Judge Kozinski: Time to Rein In Prosecutors

Alex Kozinski is a judge of the Ninth US Circuit Court of Appeals. He has previously been outspoken regarding prosecutorial misconduct, and has recently authored an article for the Georgetown Law Review on the subject.

See the Wall Street Journal Law Blog article here. In the WSJ article, you’ll find a link to Judge Kozinski’s full article, which is lengthy, but the WSJ article provides a reasonable summary.


11 responses to “Judge Kozinski: Time to Rein In Prosecutors

  1. Excellent! Phil Locke, Thanks for staying on top of prosecutorial misconduct which has been like the plague on the “justice” system — so many innocent lives, families and children’s lives torn apart, not to mention the waste of billions of taxpayers’ dollars that could have been spent on restorative justice, education and building stronger communities, rather than decimating them. Resources wasted on “easy” convictions rather than the truly violent and corrupt criminals among us.

  2. Excerpt from Judge Kozinski’s “Time to Rein in Prosecutors”:

    Click to access Kozinski_Preface.pdf

    “There are countless documented cases where innocent people have spent decades behind bars because the police manipulated or concealed evidence, but two examples will suffice:

    46. One example is the case of Mark Prentice, who pleaded guilty to assault and robbery only after a New York State Police trooper, David Harding, reported that he had found fingerprints matching Prentice in the victim’s house. A subsequent investigation revealed that New York State Police troopers, including Harding, had falsified fingerprint evidence in at least 30 cases, and Harding admitted to planting evidence in Prentice’s case. Prentice was acquitted after spending six years in prison. Harding was then sentenced to 4.5 years in prison for fabricating evidence. See The National Registry of Exonerations, Mark Prentice, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid􏰀4540. In addition to the cases recorded by the National Registry of Exonerations, researchers became aware of more than 1,100 cases in which convictions were overturned due to just 13 police corruption scandals, the majority of which involved planting drugs or guns on innocent individuals. See Chris Seward, Researchers: More than 2,000 False Convictions in Past 23 Years, NBC NEWS (May 21, 2012), http://usnews.nbcnews.com/_news/ 2012/05/21/11756575-researchers-more-than-2000-false-convictions-in-past-23-years?lite; Sean Gar- diner, Brooklyn District Attorney Kenneth Thompson Takes on Wrongful Convictions, WALL ST. J. (Aug. 8, 2014), http://www.wsj.com/articles/brooklyn-district-attorney-kenneth-thompson-takes-on-wrongful- convictions-1407547937 (Brooklyn DA Kenneth Thompson’s conviction integrity unit has ordered the review of more than 100 prior convictions, 70 of which involved accusations that former Brooklyn Detective Louis Scarcella coerced confessions and tampered with witness statements).
    47. See supra n.34 (discussing Rivera’s coerced confession at the hands of the Lake County police); Spencer Ackerman, “I Sat In That Place for Three Days, Man”: Chicagoans Detail Abusive Confinement Inside Police “Black Site”, THE GUARDIAN (Feb. 27, 2015), http://www.theguardian.com/us-news/2015/feb/ 27/chicago-abusive-confinment-homan-square (four African-Americans describe being detained for sev- eral days inside a police warehouse, where they were “shackled and interrogated,” denied access to counsel and forbidden from notifying anyone of their whereabouts); see also Miriam S. Gohara, A Lie For a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33 FORDHAM URB. L.J. 791, 794-95 (2006); Laure Magid, Deceptive Police Interrogation Techniques: How Far is Too Far?, 99 MICH. L. REV. 1168, 1168 (2001).
    48. 92 percent of arrest warrants obtained by the Ferguson, Missouri Police Department were issued against African Americans, who as a group were 68 percent less likely than others to have their charges dismissed. See UNITED STATES DEPARTMENT OF JUSTICE-CIVIL RIGHTS DIVISION, INVESTIGATION OF THE FERGU- SON POLICE DEPARTMENT, (Mar. 4, 2015), available at http://www.justice.gov/sites/default/files/opa/press- releases/attachments/2015/03/04/ferguson_police_department_report.pdf.
    49. See Hsu, supra n.21.

    44 GEO. L.J. ANN. REV. CRIM. PROC (2015) xi

    In 2013, Debra Milke was released after 23 years on Arizona’s death row based entirely on a supposed oral confession she had made to one Detective Saldate who was much later shown to be a serial liar.50 And then there is the case of Ricky Jackson, who spent 39 years behind bars based entirely on the eyewitness identifica- tion of a 12-year-old boy who saw the crime from a distance and failed to pick Jackson out of a lineup.51 At that point, “the officers began to feed him information: the number of assailants, the weapon used, the make and model of the getaway car.”52 39 years!

    For some victims of police misconduct, exoneration comes too late: Mark Collin Sodersten died in prison while maintaining his innocence.53 After his death, a California appellate court determined that Sodersten had been denied a fair trial because police had failed to turn over exculpatory witness tapes.54 It posthumously set aside the conviction, which no doubt reduced Sodersten’s time in purgatory.

    11. Guilty pleas are conclusive proof of guilt. Many people, including judges, take comfort in knowing that an overwhelming number of criminal cases are resolved by guilty plea rather than trial.55 Whatever imperfections there may be in the trial and criminal charging process, they believe, are washed away by the fact that the defendant ultimately consents to a conviction. But this fails to take into account the trend of bringing multiple counts for a single incident—thereby vastly increasing the risk of a life-shattering sentence in case of conviction56—as well as the creativity of prosecutors in hatching up criminal cases where no crime exists57 and the overcriminalization of virtually every aspect of American life.58 It also ignores that

    50. Michael Keifer, Debra Milke Murder Charges Dismissed, AZ CENT. (Dec. 11, 2014), http://www. azcentral.com/story/news/local/phoenix/2014/12/11/%20milke-double-jeopardy-appeals/20253845/.

    51. Radley Balko, This Week in Innocence: Ricky Jackson to be Released Tomorrow After 39 Years in Prison, WASH. POST (Nov. 20, 2014), http://www.washingtonpost.com/news/the-watch/wp/2014/11/20/this- week-in-innocence-ricky-jackson-to-be-released-tomorrow-after-39-years-in-prison/. Jackson was exoner- ated thanks to the dedicated efforts of the Ohio Innocence Project. See Ohio Innocence Project, University of Cincinnati College of Law, http://www.law.uc.edu/oip.

    52. Exonerated Man Who Spent 39 Years in Prison Meets Accuser, CBS NEWS VIDEO (Jan. 5, 2015), http://www.cbsnews.com/videos/exonerated-man-who-spent-39-years-in-prison-meets-accuser/.
    53. Laura Ernde, Accused Murderer Cleared Seven Months After Prison Death, DAILY J. (Jan. 18, 2007). 54. In re Sodersten, 53 Cal. Rptr. 3d 572 (Ct. App. 2007).
    55. Judge Morris Hoffman, for example, cites to the fact that “almost all criminal defendants plead guilty” as support for the proposition that “the actual rate of wrongful convictions in the United States is vanishingly small.” See Morris B. Hoffman, The “Innocence” Myth, WALL ST. J., Apr. 26, 2007, at A19. But see Rakoff, supra n.34 (strongly objecting to the tendency to equate guilty pleas with actual guilt, noting that the current “prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed”). As to the meaning of a 1 percent error rate, see infra pp. xiv-xv.
    56. H. Mitchell Caldwell, Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System, 61 CATH. U. L. REV. 63, 72-74 (2011).
    57. See, e.g., Arthur Andersen LLP v. United States, 544 U.S. 696, 706 (2005) (reversing Arthur Andersen’s conviction of obstruction of justice under 18 U.S.C. §§ 1512(b)(2)(A) and (B), where the jury instructions, consistent with the government’s reading of the vaguely-worded statute, had all but erased a culpability requirement); United States v. Newman, 773 F.3d 438, 442, 448 (2d Cir. 2014) (pointing out “the doctrinal novelty of [the government’s] recent insider trading prosecutions” and reversing with prejudice two hedge fund managers’ convictions for securities fraud because the government “presented no evidence that [the managers] knew that they were trading on information obtained from insiders in violation of those insiders’ fiduciary duties”); United States v. Goyal, 629 F.3d 912, 921 (2010) (reversing a chief financial officer’s convictions of 15 counts of securities fraud and making false statements where “the government’s case suffered from a total failure of proof”) (internal quotation marks omitted); id. at 922 (Kozinski, C.J., concurring) (“[Goyal] is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds. This is not the way criminal law is supposed to work.”) (citations omitted).
    58. Justice Scalia criticized the overcriminalization of federal law in his dissent from denial of certiorari in Sorich v. United States, 555 U.S. 1204 (2009), a case in which the Seventh Circuit affirmed
    xii 44 GEO. L.J. ANN. REV. CRIM. PROC (2015)
    many defendants cannot, as a practical matter, tell their side of the story at trial because they fear being impeached with prior convictions or other misconduct.59 And, of course, if the trial process is perceived as highly uncertain, or even stacked in favor of the prosecution, the incentive to plead guilty to some charge that will allow the defendant to salvage a portion of his life, becomes immense.60 If the prosecution offers a take-it-or-leave-it plea bargain before disclosing exculpatory evidence, the defendant may cave to the pressure, throwing away a good chance of an acquittal.” …

  3. What Alex Kozinski lacks in common sense, he makes up for with arrogance and sanctimony.

  4. Pingback: Judge Kozinski: Time to Rein In Prosecutors | Colder Case

  5. Jason Christie

    Notice how the government always calls criminal acts merely “misconduct”… yet when a civilian violates criminal statutes… its a “crime.”

    Its painfully obvious that the rare occurrence of a prosecutor getting caught in criminal acts such as withholding crucial evidence from a jury or worse yet, engaging in the FELONY act of perjury, that such cases are only the tip of the iceberg. Its impossible for so few actual cases to be in existence.

    The public has lost its virginity, so to speak, regarding the farce of the American “justice system”…. and now nearly fully understands the corruption and “look the other way” behavior of honest judges and honest prosecutors. And the government can NOT put that genie back into the bottle nor continue to lie about it to the public.

    The ONLY way to solve the problem is to actually imprison criminals in the District Attorney Offices across the country every time a case is found out.

    The other routine tactic of the failed system of “justice” is to allow such government criminals to merely “resign” … walking off into the yonder with their public government retirement pensions as if they didn’t engage in crimes against the taxpayer public.

    Its NOT “misconduct.” Its a criminal act. And government employees need to be held accountable. That includes both criminals in the DA Offices and criminals in the police departments who are caught in documented lies. “Brady Status” to a criminal cop is a crime unto itself Such criminal cops need to be fired… not coddled and kept on the job with merely a tainted reputation that only gets exposed if they are in a court room.

    • Government “misconduct”, should be called malfeasance. Those who wrongfully convict the innocent should be charged with a felony and face the same time they demand for the “accused”, then we would see meaningful reform in the “one-sided” injustice system in America, “land of the free” (a myth?).

      • Docile Jim Brady – Bend OR 97702

        ▬►Camille Tilley re “… face the same time …”
        As a kindness , imprison their descendants , if any , for familial comfort and further bonding •

        ▼ Death worked over 53 years ago to remove a tyrannical judge ▼
        Social order is based on law, and its perpetuity on its fair and impartial administration. Deliberate injustice is more fatal to the one who imposes it than to the one on whom it is imposed. The victim may die quickly and his suffering cease, but the teachings of Chrisit[i]anity and the uniform lesson of all history illustrate without exception that its perpetrators not only pay the penalty themselves, but their children through endless generations….
        Judge James E. Horton* – June 22 , 1933
        Vacating a conviction and death sentence in State of Alabama v. Haywood Patterson •

        Good News I is , that the judge had no known descendants •
        Good News II is , that it was not necessary to opt for the tyrannicide solution by John of Salisbury (albeit a minority view) •
        Good News III is that Karma remained alive and well in 1963 ☺

        Respectfully submitted ,
        D J B aka Kind Soul® OH August 2007-2017
        Nemo Me Impune Lacessit

        * Former Judge James Edwin Horton died at age 95 on 28 March 1973 •
        He was posthumously elected to the Alabama Lawyers Hall of Fame in 2010 by the Alabama State Bar. – See more at: http://www.encyclopediaofalabama.org/article/h-3302#sthash.UCURvGju.dpuf

  6. Back in 1998 I was pressured into pleading guilty for something I didn’t do look me up look into my case please you will find that I am innocent. There is evidence there’s a Fox 23 News tape that the victim said it wasn’t me that never made it in court and there’s a police report I never said or sign. And a test that was negative I have a Facebook account Charles Wilcox from Troy New York I have a story you won’t believe it my phone number is 518 590 1564 I don’t answer please leave me a message and I’ll get right back to you

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