DOJ Pretty Sure The Problem With The Criminal Justice System Is Everyone Else

from the so-many-feelz dept

Earlier this year, Judge Alex Kozinski went much further than his one-off comments in judicial opinions to take the prosecutors to task for… well, pretty much everything. The "epidemic of Brady [exonerating evidence] violations" he noted in 2013's USA v. Olsen decision was just the leadoff. Kozinski teed off on faulty forensic evidence (comparing arson "specialists" to "witch doctors"), the way the "first impression" almost always favors prosecutors (who get to present their case first in criminal trials), and the general unreliability of eyewitness testimony, which is often portrayed as infallible when it's the goverment presenting the witnesses.

Several months later, the Department of Justice -- home to a great many prosecutors -- has finally responded. And its feelings are terribly hurt.

Federal prosecutors, who Judge Kozinski actually described in glowing terms, took offense at the fact they are not considered infallible by the Judge. And in the last few weeks, they have made their hurt feelings known.

Andrew Goldsmith, National Criminal Discovery Coordinator at the Department of Justice, and John Walsh, United States Attorney for the District of Colorado, wrote a letter to the Georgetown Law Journal expressing their displeasure with Kozinski’s contribution to the journal. Rather than take the opportunity to join in Kozinki’s call for a more careful justice system, Goldsmith and Walsh demonstrated a stunning lack of awareness about what they do and how often it goes wrong these days.
According to this defensive group of prosecutors, Kozinski's "provocative preface" was certainly food for thought for whoever Kozinski was referring to, but not them, because federal prosecutors are upstanding men and women whom the judge has insulted deeply.
While the preface raises several points that merit discussion, such as the reliability of certain forms of evidence, Judge Kozinski goes too far in casting aspersions on the men and women responsible for the administration of justice in this country. His preface seemed to question not only the integrity of our agents and prosecutors, but also the government’s capacity to self-correct in the (very small) minority of cases when someone falls short.
The problem is, Kozinski is one of a very few judges to question the integrity of prosecutors. And for all the umbrage being hauled in by the semi-truckful, Kozinski was rather restrained when discussing federal prosecutors. Still, the DOJ cannot sit idly by while someone suggests a few prosecutors don't play by the rules and that the rules themselves are faulty. So, it does what the DOJ always does in these situations: defends the honor of the (not even directly) accused. When the DOJ takes down a local police force for misconduct or abuse, it always makes sure to rub the bellies of the police force at large before getting to the bad stuff.

In this case, the bad stuff preceded the defensive statements from the DOJ, which now have to stand alone.
We have both worked with many prosecutors during our combined thirty-three years at the Justice Department. We have served as line prosecutors and supervisors, and now hold positions with national responsibility. Throughout our careers, what has always struck us is the professionalism, integrity, and decency of our colleagues. They care deeply about the work that they do, not because they are trying to rack up convictions or long sentences, but because they seek to ensure that justice is done in each and every case they handle. This extends to the seriousness with which they take their discovery obligations. Our prosecutors comply with these obligations—because they are required to do so and because it is the right thing to do. It is a principle embedded not only in the Department’s internal rules, but in the Department’s culture.
And being so good is oh so exhausting.
At the Department of Justice, we recognize our responsibility to work tirelessly to improve the work that we do, and to enhance the fair administration of justice.
In support of its assertions, the DOJ claims only a small handful of prosecutions have resulted in the courts calling it out for abusive actions. But that does nothing to diminish Kozinski's points. All it does is distract from them, as Fault Lines blogger Josh Kendrick points out:
Indeed, there are far more cases than the few Kozinski discusses that demonstrate an issue with the prosecution disclosing favorable evidence. And when the evidence comes to light, the DOJ rarely admits to the problem. Instead they argue the evidence wasn’t important, wasn’t available, wasn’t in their specific office, didn’t affect the outcome of the case, or could have been found by the defendant on his own. And the courts are usually cool with any of those arguments. Because once somebody is convicted, the courts hate to unconvict them.

[...]

They don’t actually deny the problem, they create a decoy argument. Sure, there are probably a lot of prosecutors that work very hard to make sure they meet their obligations. In fact, that is exactly what Kozinski meant when he called them “fair-minded, forthright and highly conscientious.” But that doesn’t mean there aren’t some that aren’t. And the enormous amount of power wielded by prosecutors, and especially federal prosecutors, means there is no minimum number of bad apples we should accept.
Furthermore, even if the DOJ is staffed with the best prosecutors in the nation, they're still there to perform a certain task. The DOJ calls it "justice," but in reality it's to obtain convictions. There's a lot of area between "justice" and "jail sentences," but prosecutors rush across this open ground to obtain the latter. The DOJ doesn't second-guess its actions and if others do, it second-guesses their conclusions.

Because of its focus, even the best prosecutors who've never committed a Brady violation in their careers are still part of the problem. And that problem will never be addressed if prosecutors immediately elevate their hackles whenever someone suggests their methodology, tactics or submitted evidence might be questionable. Great people can be great prosecutors and still be part of the problem Kozinski wrote about. The culture (for lack of a better word) doesn't exactly encourage retrospection or restraint, as Above the Law's Matt Kaiser points out:
To be clear, I do think the vast majority of AUSAs are fundamentally good people who are trying to do what they do with integrity. I also think that the vast majority of AUSAs are bright aggressive lawyers who want to win.

Federal prosecutors aren’t trained to read rules or facts to give an edge to the other side. They don’t high-five each other for giving someone suspected of a crime the benefit of the doubt. They don’t send at-a-boy emails to their colleagues for the exercise of discretion in favor of leniency.

It isn’t a question of whether federal prosecutors are good people; it’s whether these people, trusted with enormous power, are exercising that power in the way they ought.
This is the situation everywhere, not just at the DOJ. Federal prosecutors are bitterly licking their Kozinski-inflicted paper cuts and failing to see the larger point of his essay. There are problems in the justice system -- some inherent, some more deliberate. But no one on this end of the equation wants to discuss them. It's left to judges to correct prosecutors' misconduct and it just isn't enough. Too many defendants are talked into plea agreements pre-trial or simply dissuaded from challenging their prosecution by the amount of time and money that must be expended in an effort that's far from guaranteed.

Misconduct goes ignored by some judges and, in a majority of cases, by the offices these prosecutors work for. Convictions are the goal and prosecutors aren't praised for showing restraint, leniency or anything else but prosecutorial efficiency. Corners will be cut, shaky evidence will be backed by questionable experts, and even the most dubious prosecutions seem to have better than a 50% chance of resulting in a conviction. Why would they change? Their side has a lion's share of the "wins."


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  • identicon
    Anonymous Coward, 4 Dec 2015 @ 8:43am

    DOJ

    Is CORRUPT!

    It needs to be administered a huge laxative!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Dec 2015 @ 8:55am

    "Misconduct goes ignored by some judges and, in a majority of cases, by the offices these prosecutors work for. Convictions are the goal and prosecutors aren't praised for showing restraint, leniency or anything else but prosecutorial efficiency. Corners will be cut, shaky evidence will be backed by questionable experts, and even the most dubious prosecutions seem to have better than a 50% chance of resulting in a conviction. Why would they change?"

    While I agree we do have issues I think this is overstating the issue.

    "Their side has a lion's share of the "wins." "

    Which isn't necessarily a bad thing. It could mean they are choosing their battles carefully and efficiently as they should be.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Dec 2015 @ 9:01am

      Re:

      Which isn't necessarily a bad thing. It could mean they are choosing their battles carefully and efficiently as they should be.

      And you don't see the bad in this? The issue is NOT OVERSTATED by ANY MARGIN. The moment a person goes to jail while they are innocent is the moment someone fucked up and that is terrible. People lose access to their loved one, find new and unexpected financial burdens due their NEW aggressive DA's picking and choosing easy and poor targets to fluff their numbers for contrived self worth and resume building.

      I really cannot state how terrible your view of the situation appears from someone who has seen first hand of how uncaring the system is on delivering justice versus how much it ONLY cares about getting a conviction regardless of innocence OR guilt!

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Dec 2015 @ 9:09am

        Re: Re:

        I am not saying that an innocent person should ever go to jail. I am saying that the high success rate could be because prosecutors choose defendants that are most certainly guilty instead of choosing ones that may not be. Which should be the case as we shouldn't have prosecutors taking questionable cases and wasting taxpayer money on them. The high success rate of prosecutors alone doesn't indicate that there is something terribly wrong.

        I do agree that our system does have a problem when it comes to trumped up charges being used to scare potentially innocent people into prematurely plea bargaining instead of going through an uncertain and lengthy trial.

        reply to this | link to this | view in chronology ]

        • icon
          sigalrm (profile), 4 Dec 2015 @ 9:18am

          Re: Re: Re:

          I am saying that the high success rate could be because prosecutors choose defendants that are most certainly guilty instead of choosing ones that may not be.


          Or, it could be that many of the people being prosecuted can't afford the legal fees (attourneys, expert witnesses, etc) associated with taking a court case all the way through the appeals process. Particularly when the assets they might be able to leverage to pay those fees have been frozen.

          It would be very interesting to see figures on what it would cost a "typical" defendant to litigate a case through, say, a second appeal.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Dec 2015 @ 11:03am

          Re: Re: Re:

          I am saying that the high success rate could be because prosecutors choose defendants that are most certainly guilty instead of choosing ones that may not be.

          I wished you were right, but this is not the case as one of the other folks stated they pick the easiest people to hit on that cannot afford a defense and then put the screws to them.

          You can find far far FAR too many cases where this is just exactly what is going on. I have also seen more than enough comments on prosecution completely voiding a case even WHEN they are sure the person is guilty because they know the defendant is well prepared and has more than enough money to buy reasonable doubt for acquittal.

          Sadly Justice is only available for those whom can afford it or in some rare cases a protected class that can get recognition for their plight. There are additionally more than enough stories in the news where a person was on track to get screwed by time by the courts until their case made public awareness... then all of a sudden the cases is just dropped.

          The DA is most certainly playing a game, and certainly not an honest one either. It is 100% politics and anyone even thinking of being honest would only be squeezed out of the system because it does not reward any other behavior than high as possible conviction rate.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 4 Dec 2015 @ 11:07am

            Re: Re: Re: Re:

            I agree, those with money often are less likely to get prosecuted because the prosecutor just wants a quick win and they are also less likely to get convicted and that is an issue.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Dec 2015 @ 9:15am

      Re:

      "Which isn't necessarily a bad thing. It could mean they are choosing their battles carefully and efficiently as they should be."

      The problem is that the evidence is that they aren't choosing their battles carefully and efficiently. Instead, they're stacking the deck and engaging in strong arm tactics to secure "wins". The more wins the better.

      reply to this | link to this | view in chronology ]

    • icon
      Brian (profile), 4 Dec 2015 @ 11:10am

      Re:

      "It could mean they are choosing their battles carefully and efficiently as they should be."

      When their weapons for battle are overly broad, punitive, and numerous (double-jeopardy) laws, then they can efficiently "administer justice" by the letter of the law (but rarely the spirit).

      reply to this | link to this | view in chronology ]

  • icon
    Sneeje (profile), 4 Dec 2015 @ 9:32am

    Let's be clear about "ought"

    "It isn’t a question of whether federal prosecutors are good people; it’s whether these people, trusted with enormous power, are exercising that power in the way they ought."

    I wish he had worded it differently. I think what he means is exercising that power in a manner that places emphasis on both the rights of the accused and the public good. And does not place emphasis on the good of the DoJ or him or herself.

    reply to this | link to this | view in chronology ]

  • icon
    lucidrenegade (profile), 4 Dec 2015 @ 9:37am

    When it comes to light that a prosecutor has withheld evidence from the defendant, they should automatically be permanently disbarred and brought up on charges. There is no excuse.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Dec 2015 @ 11:51am

    DOJ Pretty Sure The Problem With The DOJ Is Everyone Else

    Fixed that for ya.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Dec 2015 @ 12:26pm

    It is OK to execute an innocent person on occasion, as long as we keep it under 5%. Up yours, keep the fucking house, I am out of here.

    reply to this | link to this | view in chronology ]

  • identicon
    tsunku, 4 Dec 2015 @ 1:46pm

    it's not corruption, it's conviction quotas which should be outlawed all across the land. all prosecutors no matter where they are, are charged with maintaining a certain number of convictions per quarter, if they fail to gather enough convictions they can be fired/replaced. this is retarded and leads to many false convictions of innocent ppl who are forced by this idiocy to prove their innocence in court when they shouldn't have to. texas had a similar problem with police officers and quotas, they outlawed them finally and suddenly no more ppl getting speeding tickets when they weren't speeding. a whole lot less of arresting ppl for just being ppl in order to make up your monthly quota of arrests. yet they left the prosecution's conviction quotas alone, they shouldn't have, there is no justice in convicting known innocent ppl just because you can. the supreme court made a huge mistake by declaring innocence is no bar towards conviction, it should be the biggest bar!

    reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 4 Dec 2015 @ 1:53pm

    The core of the rot

    not only the integrity of our agents and prosecutors, but also the government’s capacity to self-correct in the (very small) minority of cases when someone falls short.


    That's they can say this with a straight face, or even more frightening that they might even actually think this is even remotely true, is the clearest example of the deep and pervasive rot that has infested the DoJ.

    reply to this | link to this | view in chronology ]

  • identicon
    127.0.0.1, 5 Dec 2015 @ 1:33am

    In other news:

    Finally pigs take umbrage (and to the skies) at the fact that Grand Juries can be persuaded by Prosecutors to indict ham sandwiches.

    reply to this | link to this | view in chronology ]


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