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

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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