If you could look beneath the blindfold worn by Lady Justice, would her eyes be closed? One of the nation’s most influential judges suggests she would be giving a wink to prosecutors seated across from the defendant.
In the latest issue of Georgetown Law Journal, Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals turns a critical gaze toward America’s criminal justice system. It’s a long piece — part diagnosis of ailments and part treatment — with a broad sweep. But one of its major themes is prosecutorial advantage, both in federal and state courtrooms.
“They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape,” writes Judge Kozinski.
Among his specific concerns is what he sees is a reluctance on the part of judges to blow the whistle on prosecutorial abuse:
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….Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights.
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.
But he says even if judges made the referrals, Judge Kozinski doubts the Justice Department has the appetite to pursue them.
“The U.S. Justice Department seems ready enough to pursue charges of civil rights violations in cases where police have engaged in physical violence, but far more reluctant to pursue misbehaving prosecutors,” he writes.
Law Blog has reached out to a Justice Department spokesman for comment.
Judge Kozinski, appointed by President Reagan in 1985 at the age of 35, touches on other issues: He calls for more “rigorous procedures for eyewitness identification.” He thinks jurors should be allowed to take notes during trial (a few judges, he says, still refuse to do so), and he favors abolishing state judicial elections, among other recommendations.
His concerns about prosecutorial practices resurface again when he talks about discovery rules.
He thinks Congress should pass a bill proposed by Republican Sen. Lisa Murkowski of Alaska in 2012 — called the Fairness in Disclosure of Evidence Act — that would require federal prosecutors to disclose any evidence “that may reasonably appear to be favorable to the defendant in a criminal prosecution.”
That’s a wider net than the constitutional obligation to share with criminal defendants exculpatory evidence material to guilt or punishment.
“The U.S. Justice Department, for example, takes the position that exculpatory evidence must be produced only if it is material,” he writes. “This puts prosecutors in the position of deciding whether tidbits that could be helpful to the defense are significant enough that a reviewing court will find it to be material.”
The Justice Department’s policy manual says it wants to avoid disclosures that deal with “spurious issues or arguments which serve to divert the trial process,” but it says it sets a higher standard in at least two respects: requiring disclosure of information “that is inconsistent with any element of any crime charged” or that collectively with bits of other evidence reaches the exculpatory threshold.
“If the Department of Justice wants to show its commitment to justice, it should drop its opposition to the [legislation] and help get it passed into law,” writes Judge Kozinski.
A spokesman for Ms. Murkowski said her office is considering re-introducing a version of the discovery standards bill this congressional session.