The prosecutor's pledge

EMORY Buckner, an innovative, principled trial lawyer, architect of the modern big-city law firm, was the finest litigator of his generation and a world-class epicure. Notwithstanding Prohibition, Mr. Buckner had, even as late as 1925, amassed an epic collection of wines and liquor, all entirely against the law. The illegality troubled Buckner, private citizen, not at all. He regarded temperate comsumption of potable alcohol as one of life's boons. Moreover, he believed Prohibition to be unwise, unnecessary, and (above all) unenforceable.

In 1925, Calvin Coolidge appointed Buckner the United States attorney for the Southern District of New York, a post whose duties perforce included drying up the country's ``wettest'' city.

Squarely facing the conflict between his personal habits and the law he would have to enforce, Buckner arranged a pre-swearing-in party at which his guests helped him pour his entire private stock, bottle by bottle, directly down the sink.

More significantly, Buckner, having enlisted a team of New York's outstanding young lawyers, insisted that every man promise not to consume alcohol while in government employ.

Buckner himself, as he publicly admitted, went on the wagon for the first time in his life. Indeed, as Martin Mayer, his biographer, points out, even when Buckner took vacation trips to a staff member's summer home in Canada, he remained steadfastly abstinent.

Why did Buckner undergo this penance? Why did his young associates accept total temperance? Plainly the reason transcended simple distaste for liquor and fervent prohibitionism. Indeed, entirely apart from his personal imbibitory proclivities, Buckner thought Prohibition to be a law-enforcement nightmare.

The answer is that each of them had sworn to uphold the law: all the law, not merely that portion whose wisdom or aims they approved.

They realized, as Felix Frankfurter (himself a one-time assistant district attorney) said in eulogy after Buckner's too-early death, that ``he who wields the instruments of justice wields the most terrible instruments of government.''

That is a fact not especially well known. Most people think that judges, because of the great latitude in the sentencing process, control the administration of criminal justice. They forget that as to the more fundamental question, ``Who shall stand trial at all?'' the answer comes not from the bench but from the prosecutor's office.

Whether the sign on that office reads ``United States Attorney,'' or ``State's Attorney,'' or ``County Attorney,'' or ``District Attorney,'' the prosecutor owns a virtually limitless discretion to decide who must face the terrible ordeal of accusation and trial.

So long as the evidence reaches a minimal threshold level, no one but the prosecutor can prevent a case from going forward.

Conversely, no matter how strong a ``case'' the police have developed, no one, certainly not a judge, can force the prosecutor to carry on a prosecution.

Given this absolute power, prosecutors today might be well advised to adopt Buckner's attitude, and to adapt his principle to present conditions and to the assistant prosecutors, those lawyers who, on a daily basis, ask juries to convict, and judges to sentence, drug offenders. At a time when some US senators and many police departments require actual drug tests, the proposal is hardly revolutionary.

I am not suggesting that drug use among prosecutorial staffs is prevalent. But I am urging the benefit of a gesture that symbolically demonstrates prosecutorial fairness, the assurance that the prosecutor is not patronizing the same type of merchant against whom he has publicly declared war.

It was true in the days of Prohibition, and it is true in these days of marijuana, Valium, amphetamines, and cocaine: A prosecutor is not just another member of the bar. He must have, to quote Frankfurter again on Buckner, ``an almost priest-like attitude toward his duties.'' The public is entitled to no less.

Hiller B. Zobel sits on the Massachusetts Superior Court.

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