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Critiques of the Judiciary
How confident are we that every one of the 2.2 million people in prisons and jails across the country are in fact guilty?

-- Judge Alex Kozinski
Prosecutorial Misconduct and What Can Be Done About It

Alex Kozinski, a judge on the United States Ninth Circuit Court of Appeals since 1985, is a frequent commentator on judicial matters and has once again shared with the public his views on the judiciary in a lengthy Preface to "Criminal Law 2.0," published in Georgetown Law Journal, Annual Review of Criminal Procedure, 44th Edition, 2015.  Excerpted below, and adapted for this website, are his thoughts on prosecutorial misconduct.  The complete, 42-page article has been serialized for The Washington Post by Eugene Volokh.

Prosecutorial Misconduct and Wrongful Convictions
July, 2015

The National Registry of Exonerations has recorded 1,576 exonerations in the United States since 1989. Of these exonerated individuals, 112 were sentenced to death, and 265 spent more than 20 years behind bars. The average time spent in prison was 9 years, with 40 percent imprisoned for more than 10 years. Eighty (80) percent were convicted by juries, 7 percent by judges and 12 percent pleaded guilty.

Twenty-five (25) percent were exonerated, at least in part, by DNA evidence. The following factors contributed to their exonerations: mistaken witness identification (34% of exonerations); perjury or false accusation (55%); false confession (13%), defective or misleading forensic evidence (22%) and official misconduct (46%). Cases often involve more than one of these factors.

The year 2014 alone saw a record high of 125 exonerations, up from 91 the year before, and there is reason to believe the trend will continue. Of the 125 exonerations in 2014 involved defendants who had pleaded guilty. The exonerations were mostly concentrated in California, Texas, New York and Illinois. According to an in-depth study by San Francisco magazine, between 1989 and 2004, more than 200 California inmates were freed after courts found they were wrongfully convicted.

 Judge Alex Kozinski
Judge Alex Kozinski
Photo: 9th Circuit Court of Appeals

Their stories are the stuff of nightmares. Take, for example, Gloria Killian, a 30-something former law student who had signed up to do freelance detective work for a coin shop owner. One day, an elderly coin collector was robbed and killed, and someone called the Sacramento police accusing "a law student named Gloria" of being involved. Nothing came of this accusation until a year later, when a repeat felon named Gary Masse was convicted of the murder and sentenced to life without parole. He named Killian as his accomplice and claimed she masterminded the robbery. The accusation stuck, and Killian was convicted of conspiracy and murder, and sentenced to 32 years to life. Masse got his sentence reduced to 25 years.

Over a decade later, a new investigation uncovered evidence that Masse had entered into an agreement with prosecutors to testify against Killian in exchange for leniency — a fact never disclosed to the defense. The investigation also turned up a letter Masse sent to the DA soon after Killian was sentenced, in which he wrote: "I lied my ass off for you people." A panel of our court reversed Killian's conviction in 2002, at which point she had already lost 16 years of her life to prison. The prosecutor walked away with an admonishment from the California State Bar.

Certainly, the significant number of inmates freed in recent years as the result of various innocence projects, and especially as a result of DNA testing in cases where the convictions were obtained in the pre-DNA era, should cause us to question whether the current system is performing as effectively as we've been led to believe. It's no answer to say that the exonerees make up only a minuscule portion of those convicted. For every exonerated convict, there may be dozens who are innocent but cannot prove it.

We can be reasonably confident that the system reaches the correct result in most cases, but that is not the test. Rather, we must start by asking how confident we are that every one of the 2.2 million people in prisons and jails across the country are in fact guilty. And if we can't be sure, then what is an acceptable error rate? How many innocent lives and families are we willing to sacrifice in order to have a workable criminal justice system?

If we put the acceptable error rate at 5 percent, this would mean something like 110,000 innocent people incarcerated across the country. A 1 percent error rate would mean 22,000 innocent people — more or less the population of Nogales, Arizona — wrongly imprisoned. These numbers may seem tolerable unless, of course, you, your friend or loved one draws the short straw.

Do we know how these numbers compare to the actual error rate? We have no idea. What we have is faith that our system works very well and the errors, when they are revealed, are rare exceptions.

Much hinges on retaining this belief: Our self image as Americans; the pride of countless judges and lawyers; the idea that we live in a just society; confidence in the power of reason and logic; the certainty that none of us or our loved ones will face the unimaginable nightmare of unjust imprisonment or execution; belief in the incomparable integrity and accuracy of our system of justice; faith that we have transcended medieval methods of conviction and punishment so that only those who are guilty are punished, and their punishment is humane and proportionate. There are, we are convinced, no Edmond Dantèses and no Cháteau d'Ifs in America today.

But what do we really know? We must reject out of hand the idea that the number of actual exonerations represents all of those who have been wrongly convicted.

Convicted prisoners wishing to gain release on grounds of innocence face formidable hurdles. To begin with, they are in prison and thus unable to pursue leads the police might have missed; they have to rely on someone on the outside to do it, and that's often difficult or impossible to accomplish. A prisoner's access even to his counsel is severely restricted once he's incarcerated. A loyal friend or relative might do it, but friends and even relatives often abandon defendants who are convicted, no matter how much they may protest their innocence.

A few prisoners may obtain the help of an innocence project, but the work is labor-intensive, resources are scarce and manpower is limited, so innocence projects engage in triage, focusing on the most promising cases. Of course, it's often difficult to tell whether a case is promising until you look closely at it, so a promising case can easily be overlooked.

But the biggest problem is that new evidence is hard — and often impossible — to find. If it's a physical crime, police secure the crime scene and seize anything that looks like it could be relevant. The chance of going back years later and picking up new clues is vanishingly small. The trick then is to get whatever evidence the police have, assuming they didn't destroy it or release it once it was clear that it wouldn't be used at trial. If the crime is non-physical, such as fraud, child pornography or computer hacking, the police seize all the relevant computers, hard drives and paper records (including any exculpatory evidence the suspect may have there) and may well discard them after the conviction becomes final.

For a brief period, DNA evidence helped exculpate defendants who were convicted in the pre-DNA era, but DNA often cannot help identify the true perpetrator because no sample of DNA was found or collected from the crime scene. A prisoner has to be exceedingly lucky to collect enough evidence to prove his innocence; most cannot hope to meet that standard. I think it's fair to assume — though there is no way of knowing — that the number of exculpations in recent years understates the actual number of innocent prisoners by an order, and probably two orders, of magnitude.

Wrongful convictions are not merely unjust to the prisoner and his family, they often result in another injustice or series of injustices: When an innocent man is convicted, a guilty man is left free and emboldened to victimize others.

The Michael Morton case provides a good example. Morton was convicted in 1987 for the 1986 beating murder of his wife. Twenty-five years later he was exonerated when DNA evidence pointed to another man, Mark Norwood, who was eventually convicted of killing Mrs. Morton. However, Norwood has now been charged with the similar beating-death of another woman, Debra Baker; that murder was committed a year after Morton was convicted of his wife's murder. Norwood is awaiting trial for the Baker murder. Had police continued to investigate the Morton murder instead of shutting down the investigation once they decided that Michael Morton was the culprit, Debra Baker might still be alive.

For other examples of exonorees on this website, see the cases of Glenn Ford, Anthony Graves, Sabein Burgess, and John Thompson.

-- tulanelink.com

There's another question the answer to which we must be reasonably confident: Of those that are guilty, can we be sure that substantial numbers are not spending far more time behind bars than is justified? The question of how much time prisoners spend behind bars is no less important than that of whether only the guilty are being locked up. The ability to pick up the threads of one's life after three to five years in prison is quite different than after fifteen, twenty or twenty-five years.

Aside from the brutalizing and often dehumanizing effect of long-term imprisonment, an inmate who is released after a lengthy prison term simply does not return to the same world he left behind: Children grow up; spouses find other partners; friends and acquaintances forget; job prospects disappear; life and work skills deteriorate. Shorter sentences also reduce the consequences of wrongful convictions. While no time behind bars can be justified for someone who is innocent, we must be especially careful before imposing life-altering sentences.

By any measure, the United States leads the world in incarceration. In absolute terms, it has more prisoners than any other country. With just 5 percent of the world's population, we have almost a quarter of the world's prisoners. China, with nearly 20 percent of the world's population, has 16 percent of the world's prisoners. Incarceration rates were not always this high in the United States. For the first three-quarters of the twentieth century, the rate was well under 250 per 100,000. Then, starting around 1980, incarceration rates started rising sharply with the advent of the war on drugs, mandatory minimum sentences and three-strikes laws.

The difference in incarceration rates cannot be explained by higher crime rates in the United States. Crime rates here are roughly equivalent to Canada, and in many categories lower than other countries. And the crime rate has been dropping in the United States, as in many other industrialized nations. Yet, U.S. sentences are vastly, shockingly longer than just about anywhere else in the world.

There are reasons to doubt whether the length of prison sentences in this country is just. Although elected officials, regardless of party affiliation and political leaning, seem to favor Draconian sentences, and the public seems to support them in the abstract, it's unclear how much popular support they enjoy when applied to individual defendants.

U.S. District Judge James Gwin of Ohio reported on an informal study he conducted involving 22 jury trials. He asked the jurors who had convicted the defendant to write down what each thought was the appropriate sentence. Judge Gwin found that the jurors' recommended sentences were significantly lower than those recommended by the Sentencing Guidelines: "In several cases, the recommended median Guidelines range was more than 10 times greater than the median jurors' recommendation. Averaged over more than 20 cases, jurors recommended sentences that were 37% of the minimum Guidelines recommended sentences and 22% of the median Guidelines recommended sentences."

Whether we are incarcerating the right people and for an appropriate length of time are important questions to which we do not have very good answers. We are taught early in our schooling that the criminal justice system is tilted heavily in favor of defendants, resolving all doubts in their favor. Movies and television reinforce this idea with countless stories of dedicated police and prosecutors bringing guilty people to justice, or of acquittals of the innocent because of the efforts of a dedicated lawyer or investigator. Our educational system spends little time pondering the fate of those unjustly convicted or those wasting their lives behind bars because of a punishment that far outstrips whatever evil they were convicted of committing. No Dumas, Hugo or Zola has risen among us to foment public sympathy to the plight of the unjustly imprisoned.

The reader is invited to read about former New Orleans attorney, Ashton R. O'Dwyer, Jr., and view the YouTube video: U.S. Citizen Ashton R. O'Dwyer, Jr.; Part I: Abducted, Brutalized, Tortured, & Falsely Imprisoned.

-- tulanelink.com

Prosecutorial Misconduct Explained
July, 2015

Prosecutors hold tremendous power, more than anyone other than jurors, and often much more than jurors because most cases don't go to trial. Prosecutors and their investigators have unparalleled access to the evidence, both inculpatory and exculpatory, and while they are required to provide exculpatory evidence to the defense under Brady, Giglio, and Kyles v. Whitley, it is very difficult for the defense to find out whether the prosecution is complying with this obligation.

Prosecutors also have tremendous control over witnesses: They can offer incentives — often highly compelling incentives — for suspects to testify. This includes providing sweetheart plea deals to alleged co-conspirators and engineering jail-house encounters between the defendant and known informants.

Sometimes they feed snitches non-public information about the crime so that the statements they attribute to the defendant will sound authentic. And, of course, prosecutors can pile on charges so as to make it exceedingly risky for a defendant to go to trial. There are countless ways in which prosecutors can prejudice the fact-finding process and undermine a defendant's right to a fair trial.

This, of course, is not their job. Rather, as the Supreme Court has held, "[A prosecutor] is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones."

All prosecutors purport to operate just this way, and I believe that most do. My direct experience is largely with federal prosecutors and, with a few exceptions, I have found them to be fair-minded, forthright and highly conscientious.

But there are disturbing indications that a non-trivial number of prosecutors — and sometimes entire prosecutorial offices — engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.

Prosecutorial misconduct is a particularly difficult problem to deal with because so much of what prosecutors do is secret. If a prosecutor fails to disclose exculpatory evidence to the defense, who is to know? Or if a prosecutor delays disclosure of evidence helpful to the defense until the defendant has accepted an unfavorable plea bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they know to be liars, or if they acquiesce in a police scheme to create inculpatory evidence, it will take an extraordinary degree of luck and persistence to discover it — and in most cases it will never be discovered.

There are distressingly many cases where such misconduct has been documented, but I will mention just three to illustrate the point. The first is United States v. Stevens, the prosecution of Ted Stevens, the longest serving Republican Senator in history.

Senator Stevens was charged with corruption for accepting the services of a building contractor and paying him far below market price — essentially a bribe. The government's case hinged on the testimony of the contractor, but the government failed to disclose the initial statement the contractor made to the FBI, that he was probably overpaid for the services. The government also failed to disclose that the contractor was under investigation for unrelated crimes and thus had good reason to curry favor with the authorities.

Stevens was convicted just a week before he stood for re-election, and in the wake of the conviction he was narrowly defeated, changing the balance of power in the Senate. The government's perfidy came to light when a brave FBI agent by the name of Chad Joy blew the whistle on the government's knowing concealment of exculpatory evidence.

Did the government react in horror at having been caught with its hands in the cookie jar? Did Justice Department lawyers rend their garments and place ashes on their head to mourn this violation of their most fundamental duty of candor and fairness? No way, no how. Instead, the government argued strenuously that its ill-gotten conviction should stand because boys will be boys and the evidence wasn't material to the case anyway.

It was only the extraordinary persistence and the courageous intervention of District Judge Emmet Sullivan, who made it clear that he was going to dismiss the Stevens case and then ordered an investigation of the government's misconduct that forced the Justice Department to admit its malfeasance — what else could it do? — and move to vacate the former senator's conviction. Instead of contrition, what we have seen is Justice Department officials of the highest rank suffering torn glenoid labrums from furiously patting themselves on the back for having "done the right thing."

This wasn't the only prosecution that has had profound effects on American politics. A revelation in journalist Judith Miller's new memoir, The Story: A Reporter's Journey, exposes unscrupulous conduct by Special Counsel Patrick J. Fitzgerald in the 2007 trial of I. Lewis 'Scooter' Libby. According to [columnist Peter] Berkowitz, "It is painful to contemplate how many lives — American and Iraqi — might have been spared had Mr. Libby, the foremost champion within the White House in 2003 of stabilizing Iraq through counterinsurgency operations, not been sidelined and eventually forced to resign because of Mr. Fitzgerald's multiyear investigation and relentless federal prosecution."

Overly aggressive prosecution also wrecked the political career of longtime Iowa state legislator Henry Rayhons. The Attorney General of Iowa charged 78-year-old Rayhons with rape for having sex with his own wife, who was afflicted with Alzheimer's. By the time the jury acquitted Rayhons, he had withdrawn from the re-election race for a seat he had held for 18 years.

The second case comes from my own experience. The defendant was Debra Milke, who spent 23 years on Arizona's death row after a conviction and sentence obtained in 1990 based on an oral confession she supposedly made to Phoenix police detective Armando Saldate Jr. as a result of a 20-minute interrogation. No one was present in the room with Milke except Saldate, who refused to record the session despite his supervisor's admonition that he do so. When the session ended, Saldate came out with nothing in writing — not even a Miranda waiver — and claimed Milke had confessed; Milke immediately and steadfastly denied it.

The jury believed Saldate, but what the prosecution failed to disclose is that Saldate had a long and documented history of lying in court; he also had a serious disciplinary infraction bearing on his credibility: He had sought to extort sex from a lone female motorist and then lied about it when she reported the incident. It is not difficult to imagine that a jury may have been skeptical of Saldate's testimony that Milke confessed, had it known about his track record. But the Maricopa County District Attorney's office did not disclose this information, although it was party to many of the proceedings where Saldate had been found to be a liar.

The evidence remained hidden for two decades until an unusually dedicated team of lawyers and investigators spent hundreds of hours digging through all of the criminal prosecutions in Maricopa County during the era when Saldate had been an investigator. It winnowed down those cases and focused on those where Saldate provided evidence. And the state doggedly refused to turn over Saldate's disciplinary record until forced to disgorge it by an order of the district judge who considered Milke's federal habeas petition.

After we vacated the conviction and gave Arizona a chance to re-try Milke, the Arizona Court of Appeals barred any re-trial in an opinion so scathing it made The New York Times. The Court of Appeals described the "long course of Brady/Giglio violations in this case" as a "flagrant denial of due process" and "a severe stain on the Arizona justice system" — one that it hoped would "remain unique in the history of Arizona law." The Arizona Supreme Court recently denied the state's petition for review, so the Court of Appeals decision stands. Maricopa County Attorney Bill Montgomery lamented that "[t]he denial of [the] petition for review is a dark day for Arizona's criminal justice system."

The third case is unfolding as I write these words. It involves the prosecution in Orange County of Scott Dekraai, who was convicted of having shot several people at a hair salon, and is facing a capital penalty-phase trial.

The prosecution presented evidence from a jailhouse informant, Fernando Perez, whom Dekraai had purportedly confessed to. It turns out that Perez was a serial informant who had presented similar confessions. Defense counsel challenged the informant, and Superior Court Judge Thomas Goethals ordered the prosecution to produce evidence bearing on this claim. He eventually found that the Orange County District Attorney's office had engaged in a "chronic failure" to disclose exculpatory evidence pertaining to a scheme run in conjunction with jailers to place jailhouse snitches known to be liars near suspects they wished to incriminate, effectively manufacturing false confessions.

The judge then took the drastic step of disqualifying the Orange County District Attorney's office from further participation in the case. But this result came only after public defender Scott Sanders "wasted two years uncovering government misconduct, time that he could have spent preparing Dekraai's defense against the death penalty." Pulling an elephant's teeth is surely easier than extracting exculpatory evidence from an unwilling prosecution team.

These cases are hardly unique or isolated. But they illustrate that three ingredients must be present before we can be sure that the prosecution has met its Brady obligations under the law applicable in most jurisdictions. First, you must have a highly committed defense lawyer with significant resources at his disposal. Second, you must have a judge who cares and who has the gumption to hold the prosecutor's feet to the fire when a credible claim of misconduct has been presented.

And third, you need a great deal of luck, or the truth may never come out. The misconduct uncovered in the Milke and Dekraai cases seems to implicate many other cases where criminal defendants are spending decades in prison. We can only speculate how many others are wasting their lives behind bars because they lacked the right lawyer or the right judge or the luck needed to uncover prosecutorial misconduct.

Prosecutorial Misconduct Reforms
July, 2015

While most prosecutors are fair and honest, a legal environment that tolerates sharp prosecutorial practices gives important and undeserved career advantages to prosecutors who are willing to step over the line, tempting others to do the same. Having strict rules that prosecutors must follow will thus not merely avoid the risk of letting a guilty man free to commit other crimes while an innocent one languishes his life away, it will also preserve the integrity of the prosecutorial process by shielding principled prosecutors from unfair competition from their less principled colleagues.

Here are some potential reforms that would help achieve these goals:

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.

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. 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.

A far weaker law was proposed by several U.S. Senators following the disgraceful prosecutorial conduct during the Stevens case. The law would require prosecutors to disclose all information "that may reasonably appear to be favorable to the defendant." Despite support from both Democrats and Republicans, the bill has made no progress toward passage because of steadfast opposition from the U.S. Department of Justice.

In his 2012 Preface to these pages, Attorney General Eric Holder voiced a strong commitment to ensuring compliance with Brady and related discovery obligations, but all of the measures he mentions leave prosecutors 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's not in their hearts to look for ways to help the other side. If the Department of Justice wants to show its commitment to justice, it should drop its opposition to the Fairness in Disclosure of Evidence Act and help get it passed into law.

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."

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. Ensuring that the government complies with this obligation can't 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. 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."

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. 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 93 U.S. Attorneys' offices and the countless District Attorneys' offices across the country. Instead, the U.S. Justice Department and the justice department of every state must ensure compliance by setting standards and meaningfully disciplining prosecutors who willfully fail to comply. If they will not do it on their own, Congress and the state legislatures 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, 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.

This law, too, came as a result of a huge miscarriage of justice when Jennifer Thompson-Cannino mistakenly identified Ronald Cotton as her rapist. He spent 11 years in prison before he was exonerated by DNA evidence. The cases involving mistaken eyewitness identification are legion.

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. In those circumstances, whom 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. 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. 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.

It appears that change is underway. Just last year, the Justice Department reversed its century-old prohibition against recording interrogations and adopted a policy "establish[ing] a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody."

In fact, why don't police officers wear body cameras at all times? It would protect the suspect and the police officer. See Steve Tuttle, "Cambridge University Study Shows On-Officer Video Reduces Use-of-Force Incidents by 59 percent," TASER Int'l (Apr. 8, 2013). [The study showed] the use of "officer worn cameras reduced the rate of use-of-force incidents by 59 percent," and "utilization of cameras led to an 87.5 percent reduction in complaints" by citizens against police officers. See also U.S. Dep't of Justice, "Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned" (2014).

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. The use of informants consequently plummeted.

Even still, the practice of using jailhouse informants as a means of detecting and perhaps manufacturing incriminatory evidence has continued in California. 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. 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 two 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."

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." 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." 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."

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. 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 and more are being added. 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 and federal 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. And Anthony Ray Hinton spent more than fifteen years in prison fighting for the right to test evidence that eventually set him free. Bruce Godschalk lost seven years, and Frank Lee Smith died in prison waiting for DNA testing that eventually proved his innocence.

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. 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.

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.

8.   Establish independent Prosecutorial Integrity Units. In my experience, the U.S. Justice Department's Office of Professional Responsibility (OPR) seems to view its mission as cleaning up the reputation of prosecutors who have gotten themselves into trouble. In United States v. Kojayan, we found that Assistant United States Attorney Jeffrey Sinek had misled the district court and the jury. The district judge, who had trusted the AUSA, was so taken aback with the revelation that he barred further re-prosecution of the defendants as a sanction for the government's misconduct.

OPR investigated and gave the AUSA a clean bill of health. And no Justice Department lawyer has yet been sanctioned for the Stevens prosecution despite the clear evidence of willful misconduct. Prosecutors need to know that someone is watching over their shoulders — someone who doesn't share their values and eat lunch in the same cafeteria. Move OPR to the Department of Agriculture, and institute similar independent offices in the 50 states.

Adapted from: "Preface, Criminal Law 2.0," Georgetown Law Journal, Annual Review of Criminal Procedure, 44th Ed., 2015, and Eugene Volokh, "Judge Kozinski on wrongful convictions and excessively long sentences," The Washington Post, July 15, 2015; Judge Kozinski on prosecutorial misconduct," The Washington Post, July 17, 2015; and "Judge Kozinski on reforms that can help prevent prosecutorial misconduct," The Washington Post, July 17, 2015.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Additional Reading
  1. Connick v. Thompson, 563 U.S. ____ (2011).

  2. Tulanelink.com, "Prosecutorial Misconduct; Glenn Ford was freed after nearly 30 years in Louisiana's Angola Penitentiary."

  3. Tulanelink.com, "Charles Sebesta 'Disciplined' for Prosecutorial Misconduct; Anthony Graves spent 18 years in prison, including 12 years on death row, for murders he didn't commit."

  4. Tulanelink.com,"Deceptive Proscutors Ruled Immune from Accountability (Part 2); John Thompson reflects on his 18 years in prison for a murder he didn't commit."

  5. Tulanelink.com,"Dishonest Prosecutor Receives Slap on Hand."

  6. "Qualified Immunity: Striking the Balance for Prosecutor Accountability," Center for Prosecutor Integrity, 2014.













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