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.