting a matter to a grand
  jury even though he has some doubt as to what charge, if any, the
  grand jury may decide is appropriate, as long as he believes that the
  grand jury could reasonably conclude that some charge is proper. A
  prosecutor's obligations under that paragraph are satisfied by the
  return of a true bill by a grand jury, unless the prosecutor believes
  that material inculpatory information presented to the grand jury was
  false.</p>
  
  <p>(3) Paragraph (b) does not forbid the lawful questioning of any person
  who has knowingly, intelligently and voluntarily waived the rights to
  counsel and to silence, nor does it forbid such questioning of any
  unrepresented person who has not stated that he wishes to retain a
  lawyer and who is not entitled to appointed counsel. See also Rule
  4.03.</p>
  
  <p>(4) Paragraph (c) does not apply to any person who has knowingly,
  intelligently and voluntarily waived the rights referred to therein in
  open court, nor does it apply to any person appearing pro se with the
  approval of the tribunal. Finally, that paragraph does not forbid a
  prosecutor from advising an unrepresented accused who has not stated
  he wishes to retain a lawyer and who is not entitled to appointed
  counsel and who has indicated in open court that he wishes to plead
  guilty to charges against him of his pre-trial, trial and post-trial
  rights, provided that the advice given is accurate; that it is
  undertaken with the knowledge and approval of the court; and that such
  a practice is not otherwise prohibited by law or applicable rules of
  practice or procedure.</p>
  
  <p>(5) The exception in paragraph (d) recognizes that a prosecutor may
  seek an appropriate protective order from the tribunal if disclosure
  of information to the defense could result in substantial harm to an
  individual or to the public interest.</p>
  
  <p>(6) Sub-paragraph (e) does not subject a prosecutor to discipline for
  failing to take measures to prevent investigators, law enforcement
  personnel or other persons assisting or associated with the
  prosecutor, but not in his employ or under his control, from making
  extrajudicial statements that the prosecutor would be prohibited from
  making under Rule 3.07. To the extent feasible, however, the
  prosecutor should make reasonable efforts to discourage such persons
  from making statements of that kind.</p>
</blockquote>

<p>The standard has also been applied to disqualify a prosecutor who has a personal stake in the outcome of a prosecution. <em>In re Guerra</em>, 235 S.W.3d 392 (Tex. App. 2007) (loser of an election appointed as special prosecutor of a voter fraud case in that election).</p>

<p>On the other hand, in a split opinion, the majority of the Texas Court of Criminal Appeals has held that the "justice" mandate is limited to the Texas Code of Professional Responsibility and does not give rise to a duty to reveal a close 27 year personal friendship with a juror which the juror did not disclose in response to a relevant question in the jury selection process. <em>Armstrong v. State</em>, 897 S.W.2d 361 (Tex. Crim. App. 1995).</p>

<p>Similarly, while a prosecutor has a duty to disclose exculpatory evidence to the defense, a prosecutor does not have a duty consistent with the "justice" requirement in Texas to introduce an exculpatory evidence to the jury (i.e. evidence tending to show that the defendant is guilty) at trial. <em>Johnson v. State</em>, 810 S.W.2d 785 (Tex. App. 1991).</p>

<p>In short, the plain meaning of the prosecutor's oath is not enforceable in practice by any legal means in many cases, and is hence merely aspirational, while Rule 3.09 supplies the true, counterintuitive and crabbed legal meaning of this term in Texas. In practice, "Texas Justice" as interpreted by the Texas Court of Criminal Appeals is anything but.</p>
