Sherlock Holmes vs. Jack McCoy

Anyone familiar with Arthur Conan Doyle's Sherlock Holmes stories, or the excellent television adaptations starring Jeremy Brett, knows that Holmes, who was a private consulting detective, sometimes let the guilty off the hook and go free. Sometimes out of pity, sometimes because the crime was morally justified. Sometimes going to the police for arrest and prosecution seemed like more trouble than it was worth, and didn't really advance the cause of justice.

A Law and Order episode I saw last night helps one appreciate Holmes' prudence all the more. A recently-paroled violent felon, a gang member, is found dead. The investigation leads to a prison guard as the primary suspect: he shot the ex-con because he had legitimate fears the ex-con would go after his family. One of the investigating cops, played by Dennis Farina, raises objections and wants to give the prison guard the benefit of the doubt. It appears to me he would rather leave the case "unsolved."

But the arrest and prosecution, led by Sam Waterston's Jack McCoy character, proceeds. As the suspect and his motive are made known, this places the suspect's family in even greater jeopardy. Had the police just attributed the murder to a gang hit or drug deal gone bad, the victim's gang may well have forgotten about him and his feud with the prison guard. Because of the arrest, the feud escalates.

This is not to say the prison guard was justified in killing the parolee. Similarly, not all of the guilty people Holmes showed mercy to were "deserving" of that degree of mercy. But if the sense of the police was that a) he was protecting his family, b) he is not a threat to society or someone who would normally resort to murder, and c) his victim was a threat to society and wasn't someone anyone would miss, then putting the guilty on trial and sending him to prison wasn't likely to serve anyone's interest. Except, of course, those of the police and D.A., who could maintain a high arrest-and-conviction rate. But in our flawed system, prudence tells us that, sometimes, some bad deeds should just go unpunished.

I would prefer police and prosecutors who exercised discretion and knew when to just leave well enough alone, to the zealous, "principled" kind. Because the former are likely to have a better sense of justice, instead of conflating "justice" with "the law." The role of "public servant" is to use the law to advance the interests of justice as can best be realistically attained, not to sacrifice justice to uphold the letter of the law.