Mimesis Law
23 February 2020

Asked and Answered: A Reply To Judge Kopf

Nov. 12, 2015 (Mimesis Law) — Senior United States District Judge Richard Kopf, after a stunning display of comity toward 9th Circuit Judge Alex Kozinski, poses a challenge to Fault Lines:

Here is my question: When Kozinski writes that federal prosecutors, with few exceptions, are fair-minded, forthright and highly conscientious, is that true?

I don’t want equivocation. Is Kozinski’s assertion true? I dare you to answer the question straight up.

Yes or No.

Thankfully, it’s a dare, not an order, so I won’t have to appeal. Whew. But I accept the challenge and, without equivocation (cuz the judge don’t want none), I answer NO!

But that’s a cheap answer because of how the question was framed. Aside from being a compound question, with the inclusion of the pointed adjective “highly,” an obvious tactical mistake, together with the implication that any lawyer, even after more than 30 years in the trenches, would be capable of making an assessment of all federal prosecutors, not to mention the exception of the few who, apparently, we all concede are not “fair-minded, forthright and highly conscientious,” the long answer remains “no.”

Now, assuming the question was honed down to those assistant united states attorneys with whom we’ve engaged in litigation, a small fraction of those out there, the answer would still be “no.” The problem is that most cases don’t give rise to an opportunity to assess whether they are “fair-minded, forthright and highly conscientious.”  That can only be tested by fire, and most cases don’t raise issues of the sort where their representation of the government is more than routine.

But limited to the group with whom I’m familiar, most appear to be fair-minded, though from the perspective of a prosecutor, if not mine.  There are some who took advantage of the situation, but then, it’s a situation ripe for such matters. Do I begrudge them using what Congress and the courts hand them to unduly leverage their position?  Well, yeah. I do, sometimes. But I suspect, for the most part, they use it for well-intentioned purposes, even if misguided by prosecutorial myopia.

They tend not to be forthright, but then again, that’s because they have no reason to be forthright to me. They’re trying to play me, just as I’m trying to play them. They withhold information regularly, and tactically, as one would suspect that should.

Am I forthright with them? Well, I never lie, but that’s not what forthright means. Have I been lied to? You bet, though I expect it, so I really can’t pretend I’m surprised.  I know they feel the same way about what I say, so fair is fair, in an unfair sort of way.

But are they “highly conscientious”?  If the question was limited to conscientious, I wouldn’t say “no.” But highly?  I wouldn’t go that far. Most fall behind on their obligations to the defense, or at least they claim to. Most “miss” something that gets dumped on us at the last minute. Then again, this too could be part of conscientious, although perhaps outside the techincal rules of fair play.

The AUSAs are, as a whole, a pretty hard-working bunch. More so than, say, the defense bar as a whole, but then again, our incentive structure, duties and opportunity costs are different.  I would love, and hate, to see more highly conscientious prosecutors.

In any given case, I may be in a huge rush or desperate to slow down, as befits my clients’ needs. When I want delay, I dearly appreciate the less than conscientious assistant. It’s all relative.

But then, none of this really goes to the proposition asserted by Judge Kozinski, or the dare posed by Judge Kopf.  Are most assistant United States attorneys good guys rather than the bad guys that tend to find their names on a page at Fault Lines? Yes. And we surely hope that we are, for the most part, disparaging only the outliers, the “few exceptions.”

And yet, let’s not build a statue for the rest of them just yet.  Even if they do right on most cases, and only occasionally lose the Brady, call the lying snitch to testify, proffer junk science or do anything else that amounts to prosecutorial misconduct, it’s really not good enough to make this system work. It’s not wrong to expect better of the government. That’s why government exists. That’s what gives the government sufficient integrity to ask a judge to impose sentence on a defendant for doing wrong.

How many low balls are prosecutors entitled to throw?  How many times can they say “oops” and still be forgiven?  And that’s only the “few exceptions” we know about.  So my answer is “no,” which doesn’t make them all sinners, but doesn’t make them saints either.

I would be remiss, however, if I failed to note the spectacular integrity of former SDNY AUSA Elizabeth Martinez, who is as honest and upstanding as any person I’ve ever known. When she walked off a case because she learned her agents were lying, it was an act of bravery. Shame that her case was taken over by Mary Lee Warren, who went on to try (and lose) the case, and was rewarded by a promotion to Main Justice.  And for that reason alone, I would answer “no.”


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