Criminal Justice Reform

This paper is largely, but not entirely, excerpted from Criminal Law 2.0 by Judge Alex Kozinski (Ret. U.S. 9^th Circuit Court).  Its primary focus is the reform of criminal procedures in order to further guarantee a more just criminal justice system.  I urge all to read his essay in its entirety as he describes the myths under which the system operates and provides some of the remedies listed below to prevent many of the problems created by the myths.  Rather than rewrite his entire essay, allow me to cite his list of myths and call upon the reader to study his entire essay for his supporting arguments and citations.  Judge Kozinski’s list of myths:

1.     Eyewitnesses are highly reliable

2.     Fingerprint evidence is foolproof.

3.     Other types of forensic evidence are scientifically proven and therefore infallible.

4.     DNA evidence is infallible.

5.     Human memories are reliable.

6.     Confessions are infallible because innocent people never confess.

7.     Juries follow instructions.

8.     Prosecutors play fair.

9.     The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.

10.  Police are objective in their investigations.

11.  Guilty pleas are conclusive proof of guilt.

12.  Long sentences deter crime.

 Recommendations for reform – Juries

1.     Give jurors a written copy of the jury instructions.

Jury instructions are often lengthy and difficult to follow. Jurors are expected to absorb them by listening, which is probably the worst way to learn new and complex subject matter.[1]  Many judges try to ameliorate this problem by sending a copy of the instructions into the jury room when the panel retires to deliberate, but some judges refuse to do so. It should be reversible error for a judge to fail to send a full set of jury instructions with the jury when it retires to deliberate. Pre-instructing the jury on key concepts and giving them those instructions in writing is a good idea.

 

2.     Allow jurors to take notes during trial and provide them with a full trial transcript.

Most judges now allow note-taking and provide writing materials for the jury to use, but a minority refuse to do so. This should be reversible error. Consulting notes during deliberations is immensely useful when the jurors’ memories differ as to what a witness has said.  Forcing jurors to rely on their recollections alone exacerbates the distorting memory effects discussed above.  In fact, I would go a step farther and give jurors transcripts of the proceedings to consult during deliberations. This was not possible when transcripts had to be transcribed laboriously by hand. But real-time transcripts are now pretty much standard and available for the judge and lawyers to consult while the trial is going on. There is no justification for keeping jurors in the dark.

 

3.     Allow jurors to discuss the case while the trial is ongoing.

Most jury trials now start with a stern admonition that jurors not discuss the case until they are sent out to deliberate. It’s unclear why we do this except that we’ve always done it that way.[2]  Allowing jurors to discuss what they’ve heard could give them a chance to express doubts and to remind each other of the need to keep an open mind.

 

4.     Allow jurors to ask questions during the trial.

I have been doing this for some years in civil cases and it seems to work well. I ask jurors to put any questions in writing and hand them up to me. I then share these questions with the lawyers and let one or both use them during their examinations. Other techniques are possible, including having jurors pose questions to the witnesses directly and letting the lawyers follow up in light of the answers.

 

5.     Tell jurors up-front what’s at stake in the case.

In most jurisdictions, jurors in non-capital cases are not told what the likely punishment will be if the defendant is convicted. In fact, we tell jurors not to consider punishment in deciding guilt. In making most life decisions, we consider the consequences in determining how much effort to put into deciding and the degree of confidence we must feel before we go forward. Whether to get married or have a risky operation obviously requires a greater psychological commitment than choosing between Starbucks and Peets. Jurors should be told the gravity of the decision they are making so they can take it into account in deciding whether to convict or acquit. As representatives of the community where the defendant committed his crime, the jury should be allowed to make the judgment of whether the punishment is too severe to permit a conviction. Having to confront the jury with the severity of the punishment they are seeking to extract may well deter prosecutors from using overcharging as a bargaining tool.

 

6.     Give jurors a say in sentencing.

Except for capital cases, we have turned our sentencing process over entirely to experts and professionals. We have mandatory minimums, sentencing guidelines, probation officers and judges at all levels involved in the decision, but we studiously ignore the views of the very people who heard the evidence and are given the responsibility to determine guilt or innocence while reflecting the values of the community in which the offense occurred. This is a system only a lawyer could love. Jurors should be instructed on the range of punishments authorized by law and, if they find the defendant guilty, entrusted to weigh in on the appropriate sentence within that range. And I would make that the absolute upper limit of what punishment the judges actually impose, overriding any sentencing guidelines, mandatory minimums or their own considered judgment.

 Recommendations for reform – Prosecutors

1.     Require open file discovery.

If the prosecution has evidence bearing on the crime with which a defendant is being charged, it must promptly turn it over to the defense. North Carolina adopted such a rule by statute after Alan Gell was convicted of murder and sentenced to death, even though the prosecution had statements of 17 witnesses who reported to have seen the victim alive after Gell was incarcerated— evidence that the prosecution failed to disclose until long after trial.[3]  Three years after its passage, the law forced disclosure of evidence that eventually exonerated three Duke lacrosse players who were falsely accused of rape—and led to the defeat, disbarment and criminal contempt conviction of Durham District Attorney Mike Nifong.[4]  Prosecutors were none too happy with the law and tried hard to roll it back in 2007 and again in 2012, but the result was an even stronger law that applies not only to prosecutors but to police and forensic experts, as well it should.[5]  It cannot be left to prosecutors to be in charge of deciding what evidence will be material to the defense—something they cannot possibly do, because they do not know all the potential avenues a defense lawyer may pursue, and because it is not in their hearts to look for ways to help the other side.

 

2.     Adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations.

For reasons already explained, enforcing the government’s obligations is critical to achieving a level playing field in criminal cases. But policing this conduct is exceedingly difficult for the simple reason that “Brady violations . . . almost always defy detection. The cops know it. The prosecutors know it. The defense and the defendant have no idea whether Brady material exists.”[6]  Open file discovery would go a long way toward ameliorating the problem, but not far enough. The prosecutor’s file will generally contain what the police and investigators consider to be inculpatory evidence; a great deal might be left out that is unhelpful to the prosecution. Yet the government’s disclosure obligation extends to information that is in the hands of investigators and places an affirmative obligation on prosecutors to become aware of exculpatory evidence that is held by others acting on the government’s behalf.[7] Ensuring that the government complies with this obligation cannot be left up to individual prosecutors. Rather, prosecutorial offices must establish firm policies to ensure compliance.

 

This does happen from time to time. For example, in 1990, Chief Assistant United States Attorney Mary Jo White of the Eastern District of New York, Chief of the Criminal Division Bill Muller and Chief of the Narcotics Unit David Shapiro, among others, issued a detailed, thoughtful 27-page memorandum analyzing the government’s disclosure obligation at the time and recommending procedures to be followed when dealing with informants and other government witnesses.[8]  One of those recommendations was that the office maintain, and provide to the defense, “information about every case in which an informant has testified as an informant or a defendant, including the district or state in which the proceedings took place, the docket numbers and transcripts, where possible . . . and statements by a judge referring to a witness’s truthfulness and any allegations of double dealing or other misconduct.”[9]  The memo contained other similarly enlightened recommendations, disclosing a firm commitment to complying with the spirit, not merely the letter, of Brady and its progeny. Some years later, in 1999, a similar set of procedures was adopted by the United States Attorney’s Office in the Northern District of California in a manual drafted by one of the authors of the EDNY memo who had moved there and served as head of the Criminal Division.[10]  But, according to a lawyer who left the office in 2002, the manual was disregarded by the new U.S. Attorney.  Compliance with the government’s disclosure obligations cannot be left to the political vagaries of the District Attorneys’ offices across the state.  Instead, the Attorney General must ensure compliance by setting standards and meaningfully disciplining prosecutors who willfully fail to comply. If they will not do it on their own, the General Assembly must prod them into it by adopting such standards by legislation.

 

3.     Adopt standardized, rigorous procedures for eyewitness identification.

North Carolina leads the way, once again, with the Eyewitness Identification Reform Act,[11] which does just that. It provides in relevant part that lineups “shall be conducted by an independent administrator”; “[i]ndividuals or photos shall be presented to witnesses sequentially, with each individual or photo presented to the witness separately”; the eyewitness must be instructed that he “should not feel compelled to make an identification”; “at least five fillers shall be included in a [photo or live] lineup, in addition to the suspect”; and live identification procedures must be recorded on video.[12]  This law, too, came as a result of a huge miscarriage of justice when Jennifer Thompson-Cannino mistakenly identified Ronald Cotton as her rapist.[13]  He spent 11 years in prison before he was exonerated by DNA evidence.[14]  The cases involving mistaken eyewitness identification are legion.[15]

4.     Video record all suspect interrogations.

The surprising frequency of false confessions should make us deeply skeptical of any interrogation we cannot view from beginning to end. Suspects are frequently isolated and pressured in obvious and subtle ways, and when the process ends, we often have very different accounts of what happened inside the interrogation room.[16]  In those circumstances, who are we to believe? Most of the time, the judge and juries believe the police. There may have been a time when we had to rely on such second-hand reports, but technology has now made this unnecessary: Video recording equipment is dirt cheap, and storage space for the resulting files is endless. No court should ever admit a confession unless the prosecution presents a video of the entire interrogation process from beginning to end.[17]

 

5.     Impose strict limits on the use of jailhouse informants.

In response to a devastating report on jailhouse informants issued by the Los Angeles County grand jury in 1990, the county adopted procedures that required the approval of a committee before informants could be used.[18]  The use of informants consequently plummeted.[19]  Even still, the practice of using jailhouse informants as a means of detecting and perhaps manufacturing incriminatory evidence has continued in California.[20]  Serial informants are exceedingly dangerous because they have strong incentives to lie or embellish, they have learned to be persuasive to juries and there is no way to verify whether what they say is true.[21]  A man jailed on suspicion of a crime should not be subjected to the risk that someone with whom he is forced to share space will try for a get-out-of-jail-free card by manufacturing a confession.

 

6.     Adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process.

There is an effort underway to do this at the federal level. A 30-member commission headed by the Justice Department and comprised of forensic scientists, researchers, prosecutors, defense attorneys and judges was founded a few years ago with the goal of “improv[ing] the overall reliability of forensic evidence after instances of shoddy scientific analysis by federal, state and local police labs helped convict suspects.”[22]  However, the Justice Department recently made the unilateral decision that “the subject of pre-trial forensic discovery—i.e., the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be disclosed before they testify in court—is beyond the ‘scope’ of the Commission’s business and therefore cannot properly be the subject of Commission reports or discussions in any respect.”[23]  This prompted the resignation of commission member Judge Rakoff, who criticized the decision as “a major mistake that is likely to significantly erode the effectiveness of the Commission” and a reflection of “a determination by the Department of Justice to place strategic advantage over a search for the truth.”[24]  He elaborated: “A primary way in which forensic science interacts with the courtroom is through discovery, for if an adversary does not know in advance sufficient information about the forensic expert and the methodological and evidentiary bases for that expert’s opinions, the testimony of the expert is nothing more than trial by ambush.”[25]  Judge Rakoff’s noisy resignation had its desired effect: Two days later, the Justice Department reversed its decision to bar the commission from considering issues related to pre-trial forensic discovery.[26]  Judge Rakoff subsequently returned to the commission, which is now in the process of preparing recommendations for the Attorney General. But why should the Justice Department have to be buffaloed into doing the right thing?

 

7.     Keep adding conviction integrity units.

We know that there are innocent people languishing in prison, but figuring out who they are is very difficult—more so if the prosecution, which has control of whatever evidence there is, is fighting you tooth and nail. That turns out to be a common response from prosecutors confronted with evidence that they may have obtained a wrongful conviction. A separate unit within the prosecutor’s office, with access to all the available evidence, and with no track record to defend, may be the best chance we have of identifying wrongfully convicted prisoners. More than a dozen such offices have been established across the country[27] and more are being added.[28]  This trend needs to continue and escalate. Better yet, there might be a federal agency to investigate the problem of questionable state convictions. This would reduce the bias that one state agency might have in favor of another.

In addition, state law ought to be revised to give convicted defendants full access to DNA and other evidence in the possession of the prosecution. We have repeatedly witnessed the appalling spectacle of innocent defendants spending many years fighting to obtain the evidence that would eventually exonerate them. Michael Morton spent six additional years in prison because District Attorney John Bradley worked very hard to block Morton’s requests for DNA testing.[29]  And Anthony Ray Hinton spent more than fifteen years in prison fighting for the right to test evidence that eventually set him free.[30] Bruce Godschalk lost seven years[31]; Frank Lee Smith died in prison waiting for DNA testing that eventually proved his innocence.[32]

There is no justification for withholding evidence that might set an innocent man free from unjust imprisonment. Whatever impediments have been interposed to prevent access to such evidence to convicted defendants and those working on their behalf ought to be summarily removed by legislation giving them full and swift access to all evidence in possession of the government. Most states now have laws allowing post-conviction access to DNA testing, but many are restrictive in practice— for example, denying requests from inmates who originally confessed to the crime or imposing a deadline of one year after conviction to file a request.[33]  Nebraska’s statute, however, serves as a good example to emulate. It provides:

  

[A] person in custody pursuant to the judgment of a court may, at any time after conviction, file a motion, with or without supporting affidavits, in the court that entered the judgement requesting forensic DNA testing of any biological material that:
(a) Is related to the investigation or prosecution that resulted in such judgment; (b) Is in the actual or constructive possession or control of the state or is in the possession or control of others under circumstances likely to safeguard the integrity of the biological material’s original physical composition; and
(c) Was not previously subjected to DNA testing or can be subjected to retesting with more current DNA techniques that provide a reasonable likelihood of more accurate and probative results.[34] 

The statute further provides that DNA tests must be performed in a nationally accredited laboratory, that the county attorney must submit an inventory to the defense and to the court of all evidence secured by the state in connection with the case.[35]

 

8.     Establish independent Prosecutorial Integrity Units.

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. Move OPR to the Department of Agriculture, and institute similar independent offices in the 50 states.

 

9.             Abandon political election of prosecutors.

Excerpt:    The United States is the only country in the world that elects its prosecutors. While this practice may seem benign and democratic, it is anything but, with disastrous consequences for justice.  That’s because elections affect how prosecutors behave, and not for the better. Prosecutors are not like ordinary lawyers who represent the interests of a single client. Instead, prosecutors are meant to balance the public’s interest in prosecuting criminals with the public’s other interest in fairness. Yet when running for reelection, prosecutors become overly pugnacious, sacrificing fairness—which does not play well at the polls—for convictions, which do play well.

 

One study published in the Charleston Law Review determined the electoral “tough on crime” mantra emphasizes “wins,” even if the “wins” lead to over-punishment or injustice. For example, the disciplinary commission report that sanctioned Michael Nifong—the district attorney who prosecuted Duke University lacrosse players on false rape charges in 2005—noted his upcoming primary as a motivating factor for his misconduct. The pressure to produce wins has led to a “win-at-all-costs” mentality in some offices, because voters reward such behavior.

 

Moreover, elections provide structural incentives for district attorneys to bring more cases to trial and seek longer sentences for prisoners, which in turn feed the crisis of mass incarceration. A prosecutor is nearly 10 percent more likely to take a case to trial, rather than seek a plea bargain, in the year before he or she runs for reelection, according to a recent study.[36]  If the prosecutor is running in a contested election, the odds increase another 15 percent. Elections tip the balance too far in the direction of incarceration.[37]

   10.       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.[38]  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?

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

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

AUSA: There was an agreement with the Southern District of New York and [Nourian], yes.[39]

Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights. In Baca v. Adams,[40] 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.[41]  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.[42]  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.[43]  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.[44]

 Recommendations for reform – Judges

 

1.     Enter Brady compliance orders in every criminal case.

The Brady rule is in many ways the ultimate guarantor of fairness in our criminal justice system.  This is because police have unparalleled access to the evidence in criminal cases—both inculpatory and exculpatory.  Once a crime is reported and police are on the scene, they can secure the area and prevent anyone from touching anything until they are done.  They have control of what evidence is sent out for forensic testing; they talk to witnesses and get their impression before anyone else does.  Police and prosecutors, working together, can lean on witnesses by threatening prosecution or offering leniency.  If there is evidence helpful to the defense, it will generally wind up in the possession of the police; if witnesses have made helpful statements in their initial contact with investigators (as happened in the Stevens case) that information will be in the sole possession of the prosecution.  A defense investigator or lawyer plowing over the same territory after the police have done their job will generally find the scene denuded of clues and witnesses who are skittish and laconic.  Brady and its progeny therefore impose important obligations on prosecutors, obligations that are too frequently ignored.  In case after case where an innocent person is exonerated after many years in prison, it turns out that the prosecution failed to disclose or actively concealed exculpatory evidence.  But Brady is not self-enforcing; failure to comply with Brady does not expose the prosecutor to any personal risk.[45]  When Judge Sullivan discovered that the prosecutors in the Stevens case had obtained their conviction after failing to disclose exculpatory evidence, he appointed a special counsel, DC attorney Henry Schuelke III, to independently investigate the prosecutors’ conduct.[46]  Schuelke determined that the lawyers had committed willful Brady violations but that the court lacked the power to sanction the wrongdoers because they had not violated any court-imposed obligations.[47]  The solution to this problem is for judges to routinely enter Brady compliance orders, and many judges do so already. Such orders vary somewhat from judge to judge, but typically require the government to turn over, when received, documents and objects, reports of examinations and tests, expert witness opinions and all relevant material required by Brady and Giglio.[48]  Entering such an order holds prosecutors personally responsible to the court and will doubtless result in far greater compliance.

 

2.     Engage in a Brady colloquy.

This procedure was proposed by Professor Jason Kreag in an article published in the Stanford Law Review Online.[49]  The details are outlined in Professor Kreag’s article but the general idea is that, during pretrial hearings and before a defendant enters a guilty plea, the trial judge would have a conversation with the prosecutor on the record, asking him such questions as, “Have you reviewed your file . . . to determine if [it] include[s] information that is favorable to the defense?” and “Have you identified information that is favorable to the defense, but nonetheless elected not to disclose [it] because you believe that the defense is already aware of the information or the information is not material?”[50]  There is nothing like having to face a judge on the record to impress upon lawyers the need to scrupulously comply with their professional obligations.  But the questions must be sufficiently specific and detailed to avoid the mantra, “We’re aware of our Brady obligations and we’ve met them.”

 

3.     Adopt local rules that require the government to comply with its discovery obligations without the need for motions by the defense.

The prosecution need not present Brady evidence unless the defense asks for it, usually by motion.[51]  This seems sort of silly because the defense obviously wants whatever exculpatory evidence the prosecution might have.  Surprisingly, few courts have rules that obviate the need for criminal discovery motions.[52]  I’m aware of only a dozen or so federal courts that have local rules either stating that the defense doesn’t need to make a formal discovery motion, or requiring the government to disclose Brady/Giglio material within a specific time frame, without mentioning a defense motion.[53]  An example of such a rule is Eastern District of Washington Local Criminal Rule 16(a), which was adopted just last year. The rule requires the government to make available within 14 days of arraignment: (1) all of the defendant’s oral and written statements, the defendant’s prior record, documents and objects and expert witness opinions that are in the government’s “possession, custody or control or which may become known . . . through due diligence”; (2) information from an “electronic eavesdrop, wiretap or any other interception,” as well as “the authorization for and information gathered from” a tracking device or video/audio recording used during investigations; (3) “search warrants and supporting affidavits”; (4) information regarding whether physical evidence intended to be offered in the government’s case-in-chief was seized without a warrant; and (5) photographs used in any photo lineup, as well as information obtained from any other identification technique.[54]  Rule 16(a)(6) is a catchall clause that requires the government to “[a]dvise the defendant’s attorney of evidence favorable to the defendant and material to the defendant’s guilt or punishment to which defendant is entitled pursuant to Brady and United States v. Agurs.”[55]  I have no idea why this isn’t part of the Federal Rules of Criminal Procedure, but it should be.

 

4.     Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing.

As Judge Nancy Gertner has pointed out on numerous occasions,[56] courts in criminal cases routinely admit expert evidence lacking the proper foundations and sometimes amounting to little more than guesswork.  Few defense lawyers challenge the reliability of expert evidence because few trial judges grant requests for Daubert hearings.[57]  And appellate courts affirm such denials under a very generous abuse of discretion standard.[58]  With the mounting number of wrongful convictions based on faulty expert evidence in such diverse areas as arson and shaken baby syndrome, courts must be far more rigorous in enforcing Daubert before allowing experts to testify in criminal trials.  Failure to hold a Daubert hearing where the reliability of expert evidence has been credibly challenged should be considered an error of law, as should the refusal to allow a defense memory expert where the case turns on conflicting recollections of past events.[59]

 

5.     Abandon judicial elections

Professor Monroe Freedman made the case for the unconstitutionality of elected state judges in his succinct monograph, The Unconstitutionality of Electing State Judges.[60]  He relied on the separate opinions of Justices O’Connor and Ginsburg in Republican Party of Minnesota v. White,[61] citing Justice O’Connor’s opinion for “studies showing that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty.”[62]  The difficulty confronting any judge who faces an election is compounded by the well-known practice of prosecutors enlisting one of their own to oppose a judge that they consider to be pro-defense.[63]  And in at least 19 states, lawyers may also “paper” or “affidavit” a judge by filing a peremptory challenge to disqualify a judge they deem “prejudiced” against their interests, without having to submit any explanation or proof of prejudice.[64]  This tactic can be used en masse to effectively preclude a judge from hearing any criminal cases, and is precisely what appears to be happening to the judge in Orange County who removed the District Attorney’s office from a high-profile case because of repeated instances of misconduct.[65]  While many, perhaps, most judges resist the pressure and remain impartial, the fact that they may have to face the voters with the combined might of the prosecution and police groups aligned against them no doubt causes some judges to rule for the prosecution in cases where they would otherwise have ruled for the defense.[66]

 Recommendations for reform – General

1.     Abrogate absolute prosecutorial immunity

In Imbler v. Pachtman,[67] 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.[68]

 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.[69] 

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.[70]

 There have been a few instances of professional discipline against prosecutors, though even that has been much less than against similarly-situated private lawyers.[71]  By and large, however, professional organizations are exceedingly reluctant to impose sanctions on prosecutors for misconduct in carrying out their professional responsibilities.[72]  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.[73]

 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,[74] 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.[75]  Unmoved, the Court held the prosecutors and their supervisors were all protected by absolute immunity and Mr. Goldstein can pound sand.[76]

 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[77] 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.[78]  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.

 The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless a government official violated “clearly established law,” which usually requires specific precedent on point.[79] A civil action under 42 U.S.C. § 1983 is often the only way for a victim of official misconduct to vindicate these federally guaranteed rights. But qualified immunity often bars even those plaintiffs who can prove their case from remedying a wrong: harm, but no foul. Qualified immunity thus enables public officials who violate federal law to sidestep their legal obligations to the victims of their misconduct. In so doing, the doctrine corrodes the public’s trust in those officials—law enforcement in particular— making on-the-ground policing more difficult and dangerous for all officers, including that vast majority who endeavor to uphold their constitutional obligations. And the doctrine’s primary justification, to prevent public officials from paying their own judgments, has proven empirically unfounded as the widespread availability of indemnification already provides that protection.[80]

Recently publicized episodes of police misconduct vividly illustrate the costs of unaccountability. Indeed, the NAACP Legal Defense Fund has explicitly called for “re-examining the legal standards governing . . . qualified immunity.”[81] The unlawfulness of qualified immunity is of particular importance now. Despite its shoddy foundations, the Supreme Court has been formally and informally reinforcing the doctrine of immunity. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for habeas deference and few other legal doctrines. Rather than doubling down, the Court ought to be beating a retreat.[82]

 

2.     Abolish victimless crimes

“It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another.”[83]

We say we want criminal justice reform, but we must realize that it is not a sentimental sideshow. Victimless crime laws are a blight on our humanity. People that persist in maintaining them only deform their own souls more than the prisoners they victimize.  A free society understands that the state does not own our body and mind; we work out our own salvation as communities bound together by mutual forbearance.

We should have learned our lesson from our experiment with Prohibition, which spurred the rise of organized crime. Whenever a widely desired something is criminalized, its value will rise exponentially, while the desire for it will remain high, thus creating a need for an organization to fulfill that desire. Peter McWilliams, author of “Ain’t Nobody’s Business If You Do”, explains how this contributes to the rise of organized crime, including narco-trafficking:

“If fulfilling that desire is a crime, that organization will be organized crime. Operating outside the law as organized criminals do, they don't differentiate much between crimes with victims and crimes without victims. Further, the enormous amount of money at their disposal allows them to obtain volume discounts when buying police, prosecutors, witnesses, judges, juries, journalists, and politicians…. Once consensual crimes are no longer crimes, organized crime is out of business.”

Especially when the forbidden something is an addictive drug, its excessive cost will incite some people to commit crimes they would otherwise not have committed, such as robbery. Crimes committed for this reason can then become habit forming, leading to more crimes.

The time and money that goes into pursuing and punishing victimless crimes drains money away from crime prevention and rehabilitation programs which could otherwise contribute to reducing real crimes. And it even sometimes leads to letting real criminals out of prison to make room for the victimless “criminals”. McWilliams describes the problem:

“Real criminals walk free every day to rape, rob, and murder again because the courts are so busy finding consensual criminals guilty of hurting no one but themselves. And even if the courts could process them, the prisons are already full; most are operating at more than 100% capacity. To free cells for consensual criminals, real criminals are put on the street every day.” 

3.     Sever the relationship between crime labs and law enforcement

Within the current legal system, it is often difficult to challenge the analysis of a police crime lab, even for the defense. Although the word “forensic” derives from the Latin word for the forum, where citizens congregated to dispute public questions, modern forensic science is anything but public or adequately open to dispute. The forensics lab holds an effective monopoly on the analysis of the evidence presented to it. The lab’s scientist is free to infer from the evidence without being second-guessed. The forensic worker, therefore, has power.

 While the vast majority of forensic scientists wield this power fairly and competently, a few do not. The proper function of forensic science is to extract the truth. According, however, to a study in 2001:

“As it is practiced today, forensic science does not extract the truth reliably. Forensic science expert evidence that is erroneous (that is, honest mistakes) and fraudulent (deliberate misrepresentation) has been one of the major causes, and perhaps the leading cause, of erroneous convictions of innocent persons.”[84]

 In the wake of DNA exonerations, an extensive literature has developed on the limited reliability of forensic testimony. The institutional structure of forensic work is an important source of error, insufficiency, and occasionally, malfeasance.  Our adversarial criminal courts organize disputes between the prosecution and the defense. But the current institutional structure of forensic science places the results of forensic scientists largely beyond dispute.

In its report to Congress the National Academy of Sciences explains: “Forensic scientists who sit administratively in law enforcement agencies or prosecutors’ offices, or who are hired by those units, are subject to a general risk of bias.” That is why it is time to change the relationship between crime labs and law enforcement.

Forensic labs are often organized within police departments and are thus dependent on the departments for their budgets. This institutional relationship creates a pro-prosecution bias, as the managers of forensics units answer to law enforcement agencies. For example, David Williams, an investigator in the Federal Bureau of Investigation’s (FBI) Explosives Unit, was found to have “tailored” his testimony “to the most incriminating result” in two trials, namely, the prosecutions for the World Trade Center bombing of 1993 and the Oklahoma City bombing of 1995. In the Oklahoma case, “Williams repeatedly reached conclusions that incriminated the defendants without a scientific basis and that were not explained in the body of the report.”[85]

“Scientific…assessment conducted in forensic investigations should be independent of law enforcement efforts either to prosecute criminal suspects or even to determine whether a criminal act has indeed been committed. Administratively, this means that forensic scientists should function independently of law enforcement administrators. The best science is conducted in a scientific setting as opposed to a law enforcement setting. Because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”[86]

 

Removing forensic service providers from administrative oversight by law enforcement (to include prosecutor’s offices) addresses the “fox guarding the hen house” issue. Those responsible for acting on the jurisdiction’s or defendant’s behalf in court are not in charge of the neutral arbiter of facts that support or refute criminal allegations. The implication is not that all law enforcement oversight of laboratory functions is biased but that—purely based on mandated responsibilities—the potential for that particular brand of bias is greater than if the laboratories were independent. Other types of bias may occur but, as an independent agency, the laboratory can at least act on them without collateral repercussions and resistance due to professional cultural differences. 

4.     Initiate Mens Rea Reform

“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”[87]

 Traditionally, the criminal law held that the commission of a criminal act requires both mens rea, or “a guilty mind,” and an actus reus, or “a bad act.” Neither element on its own was sufficient to justify criminal sanctions; it was only when both of these elements were present that a case would be dealt with in the criminal system. A bad act without a guilty mind (e.g., a car accident where you are at fault) would go to the civil tort system if it caused injury, and a guilty mind without a bad act (e.g., your desire to kill someone that you never act on) would be a matter for your conscience or religious confession.[88] Today, with increasing frequency, the system has turned away from this requirement, severely weakening or abandoning altogether the mens rea standards that were once commonplace.

 At the state level, we see that successful mens rea reform is possible. In a number of states, most recently Michigan and Ohio, legislatures have enacted default mens rea provisions—in which a designated mens rea standard is automatically inserted into any criminal statute that lacks one unless the legislature evinces a clear intent to enact a strict liability offense. These reforms have been adopted with overwhelming bipartisan support. Even in states with such provisions, prosecutions have continued apace and defendants are still being convicted of the crimes with which they have been charged.[89] Not only has the criminal justice system continued without interruption, but the public’s respect for the moral force of the criminal law in those states has also likely been enhanced.

 Rather than continue the current system’s acceptance of criminal penalties for unwitting violations of little-known regulations, we should reserve the severity of a criminal penalty for those who act with mens rea, a guilty mind. It is inevitable that bad outcomes will occur from time to time, by sheer accident or by negligent acts. In these cases, the intent of the actor should make a difference in whether he is criminally prosecuted or is dealt with through the civil or administrative justice systems. Restoring moral blameworthiness to greater prominence in our criminal laws through mens rea reform will revitalize our criminal justice system and preserve its moral authority, which, in turn, will engender respect for the rule of law.

 Conclusion

 I have taken Judge Kozinski’s essay and edited and amended it with an eye to reforming the criminal justice system in the State of Tennessee.  It is in the best interest of the people of this state that the criminal justice system is equitable, fair and protects the rights of all parties.  In order to prevent the misapplication of the justice system on the innocent and to protect the individual liberties which the application of some of our malum prohibitum laws allow, it is my firm conviction these changes are necessary.  We cannot call ourselves the “land of the free” if a substantial portion of our population sits imprisoned, unable to contribute to society, provide for their own well being and that of their family.

 While Judge Kozinski devotes most of his essay to criminal procedures, he also mentions removing a certain number of felonies each day.  He directs this at the Congress.  I have chosen instead to focus on the General Assembly along similar lines by advocating the abolition of victimless crime.  Above, I cited Lysander Spooner in this essay but it is worth taking the time to read the most important portion of his monograph, Part I:

            Vices are those acts by which a man harms himself or his property.

            Crimes are those acts by which one man harms the person or property of another.

Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.

In vices, the very essence of crime — that is, the design to injure the person or property of another — is wanting.

It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practices a vice with any such criminal intent. He practices his vice for his own happiness solely, and not from any malice toward others.

Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on Earth no such thing as individual right, liberty, or property — no such things as the right of one man to the control of his own person and property, and the corresponding and coequal rights of another man to the control of his own person and property.

For a government to declare a vice to be a crime, and to punish it as such, is an attempt to falsify the very nature of things. It is as absurd as it would be to declare truth to be falsehood, or falsehood truth.[90]

---

[1] See Michael A. Cohen et al., Auditory Recognition Memory Is Inferior to Visual Recognition Memory, 106 PROC.NAT’L ACAD.SCIS. 6008, 6008 (Apr. 7, 2009).

[2]  See David A. Anderson, Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During Trial, 174 MIL. L. REV. 92, 94-95, 121-24 (2002) (chronicling the history of the prohibition against pre-deliberation discussion and concluding that the rule doesn’t make sense and should be abolished).

[3] See EVIDENCEPROFBLOG, Open And Shut: North Carolina Strengthens Its Open Discovery Law (June 3, 2011), http://lawprofessors.typepad.com/evidenceprof/2011/06/back-in-2004-north-carolinagovernor-mike-easley-signed-a-bill-into-law-that-required-prosecutors-to-share-their-files.html.

[4] See Duke Lacrosse Prosecutor Disbarred, CNN (June 17, 2007), http://www.cnn.com/2007/LAW/ 06/16/duke.lacrosse/; THE ASSOCIATED PRESS, Day in Jail for Ex-Duke Prosecutor, N.Y. Times (Sept. 1, 2007), http://www.nytimes.com/2007/09/01/us/01nifong.html?_r0&gwhD729031CB5109A29647D63 F43549BEA4&gwtpay.

[5] See N.C. GEN.STAT. § 15A-903(a)(1) (2011), available at http://www.ncleg.net/Sessions/2011/Bills/ House/PDF/H408v2.pdf (“Upon motion of the defendant, the court must order: The State to make available to the defendant the complete files of all law enforcement agencies, investigatory agencies, and prosecutors’ offices involved in the investigation of the crimes committed or the prosecution of the defendant.”); EVIDENCEPROFBLOG, supra n.135.

[6] Scott H. Greenfield, The Flood Gates Myth,SIMPLE JUSTICE (Feb. 16, 2015), http://blog. simplejustice.us/2015/02/16/the-flood-gates-myth/.

[7] See Kyles v. Whitley, 514 U.S. 419, 437 (1995).

[8] See MARY JO WHITE ET AL., BRADY/GIGLIO DISCLOSURES (Oct. 30, 1990) (unpublished internal memorandum, on file with author).

[9] Id. at 2.

[10] See AUSA Manual for the Northern District of California (unpublished internal manual, on file with US 9^th Circuit Court of Appeals).

[11] N.C. GEN.STAT. § 15A-284.52 (2012), http://law.justia.com/codes/north-carolina/2012/chapter15a/article-14a/section-15a-284.52.

[12] Id.

[13] See Innocence Project, Ronald Cotton, http://www.innocenceproject.org/cases-false-imprisonment/ ronald-cotton. The case and the reform that it triggered were featured on a 60 Minutes episode titled “Eyewitness: How Accurate is Visual Memory?” See EVIDENCEPROFBLOG, Can I Get A(n Eye) Witness: 60 Minutes Story Exposes Problems with Eyewitness IDs (Mar. 9, 2009), http://lawprofessors.typepad.com/ evidenceprof/2009/03/those-of-you-wh.html.

[14] See Innocence Project, supra n.148

[15] For example, in Gantt v. Roe, 389 F.3d 908, 914 n.8 (9th Cir. 2004), the police first showed an eyewitness a picture of a car owned by an initial suspect named Wilson, which the witness identified as the car he had seen the morning of the crime. The police then showed the witness a six-photo lineup including Wilson’s photo, and “sure enough, [the witness] selected Wilson as someone who ‘looked like the pedestrian he had seen,’” even though Wilson was eventually shown to have zero connection to the crime. Id.; see also Newsome v. McCabe, 256 F.3d 747, 749 (7th Cir. 2001) (there was ample evidence that police officers had “encouraged two witnesses to select [the defendant, who was exonerated after 15 years in prison,] from a lineup . . . yet withheld from the prosecutors information about their coaching of the witnesses and the fact that these witnesses earlier selected pictures from a book of mug shots that did not contain [the defendant]’s photo”).

[16] See, e.g., Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) (the defendant claimed his confession was coerced, while the detectives argued otherwise); Milke, 711 F.3d at 1002 (Detective Saldate claimed that Milke confessed to the murder during her interrogation, while Milke maintained that Saldate ignored herrequestforalawyerand“embellishedandtwisted[her]statementstomakeitsoundlikeshehadconfessed”). In both these cases, we lacked access to a video or audio recording to ascertain what really happened

[17] This practice has been adopted in England, Ireland and Australia, where the general rule is that all interrogations—and not just confessions—must be recorded on audio or video. However, Australia is the only country that explicitly provides that the consequence for failing to record is inadmissibility of the contents of the interrogation. See TOM SULLIVAN, COMPENDIUM: ELECTRONIC RECORDING OF CUSTODIAL INTERROGATIONS, NationalAssociation of Criminal Defense Lawyers, July 11, 2014, available at http://www. nacdl.org/WorkArea/DownloadAsset.aspx?id33287&libID33256. In addition, a number of states, including Alaska, Arkansas, Minnesota, Montana and New Jersey, require all interrogations to be recorded and consider compliance with that requirement a factor in determining whether a statement made in an interrogation is admissible. See id.

[18] See Henry Weinstein, Use of Jailhouse Testimony is Uneven in State, L.A. TIMES (Sept. 21, 2006), http://articles.latimes.com/2006/sep/21/local/me-jailhouse21.

[19] Id

[20] See supra n.107

[21] See Russell D. Covey, Abolishing Jailhouse Snitch Testimony, 49 WAKE FOREST L. REV. 1375, 1376-1409 (2014).

[22] See Tim Cushing, Judge Resigns from Forensic Science Committee, Calls Out DOJ’s “Trial By Ambush” Tactics,TECHDIRT (Feb. 5, 2015), https://www.techdirt.com/articles/20150202/11152629883/judgeresigns-forensic-science-committee-calls-out-dojs-trial-ambush-tactics.shtml; Spencer S. Hsu, U.S. To Commit Scientists and New Commission To Fix Forensic Science,WASH.POST (Feb. 15, 2013), http://www. washingtonpost.com/local/crime/us-to-commit-scientists-and-new-commission-to-fix-forensic-science/ 2013/02/15/e11c31f8-77b3-11e2-8f84-3e4b513b1a13_story.html

[23] See Full Text: Judge’s Protest Resignation Letter,WASH.POST (Jan. 29, 2015), http://www. washingtonpost.com/local/full-text-judges-protest-resignation-letter/2015/01/29/41659da6-a7e1-11e4a2b2-776095f393b2_story.html.

[24] Id

[25] Id

[26] See Spencer S. Hsu, Judge Rakoff Returns to Forensic Panel After Justice Department Backs Off Decision,WASH.POST (Jan. 30, 2015), http://www.washingtonpost.com/local/crime/in-reversal-doj-letsforensic-panel-suggest-trial-rule-changes-after-us-judge-protests/2015/01/30/2f031d9e-a89c-11e4-a2b 2-776095f393b2_story.html.

[27] Various District Attorneys’ offices in 12 states, as well as the U.S. Attorney’s Office in Washington, D.C., have established conviction integrity units for the purpose of identifying and investigating wrongful conviction claims, often in collaboration with local innocence projects. See Center for Prosecutor Integrity, CONVICTION INTEGRITY UNITS, http://www.prosecutorintegrity.org/ (last visited Mar. 18, 2015); CENTER FOR PROSECUTOR INTEGRITY,CONVICTION INTEGRITY UNITS:VANGUARD OF CRIMINAL JUSTICE REFORM 9 (Dec. 2014), available at http://www.prosecutorintegrity.org/wp-content/uploads/2014/12/ Conviction-Integrity-Units.pdf (noting that these conviction integrity units have produced a total of 61 exonerations, with 33 attributed to the unit in Dallas, Texas); Gardiner, supra n.46 (Brooklyn DA Kenneth Thompson overhauled the office’s conviction integrity unit and, in a mere 7 months, has ordered 7 murder convictions overturned).

[28] See, e.g., Marisa Gerber, L.A. County D.A. to Create Unit to Review Wrongful-Conviction Claims, L.A. TIMES (Apr. 22, 2015), http://www.latimes.com/local/lanow/la-me-ln-conviction-review-unit-201504 22-story.html#page1; Jim Forsyth, Bexar DA Establishes “Conviction Integrity Unit”, WOAI LOCAL NEWS (Feb. 25, 2015), http://www.woai.com/articles/woai-local-news-sponsored-by-five-119078/bexar-daestablishes-conviction-integrity-unit-13288998/.

[29] See Brandi Grissom, supra n.77. In the words of the Houston Chronicle, “The fall of John Bradley was swift and severe and justified.” Lisa Falkenberg, Tossed from Office, Ex-Williamson DA Lands Job in Sunny Palau, HOUSTON CHRON. (July 1, 2014), http://www.houstonchronicle.com/news/ columnists/falkenberg/article/Falkenberg-5594473.php. Bradley lost the Republican primary for Williamson County District Attorney in 2012, a post he had held for a decade.

[30] Just recruiting the panel of experts, including a former F.B.I. official, to review the forensic evidence took Hinton and his lawyers almost a decade. SeeAlan Blinder, supra n.77; Anthony Ray Hinton Is Free After 30 Years Wrongfully On Death Row,EQUAL JUSTICE INITIATIVE (Apr. 3, 2015), http://www.eji. org/node/1064.

[31] See Sara Rimer, DNA Testing in Rape Cases Frees Prisoner After 15 Years, N.Y. TIMES (Feb. 15, 2002), http://www.nytimes.com/2002/02/15/us/dna-testing-in-rape-cases-frees-prisoner-after-15-years.html.

[32] See The National Registry of Exonerations, Frank Lee Smith, https://www.law.umich.edu/special/ exoneration/Pages/casedetail.aspx?caseid3644. Smith was exonerated on the basis of DNA testing results 11 months after his death in 2000 and 14 years after his conviction. He had requested DNA testing to no avail for 2 years.

[33] See Sue Russell, The Right and Privilege of Post-Conviction DNA Testing,PACIFIC STANDARD (Oct. 4, 2012), http://www.psmag.com/politics-and-law/the-right-and-privilege-of-post-conviction-dna-testing47781; Innocence Project, ACCESS TO POST-CONVICTION DNA TESTING (Oct. 10, 2014), http://www. innocenceproject.org/free-innocent/improve-the-law/fact-sheets/access-to-post-conviction-dna-testing.

[34] See Neb. Rev. Stat. § 29-4120

[35] Id

[36] Bandyopadhyay, S. & McCannon, B.C. Public Choice (2014) 161: 141. https://doi.org/10.1007/s11127-013-0144-0

[37] Novak, Andrew. “It's Too Dangerous to Elect Prosecutors.” The Daily Beast, The Daily Beast Company, 24 Aug. 2015, www.thedailybeast.com/its-too-dangerous-to-elect-prosecutors?ref=scroll.

[38] See Adam M. Gershowitz, Prosecutorial Shaming: Naming Attorneys to Reduce Prosecutorial Misconduct, 42 U.C. DAVIS L. REV. 1059, 1069-71 & n.21 (2009).

[39] United States v. Kojayan, 8 F.3d 1315, 1320 (9th Cir. 1993). The Justice Department reacted with typical insouciance: It filed a motion to depublish the opinion or, in the alternative, to amend the opinion to remove the AUSA’s name. USA’s Motion for Depublication, or in the Alternative, Modification of Opinion w/Declaration of AUSA Sinek, No. 95-50875, Dkt. 51 (Sept. 24, 1993); see supra n.129.

[40] No. 13-56132, 2015 WL 412835, at *1 (9th Cir. Jan. 30, 2015).

[41] See 13-56132 Johnny Baca v. Derral Adams,YOUTUBE (Jan. 8, 2015), https://www.youtube.com/ watch?v2sCUrhgXjH4.

[42] Appellee’s Unopposed Motion for Summary Reversal and Remand to the District Court to Conditionally Grant the Writ, Baca v. Adams (Jan. 29, 2015) (No. 13-56132, Dkt. 33).

[43] A memorable example is United States v. Maloney, 755 F.3d 1044 (9th Cir. 2014) (en banc). The AUSA had sandbagged the defense at trial by making for the first time a factual assertion not in the record in his rebuttal during closing argument. At oral argument, I asked the AUSA to go back and show the video of the oral argument to the U.S. Attorney and “see whether this [conduct] is something [she] want[s] to be teaching [her] line attorneys.” 11-50311 United States v. Maloney,YOUTUBE (Sept. 19, 2013), https://www.youtube.com/watch?vHgafGnA4Eow, at 59:00. A little over two weeks later, we received a letter from Laura Duffy, the U.S. Attorney herself, admitting that the AUSA had acted improperly and promising to “use the video of the argument as a training tool to reinforce the principle that all Assistant U.S. Attorneys must be aware of the rules pertaining to closing argument and must make every effort to stay well within these rules.” Motion to Summarily Reverse the Conviction, Vacate the Sentence and Remand to the District Court, United States v. Maloney (Oct. 7, 2013) (No. 11-50311, Dkt. 52-1). Bravo Ms. Duffy!

[44] But not always successful. In our opinion vacating Milke’s conviction, we made an express referral of the matter to the Justice Department based on what appeared to us to be knowing and repeated use of perjured testimony by Detective Saldate in a large number of criminal prosecutions. Milke, 711 F.3d at 1019-20. The Justice Department declined to investigate the matter, yet evidence that Milke’s case was not an isolated incident was readily available. For example, in a recent letter to the editor complaining about Milke’s release, a colleague of Saldate’s in the 1980s stated: “I am painfully aware that Detective Armando Saldate and his now deceased partner were notorious for bending the rules, especially when it came to suspect interviews. Other homicide detectives attempted to make supervisors aware of these serious issues. They were met with disdain and angrily told that if they couldn’t be a team player, they could find another place to work. Nothing else was said for fear of retaliation, and no corrective steps were taken.” See Antonio Morales Jr., Op-ed, Milke Doesn’t Deserve Her Freedom, AZ CENTRAL (Mar. 20, 2015), http://www.azcentral.com/story/opinion/letters/2015/03/19/milke-deserve-freedom/25057 361/. If evidence of such widespread misconduct in the highest level of a metropolitan police department is unworthyofevenaninvestigationbytheU.S.JusticeDepartment,onemustwonderwhatis.

[45] See Imbler v. Pachtman, 424 U.S. 409, 430, 431 n.34 (1976) (prosecutors are absolutely immune for “activities [that are] intimately associated with the judicial phase of the criminal process,” including the willful suppression of exculpatory evidence).  

[46] See Henry F. Schuelke III, Special Counsel, Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, supra n.119.

[47] See Id

[48] These orders are routine among all the district judges in the Eastern District of Washington. See, e.g., Judge Justin Quackenbush, Scheduling Order at 1, No. 2:15-CR-0025-JLQ (E.D. Wa. Mar. 23, 2015) (“the United States shall forthwith provide, when received, all relevant material required by Brady and by Giglio”) (citations omitted); Judge Edward Shea, Case Management Order at 4, No. 4:14-CR-6053-EFS (E.D. Wa. Feb. 13, 2015) (“The Court further presumes a request for discovery and disclosure under Federal Rules of Evidence 404(b), 608(b), and 609, Brady, Giglio, United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), and their progeny.”) (citations omitted).

[49] Jason Kreag, The Brady Colloquy, 67 STAN. L. REV.ONLINE 47 (2014).

[50] Id at 50

[51] See Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 CASE W. RES. L. REV. 531, 534 (2007), available at http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article1535&contextlawfaculty (“Prosecutorial disclosure of Brady evidence is not automatic. Prosecutors are typically required to provide Brady evidence only upon a request.”); FED.JUDICIAL CTR., TREATMENT OF BRADY V. MARYLAND MATERIAL IN UNITED STATES DISTRICT AND STATE COURTS’ RULES, ORDERS, AND POLICIES 14 (2007), available at https://bulk.resource.org/courts.gov/fjc/bradyma2.pdf.

[52] See LAURAL HOOPER ET AL., FED.JUDICIAL CTR., A SUMMARY OF RESPONSES TO A NATIONAL SURVEY OF RULE 16 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE AND DISCLOSURE PRACTICES IN CRIMINAL CASES: FINAL REPORT TO THE ADVISORY COMMITTEE ON CRIMINAL RULES (2011), available at http://www.uscourts.gov/ uscourts/RulesAndPolicies/rules/Publications/Rule16Rep.pdf.

[53] Courts that require the government to provide criminal discovery without a motion include the District of Hawaii, District of Kansas, District of New Hampshire, District of New Mexico, Western District of Texas, Eastern District of Washington and Eastern District of Wisconsin. Courts that imply as much include the Middle District of Alabama, Southern District of Alabama, Northern District of California, District of Massachusetts, Northern District of New York and the District of Vermont. See id. at 18.

[54] U.S. District Court for the Eastern District of Washington, Local Crim. R. 16(a), available at http://www.waed.uscourts.gov/sites/default/files/Local_Criminal_Rules-20150303_0.pdf.

[55] Id. (citations omitted).

[56] See, e.g., Nancy Gertner, Judges Need to Set a Higher Standard for Forensic Evidence, N.Y. TIMES (Mar. 30, 2015), http://www.nytimes.com/roomfordebate/2015/03/30/robert-durst-handwriting-andjudging-forensic-science/judges-need-to-set-a-higher-standard-for-forensic-evidence; Nancy Gertner, Commentary on the Need for a Research Culture in the Forensic Sciences, 58 UCLA L. REV. 789, 793 (2011).

[57] See David E. Bernstein, The Misbegotten Judicial Resistance to the Daubert Revolution, 89 NOTRE DAME L. REV. 27, 50-66 (2013). Moreover, “[s]tatistics substantiate the ubiquity of defense failure to initiate Daubert challenges, confirming the rarity in the trial courts of any defense challenge to a prosecutor’s proffered expert testimony.” See also Peter J. Neufeld, The (Near) Irrelevance of Daubert to Criminal Justice and Some Suggestions for Reform, 95 AM. J. PUB.HEALTH 107, 110 (2005).

[58]  See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997).

[59] See supra pp. vi-vii and accompanying footnotes

[60] Monroe H. Freedman, The Unconstitutionality of Electing State Judges, 26 GEO. J. LEGAL ETHICS 217 (2013).

[61]  536 U.S. 765 (2002).

[62] Freedman, supra n.201, at 218.

[63] See Jennifer Emily, Dallas DA Accused of Pushing Prosecutors to Run Against Judges, THE DALLAS MORNING NEWS (Oct. 7, 2013), http://www.dallasnews.com/news/politics/local-politics/20131006da-accused-of-pushing-prosecutors-to-run-against-incumbent-judges.ece (six prosecutors from the Dallas County DA’s office were running for state district judge benches, five of whom were challenging incumbent Democratic judges).

[64] See Michelle Quinn, District Attorney’s Boycott of a Judge Raises Issues, N.Y. TIMES (Mar. 20, 2010), http://www.nytimes.com/2010/03/21/us/21sfcourt.html?pagewantedall&_r0 (Santa Clara County DA disqualified one judge from 100 cases as retaliation for the judge freeing a child molester after the deputy DA provided false testimony and withheld exculpatory evidence); Maureen Cavanaugh & Pat Finn, San Diego’s Great Judge Boycott, KPBS (Feb. 22, 2010) http://www.kpbs.org/news/2010/feb/22/sandiegos-great-judge-boycott/ (discussing the boycott of certain judges by the San Diego County DA’s office after those judges had either made rulings against the prosecution or criticized prosecutors for failing to disclose exculpatory evidence).

[65] Prosecutors from the Orange County DA’s office made blanket disqualification requests against Judge Thomas Goethals in his other criminal cases as soon as he began probing into the misuse of jailhouse informants in the Dekkrai murder trial. See supra n.131; Eric Hartley, Prosecutors Avoiding Judge They Say Is Biased, O.C. REG. (June 13, 2014), http://www.ocregister.com/articles/prosecutors-6182 07-goethals-judge.html?page1. The Orange County Bar Association took notice and passed Resolution 15R-01, titled “Independence of the Judiciary,” in which it stated that it “publicly disapproves of the use of tactics which are, or have the appearance of being, punitive and retaliatory towards any sitting judge,” and that “the excessive use of [the affidavit procedure] against a particular judge can be . . . inappropriate . . . and could be construed as an attempt to intimidate not just that judge, but the entire judiciary, who will and must remain independent.” See Orange Cnty. Bar Ass’n, Resolution 15R-01: Independence of the Judiciary (Mar. 27, 2015), http://www.ocbar.org/Portals/0/pdf/press_releases/2015/2015_03_30_OCBA_ ResolutionR15-01.pdf.

[66] See supra n.129 (again, life tenure is a wonderful thing).

[67] 424 U.S. 409, 430, 431 n.34 (1976).

[68] Id. at 438-45 (White, J., concurring). In fact, on May 1, 2015, the Supreme Court of Canada reversed course and embraced a similar rule. See Henry v. British Columbia (Attorney General), [2015] S.C.C. 24 (Can.) (government may be sued when prosecutors intentionally withhold evidence favorable to the defense).

[69] Id. at 428-29.

[70] Texas district attorney Ken Anderson, see supra n.77, went to jail for five days (serving only half of his 10-day sentence) for hiding evidence that put Michael Morton in prison for a quarter of a century. And he got even that much because he was found in contempt of a Brady compliance order entered by the trial judge in that case. See Texas Prosecutor to Serve 10 Days for Innocent Man’s 25-Year Imprisonment, THE GUARDIAN (Nov. 8, 2013), http://www.theguardian.com/world/2013/nov/08/texas-prosecutor-kenanderson-michael-morton-trial. None of the prosecutors who concealed evidence in the Stevens criminal case were prosecuted, and the two who were initially disciplined by the DOJ got their sanctions overturned by the Merit Systems Protection Board. See supra n.175. Mike Nifong, the district attorney who committed widespread misconduct when prosecuting the Duke Lacrosse players, was convicted of criminal contempt but sentenced to just one day in jail. See supra n.136. The list of prosecutors who have committed misconduct causing serious, lasting harm to innocent people and who have not themselves been criminally prosecuted is very long indeed. I am aware of no prosecutors, other than Ken Anderson and Mike Nifong, who have been convicted of prosecutorial misconduct.

[71] For example, Trinidad County, Colorado District Attorney Frank Ruybalid pleaded guilty to over a dozen instances of professional misconduct and had his law license suspended for six months, but that suspension was immediately suspended, even though “private attorneys ‘have received sanctions more severe than a six-month stayed suspension’ for conduct similar to Ruybalid’s.” See Alan Prendergast, Frank Ruybalid, Trinidad District Attorney, Cops a Plea, Admits Misconduct,WESTWORD (Jan. 29, 2015), http://www.westword.com/news/frank-ruybalid-trinidad-district-attorney-cops-a-plea-admits-misconduct6282816 (quoting the settlement agreement).

[72] Nor have courts been eager to uphold sanctions imposed by professional organizations. See, e.g., In re Kline, No. 13-BG-851, at 2-3 (D.C. Ct. App. Apr. 9, 2015), available at http://www.dccourts.gov/ internet/documents/13-BG-851.pdf (despite finding that “Bar Counsel proved by clear and convincing evidence that [the prosecutor] intentionally failed to disclose information in violation of [a D.C. Rule of Professional Conduct prohibiting prosecutors from intentionally withholding exculpatory evidence from the defense in a criminal case], the panel concluded that “given the confusion regarding the correct interpretation of a prosecutor’s obligations under the rule, sanctioning [the prosecutor] would be unwarranted”). One can hope that prosecutors in the District of Columbia will no longer be confused as to their disclosure obligations after In re Kline.

[73] See POWELL, supra n.116, at 397-401.

[74] 555 U.S. 335 (2009).

[75] Id. at 339.

[76] Id. at 349 (“[W]here a § 1983 plaintiff claims that a prosecutor’s management of a trial-related information system is responsible for a constitutional error at his or her particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself.”).

[77] See, e.g., Messerschmidt v. Millender, 132 S. Ct. 1235 (2012); see also Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en banc) (police have only qualified immunity for allegedly fabricating evidence in a criminal case); Gantt v. City of Los Angeles, 717 F.3d 702 (9th Cir. 2013) (same).

[78] Though it raises other questions, it’s also worth taking another look at absolute judicial immunity. See Timothy M. Stengel, Absolute Judicial Immunity Makes Absolutely No Sense: An Argument for an Exception to Judicial Immunity, 84 TEMP. L. REV. 1071 (2012) (arguing that absolute judicial immunity should be removed in cases where malice or corruption is substantiated).

[79] Baude, William, Is Qualified Immunity Unlawful? (February 18, 2018). 106 California Law Review 45, 2018; U of Chicago, Public Law Working Paper No. 610.

[80] BRIEF OF CROSS-IDEOLOGICAL GROUPS DEDICATED TO ENSURING OFFICIAL ACCOUNTABILITY, RESTORING THE PUBLIC’S TRUST IN LAW ENFORCEMENT, AND PROMOTING THE RULE OF LAW AS AMICI CURIAE IN SUPPORT OF PETITIONER; Doe v. Woodard, No. 18-1066 (10th Cir. 2019)

[81] LDF Statement on the Non-Indictment of Cleveland Police Officers in the Shooting Death of Tamir Rice, NAACP LEGAL DEFENSE FUND (Dec. 28, 2015), http://www.naacpldf.org/pressrelease/ldf-statement-non-indictment-cleveland-police-officers-shooting-death-tamir-rice [https://perma.cc/9KMQ-PCFA].

[82] Baude, William, Is Qualified Immunity Unlawful? (February 18, 2018). 106 California Law Review 45, 2018; U of Chicago, Public Law Working Paper No. 610.

 

[83] from, Spooner, Lysander “Vices Are Not Crimes: A Vindication of Moral Liberty (1875)

[84] Michael J. Saks, et al., “Model Prevention and Remedy of Erroneous Convictions Act,” Arizona State Law Journal, vol. 33, 2001.

[85] United States Department of Justice, Office of the Inspector General, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (http://www.usdoj.gov/oig/special/97-04a/index.htm, 1997)

[86] National Research Council. 2009. Strengthening Forensic Science in the United States: A Path Forward. Washington, DC: The National Academies Press at 23-24.

[87] Morissette v. United States 342 U.S. 246, 250 (1952)

[88] Paul Rosenzweig, Congress Doesn’t Know Its Own Mind—And That Makes You a Criminal, Heritage Foundation Legal Memorandum No. 98 (July 18, 2013), available at http://www.heritage.org/research/reports/2013/07/congress-doesnt-know-its-own-mind-and-that-makes-you-a-criminal.

[89] See Josh Siegel, How Michigan and Ohio Made It Harder to Accidentally Break the Law, Daily Signal (Jan. 27, 2016), http://dailysign.al/21L3b0L [perma.cc/8F4W-L6J7]; John S. Baker, Jr., Mens Rea and State Crimes, Federalist Society White Paper (2012), http://bit.ly/1QwwzRq [perma.cc/5QFF-4AHB] (noting states that have default mens rea provisions, including Alaska, Arkansas, Delaware, Hawaii, Illinois, Kansas, Missouri, North Dakota, Oregon, Pennsylvania, Tennessee, Texas, and Utah).

[90] from, Spooner, Lysander “Vices Are Not Crimes: A Vindication of Moral Liberty (1875)
Lysander Spooner (1808–1887) is an American individualist anarchist and legal theorist and also the author of some of the most radical political and economic writings of the 19th century, and continues to have a huge influence on libertarian thinkers today. He was a dedicated opponent of slavery in all its forms but also a dedicated opponent of the federal invasion of the South and its postwar reconstruction.