The myth of good faith in our legal system

When I was a young man learning the law, I was taught about the "good faith" in which all public officials are always and forevermore presumed to be acting. This presumption, this so-called "implicit covenant," is an axiomatic cornerstone of both civil and criminal law. And why not? Our courts are busy enough these days without requiring judges to peer into the motives and the biases of the parties moving through our justice systems.

What a tidy but self-defeating fiction the "good faith" presumption has revealed itself to be over my 25 years in the law. The more I study criminal justice, the clearer it is to me that public officials on every level of our justice system are wholly unworthy of the benefit of the doubt the law ascribes to their actions. To even say this, I realize, is to cross some sort of decorous boundary that proper lawyers and judges are still conditioned to observe. But here we are. I am no longer a believer in the presumption of "good faith." I've simply seen too much evidence of bad faith.

My epiphany on this has come rather recently, I'm afraid to say, in just the past few years, as I have covered some of the worst excesses of capital punishment in America. State officials who are supposed to be neutral functionaries when it comes to crime and punishment instead reveal themselves to be unrepentant, unremitting, unconscionable agents of death. Judges who are sworn to uphold the Constitution instead lean over backward to justify and implement unjust, unconstitutional results.

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Where is the "good faith" Texas officials are presumed to have shown Jerry Hartfield, a man who has languished in prison for 34 years (and counting) even though he is under no conviction or sentence? Where is the "good faith" shown to Justin Michael Wolfe, a Virginia man whose prosecutors cheated twice to secure a conviction and death sentence against him? Did Missouri officials act in "good faith" when they executed Herbert Smulls in January four minutes before the United States Supreme Court had finished considering his case? How about Sheriff Joe Arpaio, of Maricopa County in Arizona? For how many decades has this public servant acted in relentlessly bad faith to the detriment of his constituents?

This is a case that clearly falls under Atkins. One would think that in the exercise of their "good faith" obligations to respect Supreme Court precedent, Georgia officials would simply permit Hill, a convicted murderer, to spend the rest of his addled life in prison without parole. But that's not what is happening. In their zeal to execute Hill, Georgia officials for years now have contorted law and logic. The doctors (including state experts) are supposedly wrong. The IQ tests are inconclusive. The defense lawyers are sketchy. The issues were raised too late. The guy's a murderer. Georgia has made all of these arguments, over and over, to any judge who will listen, all in the name of exercising its "good faith" obligations to kill Hill.

Georgia wants to execute this mentally disabled man so much, in fact, that state prison officials last year pushed through an odious law that keeps basic lethal injection information secret even from the state's own judiciary. This law was passed at the request of the state Department of Corrections without any meaningful debate or honest evaluation of its merits or its likely impact on capital defendants. State officials now say the law was designed to protect the identity and livelihood of the suppliers of the lethal drugs they want to use on Hill. But there was no discussion of that concern in the few minutes the topic was reviewed by state lawmakers.

Of course there wasn't. There was no "good faith" here. Instead, Georgia's executive and legislative branches conspired to keep state executions secret, hidden from public view, beyond the accountability of local executioners or the purview of the state's courts. They did this because they did not want the public, or defense attorneys, or death penalty opponents, digging up embarrassing information about the origins and efficacy of the drugs Georgia wants to use to execute men like Hill. They got this law passed because they knew if they didn't they might not be able to proceed to execute the prisoners on their death row.

And what did the state judiciary do in response? Did the judges of the state of Georgia rise up and block this obvious intrusion upon their independence and authority? Did they exercise their duty to protect the rights of individuals against the power of the state? One did. The first judge to review the Georgia lethal injection secrecy law saw it precisely for what it is — a blatantly unconstitutional violation of the First Amendment and of the fair trial and due process rights of the condemned. But on Monday, the Supreme Court of Georgia, by a vote of 5-2, overturned that judge's decision and endorsed the law.

This is senseless and indefensible. Even though the law precludes Hill from getting the information he needs to challenge the injection procedure to be used to kill him, the majority decreed, the law doesn't violate his constitutional rights to assert an Eighth Amendment claim. Stephen Bright, the constitutional scholar who directs the Southern Center for Human Rights, put it best Tuesday when he said that the Georgia High Court was willing to risk tragedy to avoid embarrassment.

I was taught that it was bad legal reasoning, not to mention poor manners, to challenge the motives or "good faith" of public officials. I see now that I was taught wrong. The death penalty in America, indeed the entire criminal justice system, is worthy of trust and respect only to the extent that the men and women running it act honorably and in good faith, even if it means they take positions with which they do not personally agree. Think here of John Roberts' famous "umpire" analogy. Now imagine that umpire calling only balls for one team and only strikes for another. The truth is that our justice systems are full of men and women acting in bad faith under color of law, and it's time we all stopped pretending this isn't so.

**Embedded Photo: (AP Photo/Georgia Dept. of Corrections)**