A federal judge looks at prosecutors

Wall Street Journal Law Blog - In the latest issue of Georgetown Law Journal, Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals turns a critical gaze toward America’s criminal justice system. It’s a long piece — part diagnosis of ailments and part treatment — with a broad sweep. But one of its major themes is prosecutorial advantage, both in federal and state courtrooms.

“They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape,” writes Judge Kozinski.

Among his specific concerns is what he sees is a reluctance on the part of judges to blow the whistle on prosecutorial abuse:

Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors. Indeed, judges seem reluctant to even suspect prosecutors of improper behavior, as if they were somehow beyond suspicion….Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights.

If judges have reason to believe that witnesses, especially police officers or government informants, testify falsely, they must refer the matter for prosecution. If they become aware of widespread misconduct in the investigation and prosecution of criminal cases, a referral to the U.S. Department of Justice for a civil rights violation might well be appropriate.

But he says even if judges made the referrals, Judge Kozinski doubts the Justice Department has the appetite to pursue them.

He thinks Congress should pass a bill proposed by Republican Sen. Lisa Murkowski of Alaska in 2012 — called the Fairness in Disclosure of Evidence Act — that would require federal prosecutors to disclose any evidence “that may reasonably appear to be favorable to the defendant in a criminal prosecution.”

That’s a wider net than the constitutional obligation to share with criminal defendants exculpatory evidence material to guilt or punishment.