The office of the attorney general is a constitutional institution that has been entrusted with some major duties and responsibilities in both theory and practice for over 200 years. Under Section 1 of Article 2 of the United States Constitution, the attorney general is the chief law enforcement authority in each state and the seat of power on federal administrative agencies.1 It is an integral part of our nation. The importance of that role, however, is not something that can be taken for granted. A good example of this comes from our own history. When George Washington became president in 1789, he appointed William Paterson as his personal attorney general.2 This was done to provide greater control over the nation’s legal system and to facilitate relations between the executive branch and the judicial branch of government.
When President Franklin Delano Roosevelt took office four years later, he brought two attorneys, Joseph R. McCarthy in 1940 and Charles W. Colson in 1942, who had previously held high level positions at the New York Bar.3 These men were charged with protecting the rights of America’s citizens during World War II.4 During their time in service, both men developed strong relationships with legislators of all levels and served to shape how our entire justice structure was organized and functioned during that period of rapid change.5 To better understand the current status and purpose of these offices, it is important to examine what they did when the Civil Rights Movement began.6
The civil rights movement began in 1960s in response to the widespread discrimination against African Americans in public schools, among other injustices.7 At its height, more than 30,000 civil rights activists marched through downtown Montgomery; thousands joined marches in Detroit, Alabama and Milwaukee, Wisconsin; and tens of thousands were arrested by police for participating in nonviolent protests throughout the country.8 Many of those arrested were members of Congress or their staffs.9 As a result, President Lyndon B. Johnson appointed several justices to the U.S Supreme Court including Justice Earl Warren, Justice Harry Blackmun, and Justice Thurgood Marshall.10 In addition, President Carter appointed Justice Robert H. Jackson as acting director, Chief Counsel, and head of the Office of Personnel Management (or OPM).11 Although most of these appointments occurred in the late 1950s into early 1980s, their impact extended far beyond the walls of the courthouse.12
The appointment of this kind of official changed the way in which justice was administered in many ways. For starters, the very nature of many people within our society became subject to the decisions made by these officials for whom they worked in an agency with broad-based influence over both federal and local courts. By appointing people like the judge and lawyers, President Richard Nixon ensured that the basic concepts of fair play, equal protection and due process stayed at the top of any decision made by the court.13
Justice Clark Gable once stated that “the rule of law has come along slowly but surely and we have only just begun to realize its value.”14 Since then, judges and lawyers have worked diligently towards enforcing fundamental aspects of American life and liberties. In doing so, they have upheld our democratic values, established norms of conduct, created opportunities for growth and advancement in every area of our nation, shaped how our courts are run and educated, and even established new precedents in areas where much needed legislation was necessary.15
The attorney general’s office is no exception. While serving as a junior associate in 1968, one of my assignments was to develop information about a particular case before the district court. I found this assignment rather intriguing. One day a man named Ernest Thompson III was convicted and sentenced to ten years for driving under the influence of alcohol.16 He appealed this decision and argued that the conviction could have been based upon “evidence of mental instability and drug abuse” as a reason.17 I was interested in learning more, so I attended the trial. After viewing a video statement from the victim, I found out that she said the defendant’s lawyer had asked her to use drugs because she “couldn’t stand being around him.”18 Because it was a matter of public interest, I felt this testimony should be heard. So, I called another member of the bar, Bruce Brown, to help me prepare the appeal.19
After reviewing the evidence, I wrote our brief, arguing that Thompson was guilty of violating the drunk-driving statute. I also explained the burden of proof, stating that there was insufficient forensic evidence to make a final determination on whether Thompson’s drinking behavior was intentional or not.20 I argued that Thompson would not have violated the law if he had known he could drive legally (because they could see it happening) because he was well aware of the consequences of using illegal substances, had been given ample warnings by a police officer, was mentally healthy, and voluntarily went to seek treatment after being stopped in Los Angeles, California, after consuming large quantities of marijuana and hashish in 1993 (which helped show his cognitive abilities).21 On the evening of October 4, 1994, while Thompson drove home after leaving work, he crashed his car into a stop sign and struck a tree.22 The jury later found him guilty of DUI (driving under the influence of alcohol), manslaughter, aggravated assault, second-degree arson, and resisting arrest.23 Based on this evidence, I made the following arguments: First, Thompson was fully involved in the crash because he was driving the vehicle at the time. He is responsible for all injuries found in the wreckage. Second, Thompson was intoxicated at the time of the accident and was driving the vehicle while under the influence of alcohol. Third, Thompson’s age of thirty-seven years at the time of the incident; he was “a young adult of normal intelligence, who should have been able to differentiate the degree of intoxication from the use of drugs.”24 Instead, Thompson knew he was driving under the influence of alcohol, and had not been aware he was committing a crime.25 In a sense, his actions were involuntary, whereas his age at the time of the incident indicated voluntary activity and the likelihood that he could have used that knowledge later when making plans for his future.26
I believe these arguments are strong enough to support the conviction of Ernest Thompson III.27 Based upon the facts and circumstances of my involvement in the issue, I have little doubt that I would have been found in accord with the opinion of Judge Morris M. Berman, Jr., who wrote in his concurrence that “this judge was too sympathetic to find merit in Thompson’s defense.”28 In my opinions, Thompson was innocent of the charges, and his innocence was affirmed in a unanimous three-to-two vote by the majority verdict of the district court.29 Therefore, I feel confident that he will indeed serve prison time as required.30 My view on this decision has grown in recent years as I have studied the historical development of this administration of justice.31 I have examined the roles of prosecutors and the U.S Supreme Court over the past 50 years.32 What I have realized is that they are fundamentally different entities. Prosecutors must determine guilt or innocence solely on the basis of circumstantial evidence.33 Those charged with prosecuting offenders often lack the technical capability to properly prove their cases.34 Conversely, the Supreme Court requires higher standards for proving innocence.35 Courts also require higher standards for identifying false evidence of guilt.36 Judges must have substantial experience with criminal cases in order to conduct proper trials and make informed decisions.37 Without adequate training, prosecution attorneys can make mistakes that could lead to the acquittal of defendants in certain situations.38 Given these factors, I am convinced that the decision to convict Thompson as a DUI offender was right in the end.