Judge Kozinski: “When prosecutors misbehave, don’t keep it a secret”

Alex Kozinski

This part two of Judge Alex Kozinski’s article on legal system reform and prosecutorial misconduct. Back in February, he, along with two others judges, expressed frustration and anger that California state judges were not cracking down on prosecutorial misconduct.

Prosecutors “got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way,” Judge Kozinski said.

In the latest issue of Georgetown Law Journal, Judge Kozinski unloads on the criminal justice system.

He writes, “The ‘ten guilty men’ aphorism is just one of many tropes we assimilate long before we become lawyers. How many of us, the author included, were inspired to go to law school after watching Juror #8 turn his colleagues around by sheer force of reason and careful dissection of the evidence?” he said in reference to the classic movie, “12 Angry Men.”

He argues that “much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has been undermined by experience, legal scholarship and common sense.”

Judge Kozinski writes:

When prosecutors misbehave, don’t keep it a secret. Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors. Indeed, judges seem reluctant to even suspect prosecutors of improper behavior, as if they were somehow beyond suspicion. For example, the district judge in the Kojayan case, discussed above, could have obviated the appeal and the entire sordid episode by forcing the Assistant U.S. Attorney to answer a simple question: “Did Nourian have a plea agreement with the government?” Defense counsel urged the judge to ask the question but to no avail. It was not until the oral argument before our court that the AUSA was compelled to disclose that fact:

[Q]:Was there a cooperation agreement?

A USA: Well, your honor, that is not something that’s in the record.

[Q]: I understand. Was there a cooperation agreement?

A USA: There was an agreement with the Southern District of New York and

[Nourian], yes.

Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights. In Baca v. Adams, a panel of our court dealt with a case where both the California trial court and the California Court of Appeal concluded that a prosecutor lied on the stand, but nonetheless deemed the error harmless. During our questioning, we asked the Deputy Attorney General arguing the case whether the lying prosecutor and another untruthful witness had been prosecuted for perjury or otherwise sanctioned. The answer, of course, was that they had not been. We then suggested that, in resolving the case, we would write an opinion naming those who had misbehaved and the failure of the state authorities to take any actions against them. The video of that oral argument made its way to the blogosphere and has been viewed over 24,000 times.

Not surprisingly, three weeks afterwards, the California Attorney General wrote confessing error and requesting that we remand to the district court with instructions that it grant a conditional writ of habeas corpus. The incident, by the way, illustrates the importance of providing video access to court proceedings. It is far easier to hide an injustice from public scrutiny if only the judge and a few lawyers know about it.

Judges who see bad behavior by those appearing before them, especially prosecutors who wield great power and have greater ethical responsibilities, must hold such misconduct up to the light of public scrutiny. Some of us regularly encourage prosecutors to speak to their supervisors, even the United States Attorney, to ensure that inappropriate conduct comes to their attention, with excellent results. If judges have reason to believe that witnesses, especially police officers or government informants, testify falsely, they must refer the matter for prosecution. If they become aware of widespread misconduct in the investigation and prosecution of criminal cases, a referral to the U.S. Department of Justice for a civil rights violation might well be appropriate.

On March 8, 2015, A.M. “Marty” Stroud III, a Shreveport lawyer and former state prosecutor, published a remarkable piece in the Shreveport Times reflecting on the case of Glenn Ford, who spent 30 years on death row after being convicted of murder and sentenced to death in 1984. Ford was released after the state disclosed evidence proving his innocence. Stroud offered a public apology for his conduct in the case. It is well worth reading in full, but here is the gist of it:

At the time this case was tried there was evidence that would have cleared Glenn Ford. The easy and convenient argument is that the prosecutors did not know of such evidence, thus they were absolved of any responsibility for the wrongful conviction.

I can take no comfort in such an argument . . . . Had I been more inquisitive, perhaps the evidence would have come to light years ago . . . . My mindset was wrong and blinded me to my purpose of seeking justice, rather than obtaining a conviction of a person who I believed to be guilty. I did not hide evidence, I simply did not seriously consider that sufficient information may have been out there that could have led to a different conclusion. And that omission is on me.

I did not question the unfairness of Mr. Ford having appointed counsel who had never tried a criminal jury case much less a capital one. It never concerned me that the defense had insufficient funds to hire experts . . . .

The jury was all white, Mr. Ford was African-American. Potential African- American jurors were struck with little thought about potential discrimination . . . . I also participated in placing before the jury dubious testimony from a forensic pathologist that the shooter had to be left handed . . . . All too late, I learned that the testimony was pure junk science at its evil worst.

In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning. To borrow a phrase from Al Pacino in the movie “And Justice for All,” “Winning became everything.”

What is remarkable about Stroud’s statement is not that he gained a conviction and death sentence for a man that turned out to be innocent. Or that that man spent three decades caged like an animal. That kind of thing is all too common. Nor is there anything unusual about the confluence of errors that led to the wrongful conviction—failure to uncover exculpatory evidence, inexperienced defense lawyers, race-based jury selection, junk science, and a judge who passively watched the parade and sat on his thumbs. The same goes for a prosecutorial attitude of God-like omniscience and unwillingness to entertain the possibility that the wrong man is being prosecuted. These things happen all the time in case, after case, after case.

What is unusual—unique really—is Stroud’s willingness to accept personal responsibility for the calamity he helped inflict on Glenn Ford and his family—his willingness to embrace this as his personal failure, not just an unfortunate failure of the system. Most prosecutorial attitudes run the gamut from “that’s why they put erasers on pencils” to “they must be guilty of something.” Everyone else in the system, starting with trial judges, absolves himself of personal responsibility when a heinous failure occurs. We could do with a lot less of that.

In a sense, however, the system is responsible because it places a great deal of power and responsibility in young, ambitious lawyers, like Stroud, who have every incentive to close their eyes to the possibility of innocence, to testilying by police, to bogus experts and to suggestive eyewitness identification procedures. A prosecutor certainly does not help advance his career by providing to the defense evidence that his star witness made a statement directly contrary to his testimony before the police started leaning on him—as happened in the shameful prosecution and wrongful conviction of Senator Stevens. Faced with a remote possibility of being found out, and the likelihood that nothing bad will happen even if they are, many prosecutors will turn a blind eye or worse. And that’s how miscarriages of justice happen.

Abrogate absolute prosecutorial immunity. In Imbler v. Pachtman, a divided Supreme Court held that prosecutors are absolutely immune from damages liability for misconduct they commit when performing the traditional activities of a prosecutor. Imbler was not a constitutional ruling; the Court was interpreting 42 U.S.C. § 1983. And it was certainly not a result compelled by the language of the statute; section 1983 says nothing about immunity. Rather, Imbler reflected a pure policy judgment that prosecutors needed complete freedom from liability in order to properly discharge their functions. Writing for himself and two others, Justice White would have adopted a more limited immunity rule that would have held prosecutors liable for certain kinds of deliberate misconduct such as willfully failing to disclose Brady and Giglio evidence.

Under Imbler, prosecutors cannot be held liable, no matter how badly they misbehave, for actions such as withholding exculpatory evidence, introducing fabricated evidence, knowingly presenting perjured testimony and bringing charges for which there is no credible evidence. All are immune from liability. A defense lawyer who did any such things (or their equivalents) would soon find himself disbarred and playing house with Bubba. The Imbler majority seemed reassured by the possibility that rogue prosecutors will be subject to other constraints:

We emphasize that the immunity of prosecutors from liability in suits under [§] 1983 does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law . . . . Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.

This argument was dubious in 1976 and is absurd today. Who exactly is going to prosecute prosecutors? Despite numerous cases where prosecutors have committed willful misconduct, costing innocent defendants decades of their lives, I am aware of only two who have been criminally prosecuted for it; they spent a total of six days behind bars.

There have been a few instances of professional discipline against prosecutors, though even that has been much less than against similarly-situated private lawyers. By and large, however, professional organizations are exceedingly reluctant to impose sanctions on prosecutors for misconduct in carrying out their professional responsibilities. Sidney Powell’s book, Licensed to Lie, illustrates exhaustively the futility of getting bar disciplinary boards to impose professional discipline for misconduct committed in the course of criminal prosecutions.

Despite this dismal track record refuting the bland assurances of the Imbler majority that prosecutors will be subject to other forms of control, even if damages lawsuits are not available, the Court has reaffirmed Imbler on numerous occasions. Most recently, in its unanimous opinion in Van de Kamp v. Goldstein, the Court denied compensation to the petitioner, Thomas Goldstein, who had spent 24 years in prison based on the testimony of notorious jailhouse snitch Edward Fink. Prosecutors used Fink as a utility infielder in numerous cases, and he somehow always managed to testify that the defendant had confessed. Unmoved, the Court held the prosecutors and their supervisors were all protected by absolute immunity and Mr. Goldstein can pound sand.

What kind of signal does this send to young prosecutors who are out to make a name for themselves? I think it signals that they can be as reckless and self-serving as they want, and if they get caught, nothing bad will happen to them. Imbler and Van de Kamp should be overruled. It makes no sense to give police, who often have to act in high pressure situations where their lives may be in danger, only qualified immunity while giving prosecutors absolute immunity. It is a disparity that can only be explained by the fact that prosecutors and judges are all part of the legal profession and it’s natural enough to empathize with people who are just like you. If the Supreme Court won’t overrule Imbler and Van de Kamp, Congress is free to do it by amending 42 U.S.C. § 1983.

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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  1. Biddlin

    Here is where the system fails and as Kozinski observes there is little incentive for the state to be self regulating. Recent research analyzing the causes of wrongful convictions in cases where the conviction was overturned based on new DNA evidence, found that prosecutorial misconduct was a factor in from 36% to 42% of the convictions. Stronger sanctions and properly engaged judges would go a long way to correct these wrongs. Doing away with contests winnings (grant monies for conviction rates and convictions of a specific crime) would also go a long way toward dis-incentivizing prosecutorial misconduct.


  2. Davis Progressive

    “Stronger sanctions and properly engaged judges would go a long way to correct these wrongs. ”

    yep.  kozinski reamed judges and the bar association for failing to do their oversight.

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