Kozinski Indicts the US Justice System

Federal Judge Alex Kozinski (9th circuit) has written a scathing indictment of the US justice system. Kozinski starts out discussing a number of myths such as that eyewitness testimony or forensic evidence is highly reliable. Business Insider gives a quick rundown of this part of the paper but they clearly didn’t read very far because the incendiary material comes later.

Kozinski, writing in part based on his personal experience as a judge, says that prosecutors are too often running roughshod over justice:

…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.

Discussing the Ted Stevens case he writes

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.

…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.”

Under Imbler v. Pachtman prosecutors have absolute immunity from damages liability from misconduct committed in the course of their work. Kozinski is outraged:

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.

…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.

…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.

Read the whole thing, there is a lot more.


gross misconduct on the part of the state destroys faith in good government, film at 11.

Actually it is worse than that. We have criminals who need to be punished. But we need to believe the system is fair, impartial and comes to the right conclusion.

It doesn't. It is more or less random. Maybe a little bit better than random. Most criminals go to jail because they get caught in the end, not because they get caught. The British figure in the previous year before imprisonment, your average British burglar commits something like 140 offenses. Which means it takes the police a lot of attempts before they get it right.

Unfortunately people in the system gradually figure out that it does not work. Sometimes this upsets them. Mostly I think they think the important thing is to maintain public confidence. Don't tell people in other words.

Just as in the areas of policing and incarceration for nonviolent drug offenses, we've gone too far in empowering prosecutors. If this is a fair criticism for federal prosecutors, then just imagine the status of prosecutorial zeal and overreaching in many of the states.

incarceration for nonviolent drug offenses,
Again, about 60% of all criminal cases are disposed of without incarceration of any kind. About 20% of those incarcerated were so where the top count was a drug offense. It's silly to fancy someone willing to violate felony statutes is a benign character.

Like sending to Alcatraz that nonviolent tax cheat Al Capone.

What a wonderful standard for incarceration (and it's pretty much what we've got now): He isn't benign. Lock him up.

"It’s silly to fancy someone willing to violate felony statutes is a benign character."

Only if you assume that felony statutes == violent dangerous crime. There are lots of federal statutes that are absurd and or trivial.

I've got an acquaintance serving 23 months for involuntarily violating a consent degree from the EPA. For something that no one would have considered a crime 20 years ago. They were guilty of improperly removing asbestos from a construction site. They followed the state guidelines versus Federal guidelines. This was a Federal felony.

That's the prosecutocracy at work. A bit different from willfully violating state statutes which have been on the books for decades and dealing street drugs out of your apartment.

and so dealing street drugs out of your apartment makes you not a "benign character"?

By dealing drugs I'm sure you mean evil crack compared to benign cocaine.

@Art Deco this is one of the most clueelss things you have ever written here, and that's saying something.

You sound like an apologist for prosecutors, i.e, "prosecutors can do no wrong".

Please go read a bit of Ken White (who was a prosecutor before doing defense work) or Scott Greenfield, and then talk with a defense attorney ESPECIALLY ONE WHO HAS BEEN A PROSECUTOR, and then come back and tell us how it works.

Ken White:


Scott Greenfield


And read

Art Deco,

I will assume you are benign, yet you violate felony statutes daily.


I will assume you are benign, yet you violate felony statutes daily.

Which ones?

Is there a law against being an insufferable bore?

"Which ones", says the guy hiding behind an alias. In spite of that, I could easily find some, if I had access to the NSA's collection of phone and ISP records.

Here's a recent Dateline episode on the L.A. County prosecutor taking three trials to get a murder conviction in a case that should have been the epitome of "reasonable doubt:"


The only actual evidence in the whole case is that the victim had blood under a fingernail -- but not the defendant's blood.

The entire documentary shows a lot of not very bright people being proud of talking themselves into believing complicated theories.

I recommend everyone guess what the race / ethnicity of the defendant in the case is before clicking the link. Taking into account who is posting it, of course.

And still they couldn't convict OJ. Dear God, what a mess.

The one jury I served on, a hilarious case about two Iranian immigrant used car dealers who cheated the State of California out of $2 million in sales tax, I was the only juror with cognitive ability to understand the prosecutor's extremely dry, disjointed, and tedious defense:


The unfortunate secret of the criminal justice system is that everybody involved -- prosecutors, defense lawyers, criminals, jurors, maybe judges -- are a lot dumber than you would imagine from watching Law & Order on TV.

But the case was not about the nature of the tax fraud...it was about the degree of the defendant's responsibility. Maybe you misunderstood the basis for the other jurors' acquittal votes.

As crime has dropped, prosecutors now have more time on their hands to pursue marginal cases. For example, back in 1990, no way would the L.A. District attorney have had time to wage the evidence-free decade-long jihad against the defendant in this Dateline episode.

"playing house with Bubba"

Awesome joke, Kozinski!

Do we really need judges making rape jokes?

Yeah, not Kozinski's best line. As much as I admire the guy in some specific respects, it's important to be reminded that he can be a bit of a douche on some subjects.

It's reflective of how our society doesn't take prison rape seriously as an injustice, in part because it's highly skewed toward blacks abusing whites. The Supreme Court's decision in Johnson v. California in 2005 was grotesque:


in part because it’s highly skewed toward blacks abusing whites.

That may be why the black grievance industry or the public interest bar does not care. I'll suggest that the real reason is that legislators and judges do not have many convicts in their extended families.

If you don't read any other part of the article, read Judge Kozinski's conclusion.

The daily business of prosecutors' offices - negotiating pleas with public defenders regarding suspects who are nearly all guilty is troubled, if anything, by excessive leniency. What Kozinski is discussing concerns bad behavior by federal prosecutors who are chasing down vaguely-defined white collar offenses and bad behavior by prosecutors generally who have a vendetta regarding a particular person. The way to correct much of the former problem is to scarify the federal criminal code. Other means (applicable to the small minority of cases which go to trial) would be to require prosecutors to disclose plea offers to juries and to have standard sentencing tables (including a fairly fixed discount for pleading guilty rather than going to trial) and leave the judge to rule on questions of law. Requiring grand juries to hire independent counsel or replacing grand juries with investigative magistrates might be considered. Another thing you might do is replace competitive election for public prosecutor's positions with appointment and retention-in-office referenda (with term limits); this might reduce some of the grandstanding you see.

I've long suspected that prosecutorial work attracts an abnormal share of the people in this world with a pathological inability to admit error. You see these cases which have been absolutely destroyed by the discovery of new evidence subsequently and DAs offices still arguing a conviction should stand.

"What Kozinski is discussing concerns bad behavior by federal prosecutors who are chasing down vaguely-defined white collar offenses and bad behavior by prosecutors generally who have a vendetta regarding a particular person. The way to correct much of the former problem is to scarify the federal criminal code."

I agree to some extent but, in partial defense of federal law and federal prosecutors, one of the reasons federal law is as dense as it is is that people engaged in white collar crime or criminal conspiracies of various sorts tend to be pretty sophisticated when it comes to hiding their tracks and maintaining plausible deniability (and some have lawyers who are smarter than most U.S. attorneys!). So Congress responded by criminalizing various acts that tend to be associated with people trying to hide criminal acts or obstruct justice. This, in fact, goes to your point above about supposedly nonviolent drug offenders as the same logic applies. Someone on paper may be guilty of drug possession or, say, structuring a transaction but may well be guilty of lots of other crimes as well.

So federal criminal law criminalizes things like lying to the FBI (this is probably the most abused statute and I would agree it should be more narrowly tailored), structuring a transaction, destroying records if there is reason to believe they might be relevant to an investigation (this one is thanks to Enron's actions, I think), money laundering, etc. These aren't inherently serious crimes in themselves but they have been made crimes precisely because they are disproportionately associated with people who are engaged in other criminal conduct or are trying to obstruct an inquiry into more serious crimes. But I would agree some of the laws are too sweeping and we should rely on more carefully worded statutes and less prosecutorial discretion to make sure they are applied appropriately.

Good points.

Does the crime prosecuted incorporate (1) flouting the law on immigration and naturalization, (2) Fraud in bankruptcy proceedings, (3) Counterfeiting, (4) sending contraband through the mails, (5) piracy and other crimes on the high seas, (6) mistreatment of prisoners or war, (7) misappropriating captured property, (8) violations of the articles of war governing the armed services, (9) offenses occurring in the territorial waters, in American missions abroad, in the federal capital, or in dependent territories of the United States, (10) arson, vandalism, burglary, or trespass on federal property, (11) theft of federal property, (12) bribery of federal officials, public corruption thereof, or unlawful gratutities to, (13) bribery &c. of state officials, (14) forgery of (federal) government documents and seals, (15) defrauding the federal government, (16) evasion of federal taxes, (17) assaulting or obstructing federal officials performing their lawful duties, (18) malfeasance, misfeasance, or non-feasance by federal officials (19) corruptions of federal proceedings including (a) perjury and like offenses, (b) jury tampering through various means, (c) witness tampering through various means, (d) contempt of court, of commissions of inquiry, or of the legislature (20) escape from a federal jail or prison and absconding while on bail, (21) disorderly conduct or reckless endangerment on or with regard to an inter-state or international common carrier, (22) shipping or transporting contraband across state lines or the international frontier, (23) transporting persons across state lines or the international frontier in defiance of law, (24) transporting stolen goods across state lines or the international frontier, (25) running a scheme to defraud which incorporates conveyance of funds or property from a party in one state to a party in another (or abroad) or which incorporates sending an inducement from one state to a mark in another (or abroad), (26) unlawful espionage wherein the perpetrators are in one state and the victims are in another (or abroad), (27) operating a coercive or extorting racketeering enterprise in multiple states (or here and abroad), (28) vote fraud, (29) malicious deprivation of life liberty, or property by officials at any level, (30) insurrection, (31) misappropriation of state secrets, (32) espionage on behalf of a foreign government, or (33) treason? If not, why is a federal prosecutor bringing a case?

So, is anybody going to get prosecuted for that five-time deportee being out on the streets of San Francisco to murder Kathryn Steinle?

Is Obama going to speak at her funeral?

It amazes you what prosecutors devote their time to. Patrick FitzGerald investigated an aide to Richard Cheney for 3.5 years and eventually won a conviction on a process crime (perjury) because that man's recollection of who had told him what regarding a matter not very important differed from recollections of the journalists he'd spoken to (whose recollections differed from each other). By one account, an assistant U.S. Attorney in the Southern District of New York devoted an entire man-year of her time to investigating two ancillary officials of the Giuliani Administration who had expensed high-living during official travel, then slapped one of them with trumped-up charges of receiving child pornography (eleven images of it).

Is the Federal agent whose gun he found that went off accidentally going to charged as an accessory?

Probably the worst change to US law in the past few decades has been the removal of mens rea from many so crimes.

Shorter Art Deco: prosecutors are good guys when they put poor blackies in jail but damn them to hell when they put white pillars of the community in jail.

Shorter 'reader': cannot be bothered to argue the point, so let's impugn the character of the opposition.

The line between prosecutor misconduct and zealous advocacy is not as clear cut as the judge seems to indicate. Our system of justice is an adversarial system in which each side presents its (highly selective) evidence and an impartial third party, either a judge or jury, decides which side is correct. The problem is that the two sides are rarely equal, as the prosecutor has far greater resources than the typical defense. What most Americans see, however, are defenses with greater resources than the prosecutor, as with the O.J. Simpson case. Most criminal defendants are poor and are represented by the public defender, who has little public support and even fewer resources. By comparison, prosecutors typically have broad public support and far greater resources. Contrary to public perception (all those "technicalities"), the deck is stacked against the defendant. The bigger problem is unequal resources not rogue prosecutors. It's just easier to accept if the problem is the rogue prosecutor rather than failure of the public to provide adequate resources for the public defender.

I'm not sure that "more resources" exactly describes the disparity when prosecutors have at their disposal police forces who can pry into the lives of third parties and conduct invasive investigations in order to build their case. If defence lawyers could direct police resources to their own ends, you can bet that a lot of felony trials would revolve around presenting the evidence collected against alternative suspects whom the police overlooked. Hiring a couple of PIs to track down alternative suspects doesn't really compare to the ability to secure and execute a search warrant.

Nope. Our criminal justice system is not strictly adversarial. As Kosinski makes perfectly clear, prosecutors are supposed to act in the interest of justice, and are not just supposed to go for the conviction every time. Of course they aren't incentivized to act in the interest of justice. That's why Brady violations are so common.

Is it fairer to say that trials are adversarial, but that the general prosecutorial enterprise is not?

Judge Kozinski fears that elected judges may be prejudiced in favor of prosecutors, and suggests that judges should not be elected. He does not go far enough. Let's get rid of elected legislators too. In fact, the Romans had the best system. The president should be chosen in the extended trial by combat known as civil war and then appoint every official below him. It's the eugenic thing to do.

I like the Athenian system better: make all government offices purely random.

On the other hand, judicial candidates cannot more enthusiastically tout their endorsements by police groups, which is ridiculous if not surprising.

The whole f***ing point of the office is impartiality, which no one seems to notice.

Juries shouldn't have to sit through trials in person. The trial should be videotaped and edited down to the actual testimony and arguments. Then the videotape should be shown the jurors. This would cut the number of days of jury service by about 75%.

Better would be to get rid of juries and have three judge panels, one to conduct the trial and two to watch the videotape.

The chambers could also be star-shaped, to further increase the efficiency.

defendents of similar charges could also be tried in batches, all sharing the same verdict, to improve efficiency

To mitigate racial prejudice, Steve's videotapes could be converted into 3-d cartoon renderings where all parties involved are given a racially ambiguous skin color similar to that of Dora the Explorer.

This would be a cool social science experiment.

I don't know if you're being facetious, but that's actually a pretty good idea. At least good enough to try out in a random sample of trials.

As someone who watches the NFL in a similar manner, that sounds smart.

Is the performance of DA's and ADA's still judged by conviction rate in a lot of places?

Time to again raise the perverse prosecution (/persecution) of Aaron Swartz, which is a case study of prosecutors irresponsibly using the powers of their office:

http://boingboing.net/2014/11/18/aaron-swartz-was-no-criminal.html (written by one of Swartz's attorneys; nonetheless a very concise and factually summary of what happened)

He definitely was a criminal

Well, apart from MIT's own policy, that is.

The Aaron Swartz case is less about prosecutors abusing their power than it is about the federal justice system's love affair with lengthy prison sentences as the one-size-fits-all solution. The case is somewhat complex but I read the details a while ago and my take-away is that federal law bans unauthorized access or exceeding authorized access to computers for the purpose obtaining something of value. Swartz pretty clearly acted without authorization -- as evidenced by the escalating cat-and-mouse game between him and MIT that ended in physical trespass on the part of Swartz -- to access MIT's intranet for the purpose of mass-downloading and distributing intellectual property [something of value] freely.

I don't think he should have gone to prison but it was a fairly clear violation of the law and prosecutors can't be faulted for enforcing the law. I would support reforms such as more leniency or non-prison punishments for certain first-time offenders and definite reform in the policy (which I think Obama/Holder already did) that prosecutors should always charge the most serious crime they can once a charging decision is made. But it is not an abuse or a perversion to try to hold someone like Swartz somehow accountable for his actions.

By the way, the article is exactly what you would expect to read from someone who is an advocate rather than an impartial observer. Orin Kerr wrote some of the best analysis of the case and I would encourage anyone to read what he had to write.

The lawyer does hint at various countermeasures MIT and JSTOR took against Swartz but doesn't mention that Swartz was repeatedly kicked off the MIT network, and repeatedly used workarounds to try to regain access and he finally got frustrated with the limitations of the WiFi network that was open to the public and broke into a server room to connect his laptop directly to a router. And the lawyer points out, "Aaron hadn’t broken into a secure network and stolen credit card numbers. He hadn't stolen anyone's healthcare data. He hadn't violated anyone's privacy. He hadn't caused anybody to lose any money." But the wording of the law prohibits obtaining anything of value (e.g. copyrighted journal articles) after obtaining unauthorized access or exceeding authorized access. So listing out a few egregious examples of things that are prohibited by the law and saying Swartz hadn't done anything in that list isn't an argument that he didn't break the law.

Then amend the sentencing table to tailor sentences to the value of the intellectual property appropriated.

Well, let's see. One day per file, say, and he'd be getting an 11000 year sentence.

'All persons are equal before the law', is a fundamental precept of the rule of law.
Immunity from the law (qualified or full) can not exist in a just society.

But government prosecutors, police, judges, and other officials have widespread formal and de facto immunity from various laws that are vigorously enforced against everyone else. The American concept of legal immunity was created out of thin air by government judges to grant themselves special privileges from prosecution; such unjust, self-serving immunity dramatically expanded over time to insulate other government actors from normal legal responsibilities. If government legal bureaucrats are afraid to do their jobs under the same laws as everyone else... they should quit.

Immunity and prosecutor malfeasance are just a portion of the thorough corruption in the American legal system. But it is very unusual for a judge to so openly expose the evils of his guild conspiracy. Alas, things will only get worse for us.

I think law enforcement should be the top priority of Government but, please correct me if I am wrong, law enforcement and the court and punishment system account for only 5% of Government spending.
Our Gov. Priorities are messed up.

Air and water are absolutely crucial to my survival, but I spend very little time each day seeking them out. I think I need to revisit my priorities too!

In the Western states there are lots of government-paid lawyers spending lots of time on water issues.

I might take Kozinski more seriously if he were also willing to do away with absolute immunity for judges. Absent that, This sounds like just more grandstanding by someone permanently frustrated that he didn't make it onto the Supreme Court.

Judges are different somehow.

Abolish immunity for all public officials! They are just citizens temporarily serving in office,

"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."

I have no problem with giving prosecutors qualified immunity, but I don't think it would make any difference, let alone the claims Kozinski makes. Does qualified immunity result in many convictions of law enforcement officers? Is there reason to think the public will convict overzealous prosecutors?

Most of what prosecutors do for which hey have absolute immunity occurs fully within public view and under judicial oversight. If prosecutors bring and win cases with "no credible evidence," where was the judge during the trial, if not during pre-trial?

Its worth revisiting the system in place during the Roman Republic. Officials had qualified immunity, in that they could not be prosecuted while in office, but were fair game once they left, including for what they did in office. Since prosecutions were fairly nakedly used as tools to get political advantage -there was no prosecution service, and prosecutions were lawsuits brought by private individuals and anyone could bring one- there was alot of manuevering whenever a term of office was up for a major politician for him to either secure a new office or somehow avoid the inevitable prosecution.

This was what was behind Caesar's march on Rome, his term as proconsul was coming up and his enemies manuevered him into a situation where he could not jump to another office, and was vulnerable to prosecution.

They also had an official whose main purpose was to remove Senators, who otherwise had lifetime terms, who were not up to standard.

Seriously, the Roman Republic was a total mess, but the practice of the Spanish empire actually would be worth emulating. They had teams of auditors come in and examine the actions of top officials when they left office. The Spanish empire gets a bad rep from English language historians, but it lasted for centuries and was quite stable, so they did alot of things right.

The Spanish tended to worry about their souls. The Brits, in contrast, tended to be pirates.

Qualified immunity is a civil doctrine, not a criminal one. Within the margin of error, no state employee ever goes to prison for mistreating a citizen. On rare occasion, however, said citizen can win a civil verdict against a police officer, which is paid by the government. Invariably there are no employment consequences. However, even this minor "punishment" is a bridge too far for misbehaving prosecutors and judges, who can't have their majesty pierced by even a verdict that they don't have to pay.

I suppose anything is worth considering, but some, perhaps most, of the prosecutors today are employed indefinitely and protected by their party. Around here, the elected prosecutor will invariably get a judicial appointment when he/she is ready.

Oops, reply fail.

Where I'm from, I've seen examples of staff prosecutors who jumped to judicial positions, never an elected district attorney. I'm not sure any of the men who have been attorney-general of New York in recent decades put in any time in judicial positions thereafter.

A partial solution might be as follows: have superior court jurisdictions (and those of auxilliary officials such as the public prosecutor, public defender, and coroner) of a minimum population (say 170,000), with multi-county jurisdictions when counties are below the threshold; appointment with retention-referenda in lieu of competitive elections; and term limits with no district attorney in office for more than nine years in any bloc of 12. You could have employment rules wherein staff prosecutors do not work more than nine years in any bloc of 12 in a given office, seeking employment in other offices or going into private practice when their nine years are up.

Man, not even a single reference to popehat.com?

Awesome article, thanks for posting. Everbody please do read it.

Police should have no immunity, and their union dues can pay off their lawsuit pay-outs for when they violate people's civil rights.

Do this, and suddenly the police will be ratting out the bad apples so fast, your head will spin.

Surprised AlexT did not mention as a proscriptive remedy the carrot of being able to sue prosecutors for malicious prosecution, as you can sue the police (for grossly negligent arrest). Also, there are in theory laws on the book to reign in overzealous prosecutors; the state bar can in theory and sometimes in practice (happened in North Carolina, was it with the Duke rape cases? or another one) disbar the overzealous prosecutor. But sadly it's rare.

}}} only qualified immunity while giving prosecutors absolute immunity.

I think they're well on their way to giving cops defacto absolute immunity. No, not claiming that's behind the cases in Ferguson, which was likely a valid kill, there are too many cases where cops walked while using deadly force in a scenario which didn't seem to call for it.

The standard seems to be, "prove that they knew they didn't need lethal force" rather than "demonstrate why they believed lethal force was called for in the first place."

I concur, most of the death-by-cop scenarios involve someone doing something nominally stupid -- fighting or fleeing from a cop -- but, in most cases, dying for that stupidity does seem a bit over the top as a response on the part of the cop.

Not suggesting the cops be prosecuted, but that the standards be changed and AFTER that, cops should be prosecuted.

We need to go back to "Officer Friendly" models of cops, not "Waffen SS" model cops.

As harsh as this is, Kozinski begins pulling his punches by the end of his first paragraph, "It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape." In the McMartin daycare case and many similar prosecutions, people were convicted of impossibilities and these convictions were upheld on appeal.

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