Mimesis Law
16 November 2018

Judge Kopf Crosses (Crossfires?) Fault Lines

Nov. 11, 2015 (Mimesis Law) — In his absolutely superb law review article, a piece that every prosecutor and criminal defense lawyer should study hard, the brilliant judicial realist Alex Kozinski writes in regard to a prosecutor’s duty under Brady and otherwise that:

[A]s 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.

Alex Kozinski, PREFACE[:] Criminal Law 2.0, 44 GEO. L.J. ANN. REV. CRIM. PROC iii, xxii (2015).*

This is not the time or place to list and discuss the many insights provided by Judge Kozinski. It is enough to say that I agree with many of his assertions and many of his suggestions.

Moreover, for people who dislike judicial bull shit, you will appreciate the judge’s candor and bluntness even if you disagree with some or all of what he writes. For example, the judge recommends the establishment of independent prosecutorial integrity units.  He writes: “In my experience, the U.S. Justice Department’s Office of Professional Responsibility (OPR) seems to view its mission as cleaning up the reputation of prosecutors who have gotten themselves into trouble.” Id. at xxxii.  He wryly suggests: “Move OPR to the Department of Agriculture . . . .” Id.

Enough already with the praise for Kozinski.

I am interested here in his assertion that:

“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.”

The readers and writers of this “blog” tend to be hard on cops and prosecutors. In fact, many are savagely tribal in this regard. So what I am about to ask requires intellectual honesty. Are you up for that?

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.

Richard G. Kopf
Senior United States District Judge (District of Nebraska)

*While you are at it, read DOJ’s response.

11 Comments on this post.

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  • Scott Jacobs
    11 November 2015 at 9:08 am - Reply

    No.

    But then again, I’m a cynic…

  • Chad atwell
    11 November 2015 at 9:14 am - Reply

    Yes

    But if you have 20 Ausa’s in a district and the one handling drug cases is the exception, then you see how it is not so clear cut. 90% of the cases would reside with the exception.

  • Eva
    11 November 2015 at 6:18 pm - Reply

    I really don’t know. I read some pretty bad things about this kind of misconduct, maybe what I’ve read is the tip of the ice burg as to what really goes on.

    It is a serious situation to have an actual judge indicate “independent prosecutorial integrity units” to address this issue of apparent misconduct.

    If anyone would know about this process it would be a judge.

    I really hope that his advice is advanced to be part of this whole legal process. I believe also it would be good that those “independent prosecutorial units” be reviewed periodically to make sure this process is at the very least addressed in in the manner that was intended. (that’s if it has not been proposed already).

  • MoButterMoBetta
    12 November 2015 at 4:00 am - Reply

    No.

    In many cases the judge has no way to know if a prosecutor is being forthright unless it is brought to their attention. If a prosecutor withholds Brady materials; or doesn’t mention if a witness is compensated, given other consideration or threatened; or if the police withhold information from the prosecutor, how is the judge to know?

    How many prosecutors had judges approve pen register/trap and trace court orders and then secretly use a Stingray or other brand/model of IMSI-catchers. Were those prosecutors forthright when getting the order signed by explaining how data on dozens or hundreds of other cell phones would be captured? Were those prosecutors forthright in identifying that they could intercept the content of calls, even though they were not applying for a wiretap warrant?

    Sincerely,
    MoButterMoBetta
    Senior United States Internet Commenter (District of Nunya Business)
    “Savagely tribal on cops and prosecutors”

  • S. Cross
    14 December 2015 at 8:14 am - Reply

    Then again, according to Kozinski, judges (that is, all except him!) are compulsive liars. Hmmmmm….

    AK exudes the kind of brutal candor you won’t find in the average judge, who is more interested in protecting the reputation of our shameful system than fixing it. With Judge Posner, they are what little is left of the conscience of our courts.

    Everyone in the system can be counted on to be dishonest when it matters. Judges get the easy cases right, but whenever a decision affects them personally, they excel at being disingenuous. Prosecutors play it straight when they have solid cases, but the desire to win at all costs causes them to withhold exculpatory evidence. Cops are as honest as the day is long in Fairbanks this time of year, except in cases where the defendant’s guilt is indisputable. But at the appellate level, in those rare cases where AK actually has interaction with them (well over 90% of appeals are decided by staffers, and unpublished decisions are rarely read), prosecutors have little choice but to play it straight. By contrast, judges often take indecent liberties with the law at the appellate level because they can.

    Obergefell is a prime example. Justice Scalia likes being our ruler so much that he is willing to work for free, but Heaven forfend that he isn’t one of the five lawyers in robes doing the ruling. The Court’s most petulant toddler routinely flings his legal porridge at the wall in his epic tantrums, setting a standard that most three-year-olds can only aspire to.

    For these reasons, I submit that both of his statements are mostly true.

  • Larry
    19 December 2015 at 10:24 am - Reply

    Judge Kopf: “The readers and writers of this “blog” tend to be hard on cops and prosecutors. In fact, many are savagely tribal in this regard. So what I am about to ask requires intellectual honesty. Are you up for that?”

    Talk about being savagely tribal! We’ll never get intellectual honesty out of a judge when it comes to his propensity for protecting The Tribe. Care to prove me wrong?

    Cops will say anything on the stand. To the DoJ, the Berger case is an undiscovered country. If they have an airtight case, they’ll be honest. If not, you can count on them to be dishonest.

    The same can be said about federal judges. If the case is easy (e.g., Driscoll v. Homosexuals), the decision will be both erudite and concise. But if they can’t defend their position, they will haul in bull shit by the truckload.

  • Tom Crane
    1 January 2016 at 12:41 pm - Reply

    Sure, they are. I work with federal prosecutors on occasion in civil cases. Civil cases are different, but sure, i have found AUSA’s generally decent lawyers and decent persons. But, having served some 28 years in the Reserves and National Guard, I have also seen cops and prosecutors in a different context. In the military context, we form friendships on a different basis than in our civlian jobs. So, I probably have different expectations when I encounter these folks in the civilian world.

    • Richard G. Kopf
      4 January 2016 at 4:39 pm - Reply

      Tom,

      Sorry for the late reply. I was having so much fun giving my kids coal that I forgot to check more closely.

      I agree with you that our experiences shape our perceptions. Out here in flyover country people are nice, and that goes for most lawyers as well. Same for cops. As a result, I tend to project my experiences too far beyond my little corner of the world.

      Thanks for taking the time to write. All the best.

      RGK

  • Late Responder
    11 March 2016 at 6:15 pm - Reply

    Judge Kopf, I hope you still see or read this.

    Here is a late reply:

    In MA: No. Just google AUSA Jeffrey Auerhahn. He is still with the DOJ. His non-disclosure of exculpatory Brady material led to a man serving nearly 20 + years in federal prison and ultimately a 100 plus million dollar civil lawsuit payout by the DOJ/FBI….AUSA Auerhahn didn’t even lose his license. He is still prosecuting. The US Attorneys Office in MA is vicious. Brady/Giglio forget about it….

    In CT: There are more crooked AUSAs in that office than perhaps any other US Attorneys Office in the country. They go out for blood from anyone and everyone and they cut deals with people that they know or who are close to their inner circle, like former prosecutors who steal money. Just check former AUSA Harold James Pickerstein.

    In NY: The SDNY and NDNY has their fair share of sharks. The EDNY is a bit better but only because the judges takes their Prozac before coming to work.

    Unfortunately, I think it really comes down to how much press a case gets. The bigger the story the more compelled prosecutors appear to be to win than to do justice. Same way judges are more interested in avoiding egg on their face than getting it right…

    • Richard G. Kopf
      12 March 2016 at 8:40 am - Reply

      Late responder,

      Thanks for the response, even though you say it is “late.” As I read your comment, one thought kept coming back. DOJ should become much more transparent in this area.

      If federal prosecutors are disciplined, it would be good if DOJ provided a list of them including their names, “offense,” the date of occurrence, the court where the offense took place, the nature of the discipline or punishment imposed and the present employment status with the USA or with the DOJ. The list should be provided annually.

      Public shaming can be an effective tool. That is particularly true in the age of the internet.

      Thanks for writing. All the best.

      RGK

      • Late Responder
        14 March 2016 at 9:48 pm - Reply

        Thanks for the response. Since you just recently started to get interested in lying cops, I urge you to look up the AUSA Jeffrey Auerhahn case. Judge Wolf got so pis**d with the lack of response by the OPR that he referred the AUSA to the local Bar, which issued a probable cause and presented to a panel of 3 district judges (the judge’s colleagues) who then ruled in favor of the prosecutor and left the judge with egg on their face. Of course the Bar then appealed the case to the 1st Circuit, which then dismissed the appeal on the grounds that the Bar, which had investigated and issued the presentment, did not have standing because it was not a party to the case. The guy survived based on technicalities without any discipline on his record. In a separate civil case though the DOJ ponied up more than $100 million, which was upheld by the 1st Circuit.

        A good starting point would be to allow local grievance committees or a federal grievance committee to accept grievance complaints and hear them just like they do against normal/regular attorneys. If you leave it up to a judge, that’s too much.

        Shaming can be an effective tool (for defendants as well and much better than long prison sentences), but prosecutors have an aura of invincibility and “do-no-wrong”….they are “serving” the public. Until prosecutors are treated as equals with their fellow attorneys, they’ll always act uppity and even federal judges are powerless to put them in their place. Even you cant do anything about an uppity federal prosecutor, just try it….you’ll get no where.

        PS. I would have posted the links on the AUSA mentioned above but I am not sure about the link policy here but it comes right up on the first page of Google.