Mimesis Law
14 October 2019

A Hit Dog Hollers; Just Like The Department of Justice

Nov. 24, 2015 (Mimesis Law) — Judges don’t like to call out prosecutors for misconduct. Except for Alex Kozinksi. Kozinski, of the United States Court of Appeals for the Ninth Circuit, has been pissing prosecutors off for the last few years with his insistence on complaining about prosecutorial misconduct and discovery abuse. Over the last few weeks, the Department of Justice has fought back. Well, talked back at least.

Judge Kozinski wrote the preface for the Georgetown Law Journal’s 44th Annual Review of Criminal Procedure. The book collects and summarizes court decisions from the Supreme Court and federal courts of appeals. Kozinski’s preface goes through some of the flaws he finds in our justice system.

The one that has drawn the ire of the Department of Justice is Kozinski’s observation that prosecutors don’t play fair. His primary complaint involves prosecutors’ failure to observe their Brady disclosure obligations. Brady is a pretty simple concept. If the prosecutor has information that could help the defendant in some way, he should give it to the defendant and his attorney.

For such a simple concept, Brady seems to present a real problem for prosecutors. This can be pretty annoying to defense attorneys. But no one really cares what they think. Kozinski has a much larger bully pulpit as a federal appellate judge. As a notorious judicial troublemaker, he gets a lot of attention. So having him annoyed at your misbehavior is not fun.

Kozinski did not generally bitch about prosecutors. He wrote about specific problems and the specific effects those problems have on the American criminal justice system. Kozinski recognized most of his experience was with federal prosecutors and that he finds them generally “fair-minded, forthright and highly conscientious.” While some may disagree with his opinion, he does not seem particularly harsh on prosecutors.

Instead, Kozinksi seems concerned about a “non-trivial” number of prosecutors and their misconduct. He cites a number of problems, but concentrates on three cases to demonstrate his criticism of prosecutorial misconduct. The three cases have two threads that are the common denominator in most Brady violations.

Most Brady violations occur in secret. The prosecutor, or law enforcement, typically has sole control over information that should be released. In the same vein, they are the only person who can decide whether information should be turned over. When they decide not to release the information, no one knows. It becomes nearly impossible to correct this type of misconduct and it’s often only fixed through sheer luck in discovering something that should have been turned over.

The second thread is the dogged determination of the government to avoid admitting wrongs. Even in the face of compelling evidence of a wrongful conviction, prosecutors will go to great lengths to fight its correction.

Kozinski points out these problems. He cites examples and offers solutions. He is relatively polite about it. Probably more polite than some of the victims of the described misconduct might be.

Federal prosecutors, who Judge Kozinski actually described in glowing terms, took offense at the fact they are not considered infallible by the Judge. And in the last few weeks, they have made their hurt feelings known.

Andrew Goldsmith, National Criminal Discovery Coordinator at the Department of Justice, and John Walsh, United States Attorney for the District of Colorado, wrote a letter to the Georgetown Law Journal expressing their displeasure with Kozinski’s contribution to the journal. Rather than take the opportunity to join in Kozinki’s call for a more careful justice system, Goldsmith and Walsh demonstrated a stunning lack of awareness about what they do and how often it goes wrong these days.

Goldsmith and Walsh start their complaints about Kozinski by writing:

He took aim at the types of evidence used to secure convictions and the people who collect, present, and analyze this evidence on its way from the crime scene to the jury room. In doing so, he sought to deflate the supposed infallibility of various aspects of our criminal justice system: not just eyewitness testimony, forensic evidence, and confessions, but also the work of law enforcement officers, prosecutors, and jurors.

So at the outset they are upset at Kozinski pointing out the fallibility of … fallible things. Eyewitness testimony, forensic evidence, and false confessions can all contribute to wrongful convictions. It’s okay to not be okay with that. But Goldsmith and Walsh really didn’t like Kozinksi questioning their colleagues:

While the preface raises several points that merit discussion, such as the reliability of certain

forms of evidence, Judge Kozinski goes too far in casting aspersions on the men and women responsible for the administration of justice in this country. His preface seemed to question not only the integrity of our agents and prosecutors, but also the government’s capacity to self-correct in the (very small) minority of cases when someone falls short.

According to these two, there is a culture in the Department of Justice of complying with discovery obligations and trying to do the right thing. In fact, they claim the policy at DOJ is:

When we are wrong we will admit our errors. When we see an affront to justice, we will rectify the problem.

This statement is not quite true. The Department of Justice typically doesn’t admit its errors or work to correct them without court intervention. The letter claims, of Kozinki’s cited cases of prosecutorial misconduct, there are only two cases of deliberate misconduct in 15 years. The letter contrasts those two cases with 80,000 cases a year in order to convince the public (and themselves) that there really is no problem.

This is, of course, gaming the numbers to make a problem look as small as possible. DOJ’s claim has glaring problems. Judge Kozinski wasn’t singling out federal prosecutors. In fact, he seems pretty generous towards them. He included state and federal cases in his criticism as a demonstration it is not a particular system. He also made no claim this was an exhaustive list of problem cases.

Indeed, there are far more cases than the few Kozinski discusses that demonstrate an issue with the prosecution disclosing favorable evidence. And when the evidence comes to light, the DOJ rarely admits to the problem. Instead they argue the evidence wasn’t important, wasn’t available, wasn’t in their specific office, didn’t affect the outcome of the case, or could have been found by the defendant on his own. And the courts are usually cool with any of those arguments. Because once somebody is convicted, the courts hate to unconvict them.

The idea of willful misconduct is a red herring. Courts hate to call out prosecutors, so looking at their opinions on what was or wasn’t willful is of little use. But more importantly, the guy sitting in his jail cell because the jury didn’t hear the whole story is sitting in that jail cell regardless of whether the hiding of evidence was willful or not.

Last week, an even higher-ranking official at the Department of Justice upped the ante in defending against these untoward accusations of prosecutorial misconduct. Deputy Attorney General Sally Yates, the head of all federal criminal prosecution in the United States, addressed the National Prosecution Summit and stuck to the party line that prosecutors seem to spend most of their time hunting down evidence to help the defendant get his fair trial:

The prosecutors I know don’t play hide the ball or look to read their discovery obligations as narrowly as possible.  In fact, just the opposite is true.  As I watched prosecutors in our office agonize over whether they had tracked down every possible shred of exculpatory evidence or impeaching evidence, I often wished the public could see the lengths they went to ensure that they didn’t just meet their ethical obligations, but that they exceeded them.

So DOJ’s feelings are hurt. And they are responding to Kozinksi with indignation at his accusations. Which is insulting, because Kozinski was about as reasonable as one could be in pointing out his concerns with the criminal justice system. More importantly, the response from these high-level prosecutors is telling.

They don’t actually deny the problem, they create a decoy argument. Sure, there are probably a lot of prosecutors that work very hard to make sure they meet their obligations. In fact, that is exactly what Kozinski meant when he called them “fair-minded, forthright and highly conscientious.” But that doesn’t mean there aren’t some that aren’t. And the enormous amount of power wielded by prosecutors, and especially federal prosecutors, means there is no minimum number of bad apples we should accept.

The Department of Justice had an opportunity to get on board with Judge Kozinksi and help with this problem. It could have committed to turning over every piece of evidence or information related to a case, regardless of whether it thought it was material or might hurt the chances of a conviction. It could have taken a hard line on what will happen to prosecutors who fail in their obligations. Most importantly, it could have committed to not fight tooth and nail against defendants who want a new trial with all of the information they should have had the first time around.

Instead, they got their feelings hurt and started hollering. They defend, distract, and deny.

If the Department of Justice is not going to be part of the solution, then the Department of Justice is part of the problem.

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