There have been a number of high-profile cases at the highest level of the federal court system in recent years that have left reasonably intelligent Americans wondering how the heck that conclusion was reached.

For example, the “penalties” created by the Obama administration in Obamacare, and promoted as penalties, became “taxes” under the pen of Supreme Court Chief Justice John Roberts, so they would be constitutional.

And from the same bench came the conclusion, also under Obamacare, that exchanges set up “by the state” actually meant “by the state and/or the federal government because they all do the same job anyway.”

And how about the recent “marriage” case where marriage, which the Supremes just two years earlier had declared the exclusive province of the states, suddenly became a federal responsibility, despite the fact there’s no such word in the Constitution?

Lower courts all put their hands on those cases even before they got to the Supreme Court.

Now a senior member of the federal judiciary has written a 42-page commentary on the ills in the federal court system, how many of its practices are, in fact, faulty, and one of the ways to push it for more accurate and responsible results would be to subject prosecutors who misbehave to prosecution for those crimes.

The condemnation of a number of the procedures in the federal court system, and suggestions for repairing it, comes from Judge Alex Kozinski in a writing in the Georgetown Law Journal. He’s a member of the 9th U.S. Circuit Court of Appeals.

Read the hard facts of life, from Judge Andrew Napolitano, in “It Is Dangerous To Be Right When the Government is Wrong.”

Noted legal commentator Eugene Volokh, who once worked as a clerk for Kozinski, described him as “a libertarianish conservative” and said his old boss says “some pretty harsh things about our criminal justice system.”


Kozinski reserves his strongest blasts for prosecutors, who “have unparalleled access to the evidence,” and “influence over witnesses.”

“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,” he wrote.

Those actions range from misleading the jury to “outright lying,” he said.

That could be corrected by removing the absolute immunity they have from charges for misbehavior.

Kozinski cited the federal prosecution of then Sen. Ted Stevens. He was charged a week before he stood for re-election and was defeated, “changing the balance of power in the Senate” to Democrats, at the time.

He was the longest serving Republican senator in history, and was charged with corruption for accepting the services of a building contractor and paying him far below market price – essentially a bribe.

The government’s case hinged on the testimony of the contractor, but the government failed to disclose that the contractor was under investigation for unrelated crimes and thus had “good reason to curry favor…” Kozinski wrote.

In fact, the contractor at one point had put on the record that he thought he was overpaid for the work.

Kozinski explained “the government’s perfidy came to light when a brave FBI agent by the name of Chad Joy blew the whistle on the government’s knowing concealment of exculpatory evidence.”

But prosecutors, when caught, argued even then the conviction should stand.

“Instead of contrition, what we have seen is Justice Department officials of the highest rank suffering torn glenoid labrums from furiously patting themselves on the back for having ‘done the right thing,'” Kozinski wrote.

“We can only speculate how many others are wasting their lives behind bars because they lacked the right lawyer or the right judge or the luck needed to uncover prosecutorial misconduct,” he warned.

The solution is to have aggressive enforcement of ethical behavior.

“No Justice Department lawyer has yet been sanctioned for the Stevens prosecution despite the clear evidence of willful misconduct. Prosecutors need to know that someone is watching over their shoulders – someone who doesn’t share their values and eat lunch in the same cafeteria.”

Judge Kozinski

Judge Kozinski

He wrote, “Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional right. Judges who see bad behavior … especially prosecutors who wield great power and have greater ethical responsibilities, must hold such misconduct up to the light of public scrutiny.”

Such actions could even been the subject of a civil rights investigation, he said.

Under current precedent, he noted, prosecutors are immune from damages for misconduct “no matter how badly they misbehave,” for actions including “introducing fabricated evidence, knowingly presenting perjured testimony and bringing charges for which there is no credible evidence.”

That, he said, “is absurd,” and if the Supreme Court won’t change it, Congress should.

“When a prosecutorial office uses known liars as jailhouse snitches, or presents evidence from cops they know are prone to fabricate evidence or conduct suggestive lineups or eyewitness identifications, they are committing civil rights violations with dire consequences for their victims.”

Volokh republished the top issues that Kozinski raises as potential failing points in the system, of which corrupted prosecutors played only one part.

Eyewitnesses reliable?

Kozinski notes that there is an assumption that eyewitnesses are reliable, when “research shows that eyewitness identifications are highly unreliable.” And he notes people presume fingerprint evidence is foolproof.

“No so,” writes the veteran judge. “When tested by rigorous scientific methods, fingerprint examiners turn out to have a significant error rate,” he explained.

He even cites other “forensic evidence,” like bloodstain pattern identification, foot and tire prints, ballistics and the like, which have high error rates.

“Some fields of forensic expertise are built on nothing but guesswork and false common sense,” he wrote. “Many defendants have been convicted and spent countless years in prison based on evidence by arson experts who were later shown to be little better than witch doctors. ”

Not even DNA evidenced is infallible, he warned, being only as good “as the weakest link in the chain.”

Memories cannot be counted on, he said, and it is not true that “confessions are infallible because innocent people never confess.”

“Innocent people do confess with surprising regularity. Harsh interrogation tactics, a variant of Stockholm syndrome, the desire to end the ordeal, emotional and financial exhaustion, family considerations and the youth or feeble-mindedness of the suspect can result in remarkably detailed confessions that are later shown to be utterly false,” he said.

Further, no one really knows whether juries follow instructions, and, “There is reason to doubt that prosecutors comply with these obligations” to play fair…”

Nor can it be presumed, he wrote, that police are objective.

Police have ‘vast discretion’

“Police investigators have vast discretion about what leads to pursue, which witnesses to interview, what forensic tests to conduct and countless other aspects of the investigation. Police also have a unique opportunity to manufacture or destroy evidence, influence witnesses, extract confessions and otherwise direct the investigation so as to stack the deck against people they believe should be convicted.”

He cited the case of Debra Milke, who spent 23 years on Arizona’s death row after a detective who was known to be a liar told the court she had confessed, a statement she contradicted.

The judiciary operates, Kozinski said, on the “faith that our system works very well and the errors, when they are revealed, are rare exceptions.”

“Much hinges on retaining this belief: our self image as Americas; the pride of countless judges and lawyers; the idea that we live in a just society; confidence in the power of reason and logic; the certainty that none of us or our loved ones will face the unimaginable nightmare of unjust imprisonment or execution; belief in the incomparable integrity and accuracy of our system of justice; faith that we have transcended medieval methods of conviction and punishment so that only those who are guilty are punished, and their punishment is humane and proportionate,” he wrote.

But he said, “What do we really know?”

Further, “Lawyers and judges are inculcated with the notion that the system works well and there is nothing to worry about,” he wrote. “We tell ourselves that the system works, and we really believe it, but this is largely based on faith. When all is said and done, we have only a guess.”

Additional changes that might help include installing cameras in jury rooms.

“Seeing what juries do in actual cases can also ameliorate or eliminate the endless speculation about which trail errors are harmless and which are prejudicial,” he said. “Why shoot in the dark when a man’s liberty or life is at stake?”

He also suggests giving jurors a written copy of jury instructions, letting them take notes and have access to a transcript, letting jurors discuss the case during the trial, letting them ask questions, and telling them up front what’s at stake.

Also, ask their advice in sentencing, he said.


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