Justice O'Connor: Universal Merit Selection; Interchangeable Prosecutors & Defense Attorneys

Sandra Day O'Connor has been pretty outspoken since she stepped down from the bench, God bless her.

In a recent conference she extolled merit selection for judges -- not exactly a controversial topic to anyone but far-right Foghorn Leghorn types, but a Good Thing nonetheless. But she goes on to suggest that the artificial dividing line between prosecutor and defense attorney be done away with. She proposes that we follow the example of the English (and other European countries), where attorneys fill both roles. One of the chief causes of prosecutorial abuse -- the U.S. attorney scandals, the Duke rape cases, the Genarlow Wilson case -- is politics. Removing politics from the election of judges has given us better judges. If we remove politics from the prosecutor's office, might it not give us better criminal trials (i.e. fewer reversals, fewer habeas petitions, less taxpayer money)?

My note touched upon this issue briefly in the context of the French system. European countries tend not to view the criminal justice process in such stark, adversarial terms. Whether this has truly led to a reduction in prosecutorial abuse in those countries is something I'm not prepared to say. (And there are plenty of other things that go on in French courtrooms that would make us uncomfortable, to say the least.) But Justice O'Connor raises a fascinating issue that should be openly discussed.