Professor Kerr says we should forgive the prosecutors because “they all do it.” This is hardly appropriate and a slur on the many professional federal and state

Professor Kerr says we should forgive the prosecutors because “they all do it.” This is hardly appropriate and a slur on the many professional federal and state prosecutors who do not engage in these kind of tactics. The fact of the matter is that in the United States a trial over a supermarket slip and fall is more fair than a federal criminal trial. Federal trials are trials by ambush. A defense lawyer has no opportunity to depose the witnesses against his client and usually only learns of their identities after the jury is empanelled. There is no way to determine if the witness has lied in the past or has reason to tailor his testimony to the prosecution’s case. The war on defense attorneys in the 1980’s was successful. Now almost all federal defense attorneys are underfunded public defenders or panel attorneys. The prosecutor has the resources not only of his own office, but of investigative agencies as well. Panel attorneys have no one and not only that, often have to finance the defense out of their own personal funds. It is a pleasure to try a case against a federal prosecutor who is fair and does not game the system. Based on the comments from Swartz’ defense attorneys, that was not the situation in Ortiz’ office.