Judge Kozinski offers two more ways to improve the criminal justice system

|The Volokh Conspiracy |

Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit (official photo).
Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit (official photo)

Last Tuesday, I began serializing "Criminal Law 2.0," a new article by Judge Alex Kozinski—for whom I clerked 20 years ago, who is one of our nation's most prominent appellate judges and who has long been seen as on balance a libertarianish conservative (appointed by President Ronald Reagan). The introduction gave 12 reasons to worry about our criminal justice system. Wednesday's post discussed wrongful convictions. Thursday's post discussed the jury system, and ways to improve it. Friday's posts discussed prosecutorial misconduct and possible ways of preventing prosecutorial misconduct. Monday's post talks about what judges, especially trial judges, can do.

This post and one I will post this afternoon offer a total of six more suggestions about what can be done, whether through legislation or through the Supreme Court's reversal of some past decisions. I've added some paragraph breaks and removed the footnotes (which are available in the PDF version), but otherwise this is as Judge Kozinski wrote it:

On March 8, 2015, A.M. "Marty" Stroud III, a Shreveport lawyer and former state prosecutor, published a remarkable piece in the Shreveport Times reflecting on the case of Glenn Ford, who spent 30 years on death row after being convicted of murder and sentenced to death in 1984. Ford was released after the state disclosed evidence proving his innocence. Stroud offered a public apology for his conduct in the case. It is well worth reading in full, but here is the gist of it:

At the time this case was tried there was evidence that would have cleared Glenn Ford. The easy and convenient argument is that the prosecutors did not know of such evidence, thus they were absolved of any responsibility for the wrongful conviction.

I can take no comfort in such an argument …. Had I been more inquisitive, perhaps the evidence would have come to light years ago …. My mindset was wrong and blinded me to my purpose of seeking justice, rather than obtaining a conviction of a person who I believed to be guilty. I did not hide evidence, I simply did not seriously consider that sufficient information may have been out there that could have led to a different conclusion. And that omission is on me.

I did not question the unfairness of Mr. Ford having appointed counsel who had never tried a criminal jury case much less a capital one. It never concerned me that the defense had insufficient funds to hire experts ….

The jury was all white, Mr. Ford was African-American. Potential African-American jurors were struck with little thought about potential discrimination …. I also participated in placing before the jury dubious testimony from a forensic pathologist that the shooter had to be left handed …. All too late, I learned that the testimony was pure junk science at its evil worst.

In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning. To borrow a phrase from Al Pacino in the movie "And Justice for All," "Winning became everything."

What is remarkable about Stroud's statement is not that he gained a conviction and death sentence for a man that turned out to be innocent. Or that that man spent three decades caged like an animal. That kind of thing is all too common.

Nor is there anything unusual about the confluence of errors that led to the wrongful conviction—failure to uncover exculpatory evidence, inexperienced defense lawyers, race-based jury selection, junk science, and a judge who passively watched the parade and sat on his thumbs. The same goes for a prosecutorial attitude of God-like omniscience and unwillingness to entertain the possibility that the wrong man is being prosecuted. These things happen all the time in case, after case, after case.

What is unusual—unique really—is Stroud's willingness to accept personal responsibility for the calamity he helped inflict on Glenn Ford and his family—his willingness to embrace this as his personal failure, not just an unfortunate failure of the system. Most prosecutorial attitudes run the gamut from "that's why they put erasers on pencils" to "they must be guilty of something." Everyone else in the system, starting with trial judges, absolves himself of personal responsibility when a heinous failure occurs. We could do with a lot less of that.

In a sense, however, the system is responsible because it places a great deal of power and responsibility in young, ambitious lawyers, like Stroud, who have every incentive to close their eyes to the possibility of innocence, to testilying by police, to bogus experts and to suggestive eyewitness identification procedures.

A prosecutor certainly does not help advance his career by providing to the defense evidence that his star witness made a statement directly contrary to his testimony before the police started leaning on him—as happened in the shameful prosecution and wrongful conviction of Senator Stevens. Faced with a remote possibility of being found out, and the likelihood that nothing bad will happen even if they are, many prosecutors will turn a blind eye or worse. And that's how miscarriages of justice happen.

Some of the suggestions above will help ameliorate the problem, but there are some other reforms that require either legislation, a ruling by the Supreme Court, action by parties not involved in the criminal justice process or a constitutional amendment. These may be more difficult to achieve, but here they are nonetheless:

1. 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. He relied on the separate opinions of Justices O'Connor and Ginsburg in Republican Party of Minnesota v. White, 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."

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. 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. 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.

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.

2. Abrogate absolute prosecutorial immunity. In Imbler v. Pachtman, 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. 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.

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.

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

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, 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.

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