Judge Alex Kozinski on Prosecutorial Misconduct

Judge Alex Kozinski of the U.S. Court of
Appeals for the 9th Circuit, (official photo).

Did the government react in horror at having been caught with its hands in the cookie jar? Did Justice Department lawyers rend their garments and place ashes on their head to mourn this violation of their most fundamental duty of candor and fairness? No way, no how. Instead, the government argued strenuously that its ill-gotten conviction should stand because boys will be boys and the evidence wasn’t material to the case anyway.
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Eugene Volokh in the Washington Post offers remarks on the most American of derangement and inhumanity: the Police-prosecutor state.

Prosecutors from the United States Attorneys' offices to county district attorneys to municipal attorneys' offices are left unchecked with near-absolute power to cite with civil citations, prosecute, financially ruin and destroy lives under the color of law.

This near-absolute power does tend to corrupt nearly always.

Critical reading; notes Volokh:

... I began serializing “Criminal Law 2.0,” a new article by Judge Alex Kozinski — for whom I clerked 20 years ago, who is one of our nation’s most prominent appellate judges and has long been seen as on balance a libertarianish conservative (appointed by President Ronald Reagan). The introduction gave 12 reasons to worry about our criminal justice system; Wednesday’s post discussed wrongful convictions; yesterday’s post discusses the jury system, and ways to improve it; today’s post discusses prosecutorial misconduct; and I’ll post other parts of the article in the days to come. I’ve added some paragraph breaks and removed the footnotes (which are available in the PDF version), but otherwise this is as Judge Kozinski wrote it. [Writes Kozinski]:

Prosecutors hold tremendous power, more than anyone other than jurors, and often much more than jurors because most cases don’t go to trial. Prosecutors and their investigators have unparalleled access to the evidence, both inculpatory and exculpatory, and while they are required to provide exculpatory evidence to the defense under Brady, Giglio, and Kyles v. Whitley, it is very difficult for the defense to find out whether the prosecution is complying with this obligation.

Prosecutors also have tremendous control over witnesses: They can offer incentives — often highly compelling incentives — for suspects to testify. This includes providing sweetheart plea deals to alleged co-conspirators and engineering jail-house encounters between the defendant and known informants.

Sometimes they feed snitches non-public information about the crime so that the statements they attribute to the defendant will sound authentic. And, of course, prosecutors can pile on charges so as to make it exceedingly risky for a defendant to go to trial. There are countless ways in which prosecutors can prejudice the fact-finding process and undermine a defendant’s right to a fair trial.

This, of course, is not their job. Rather, as the Supreme Court has held, '[A prosecutor] is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.'

All prosecutors purport to operate just this way and I believe that most do. My direct experience is largely with federal prosecutors and, with a few exceptions, I have found them to be fair-minded, forthright and highly conscientious.

But there are disturbing indications that a non-trivial number of prosecutors — and sometimes entire prosecutorial offices — engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.

Prosecutorial misconduct is a particularly difficult problem to deal with because so much of what prosecutors do is secret. If a prosecutor fails to disclose exculpatory evidence to the defense, who is to know? Or if a prosecutor delays disclosure of evidence helpful to the defense until the defendant has accepted an unfavorable plea bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they know to be liars, or if they acquiesce in a police scheme to create inculpatory evidence, it will take an extraordinary degree of luck and persistence to discover it — and in most cases it will never be discovered.

There are distressingly many cases where such misconduct has been documented, but I will mention just three to illustrate the point. The first is United States v. Stevens, the prosecution of Ted Stevens, the longest serving Republican Senator in history.

Senator Stevens was charged with corruption for accepting the services of a building contractor and paying him far below market price — essentially a bribe. The government’s case hinged on the testimony of the contractor, but the government failed to disclose the initial statement the contractor made to the FBI that he was probably overpaid for the services. The government also failed to disclose that the contractor was under investigation for unrelated crimes and thus had good reason to curry favor with the authorities.

Stevens was convicted just a week before he stood for re-election and in the wake of the conviction, he was narrowly defeated, changing the balance of power in the Senate. The government’s perfidy came to light when a brave FBI agent by the name of Chad Joy blew the whistle on the government’s knowing concealment of exculpatory evidence.

Did the government react in horror at having been caught with its hands in the cookie jar? Did Justice Department lawyers rend their garments and place ashes on their head to mourn this violation of their most fundamental duty of candor and fairness? No way, no how. Instead, the government argued strenuously that its ill-gotten conviction should stand because boys will be boys and the evidence wasn’t material to the case anyway.

It was only the extraordinary persistence and the courageous intervention of District Judge Emmet Sullivan, who made it clear that he was going to dismiss the Stevens case and then ordered an investigation of the government’s misconduct that forced the Justice Department to admit its malfeasance — what else could it do? — and move to vacate the former senator’s conviction. Instead of contrition, what we have seen is Justice Department officials of the highest rank suffering torn glenoid labrums from furiously patting themselves on the back for having 'done the right thing.' ...

I have never heard a prosecutor of any variety say of the wrongfully convicted, the wrongfully fined: Something must be done, an innocent has suffered.