Mimesis Law
21 November 2019

Why Don’t Courts Name Names? Kozinski Did

Mar. 25, 2016 (Mimesis Law) — The most innocent client, wrongfully convicted, finds his name at the top of an appellate court opinion, never to be erased. It remains Googlable in perpetuity, forcing him to explain to employers and potential romantic partners why the first page of search results about him includes a case about aggravated assault or reckless conduct.

Yet the most dastardly prosecutor, who wins case after case only by breaking the rules against weak opposition, finds himself anonymously mentioned as “the prosecutor” or “the State” in some bland recitation of the facts of the case. The worst defense attorneys, those who show up to trial and shrug at the jury, often go unnamed and unmentioned.

There’s an epidemic of bad lawyering in this country that isn’t getting fixed because courts refuse to name names. To expose to public view that one prosecutor has created “harmless error” a dozen times in a year. Or that in some dank corner of some dim state, presumptively innocent people are appointed timid, incompetent counsel incapable of quavering his way through a closing argument or a timely objection.

And why not? Because courts don’t want to diminish the majesty of our justice system by pointing out that it’s only as good as its participants, and many of those participants would be better suited to easier or less ethically demanding work.

At least one judge is trying to shine a light on this quagmire. Judge Alex Kozinski on the 9th Circuit Court of Appeals carried through on his promise from Baca to name names when prosecutors committed misconduct in Frost v. Gilbert. In Frost, despite the fact that he knew that the prosecutor’s misconduct (here, hiding the existence of a plea deal from opposing counsel) would be harmless in light of the overwhelming evidence of guilt against the defendant, Kozinski still pointed out the names of those involved, perhaps hoping that some consequences might befall them.

The dissent was outraged, of course. This was a major breach of decorum.

Ultimately, Section II C is used as a platform to offer the author’s “two-cents” on the supposed inner-workings of Washington’s criminal justice system. Along the way, the character and integrity of several public employees is tarnished. Thankfully, a majority of the court has refused to join in this indefensible and intemperate attack.

But Kozinski’s decision to name who was involved was not simply a way to attack the uncorruptible integrity of public officials. It was a way to attach consequences to prosecutorial misconduct even in those instances where a defendant is so guilty that a prosecutor can lay back on overwhelming evidence of guilt to excuse all wrongs.

The best way to lead the way is by example, and yet the worst offenders in this system of silence are often the Justices of the United States Supreme Court. Take Banks v. Dretke. Prosecutors in that case relied on two essential witnesses, yet “did not disclose that one of those witnesses was a paid police informant, nor did it disclose a pretrial transcript revealing that the other witness’ trial testimony had been intensively coached by prosecutors and law enforcement officers.”

Yet there is absolutely no way that someone reading this opinion could know who the offending prosecutors were. They are always “the State” or “prosecutors.” By failing to actually point out who had broken the rules, the Supreme Court denied other litigators the potential to point to an embarrassing opinion if those prosecutors continued to work in the same field.

Think also of those defense attorneys who take on a small appointed calendar of indigent clients as a sideline to their “real” legal practice. Study after study has shown that appointed counsel perform considerably less well than public defenders or retained private counsel. The problem is simply a lack of incentives to sink more hours into a case that will likely pay the same regardless of outcome.

But the potential reputational damage of seeing one’s name in print as the lawyer who botched an important objection, failed to follow an important investigational lead, or pleaded a client out without informing him of all the consequences might be enough to stop the Lionel Hutzes of the world from inflicting quite so much harm on those who depend on them.

Unfortunately, it may also provide more incentive to lie and claim that not investigating the case, or allowing the prosecutor to continue his argument unabated, were all part of some grand strategy. But clever counsel, with access to a legal database, would certainly have a persuasive argument that missing every important objection for the 11th trial in a row is less likely to be the product of strategic genius than legal befuddlement.

Long story short, our legal system is premised on openness. Open courtrooms. Confronted witnesses. Hopefully, some measure of mutual discovery. We must also be open about the competence, and the ethical fortitude, of repeat participants in our system.

4 Comments on this post.

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  • Chris
    25 March 2016 at 12:07 pm - Reply

    To me the downside outweighs the upside. Tradition and decorum says you make it about the law and arguments, and not about the lawyers personally. Appellate attorneys already have their names exposed on the opinions. Judges should not be encouraged to make things personal and nasty in litigation. “In one of the dumbest arguments we as a court have ever heard, counsel for the Defense implies…” Never mind that sometimes lawyers have to make arguments on behalf of their clients they don’t really agree with, for whatever reason. Likewise, why beat up on a poor civil servant (both ADAs and PDs), and discourage public service, or private lawyers helping by taking on indigent cases? Those responsible for making appointments should be paying attention, just as voters should be paying attention to who is entrusted to make the appointments. Ultimately the elected one is responsible, not his assistants.

    Maybe the State Bar can be more aggressive about “hey, maybe this guy really should NOT be practicing law” and the public and judges encouraged to report issues to the bar more often.

    All this information is public anyway, the media can report it. Sticking names in appellate opinions would do little to educate the public about what lawyer they should and should not hire anyway.

    • Andrew Fleischman
      25 March 2016 at 2:28 pm - Reply

      There is a difference between using inflammatory language or benchslapping an attorney and simply putting the name of someone who has been found to have broken the rules in an opinion. A court can, with full decorum, point out that a particular prosecutor has violated his Brady violations without any nastiness.

      The only difference is, with the name in the opinion, defense attorneys who face off against that prosecutor in the future are forewarned to be extra careful requesting discovery and can make a credible argument to judges for more access. And if an appeal comes up where the prosecutor has done it again, the defense attorney can use the other opinion to show it’s unlikely to have been accidental.

      The warning, to me, is worth the downside that some bad apples may be embarrassed.

    • Middle Aged Dog
      25 March 2016 at 8:44 pm - Reply

      Chris, you are wrong. A big part of punishment is deterrence. Prosecutors and defense attorneys generally value their reputation. They survive, they earn, they live on their reputation. Naming names does not hurt decorum. Tradition is irrelevant and is subject to time. If US appeals court opinions and district court (and state) opinions name names, it would place the most important actors on notice that they could ruin their reputation. That’s a huge incentive to play by the rules. As for educating the public, yea sticking names in the opinions helps. The public is not known for their investigative journalism.

  • Scrutiny Lost: Eric Garner Prosecutor Gets A Pass | Simple Justice
    17 April 2016 at 6:39 am - Reply

    […] That prosecutors are rarely subject to professional discipline is well-documented, and even the mention of their name by a court when impropriety is found results in howls of anger and protest.  Nothing new here. […]