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)

On 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 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; yesterday’s post discusses the jury system, and ways to improve it; a post earlier today discusses prosecutorial misconduct; this post discusses possible ways of preventing prosecutorial misconduct and I’ll post other parts of the article in the days to come. 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:

While most prosecutors are fair and honest, a legal environment that tolerates sharp prosecutorial practices gives important and undeserved career advantages to prosecutors who are willing to step over the line, tempting others to do the same. Having strict rules that prosecutors must follow will thus not merely avoid the risk of letting a guilty man free to commit other crimes while an innocent one languishes his life away, it will also preserve the integrity of the prosecutorial process by shielding principled prosecutors from unfair competition from their less principled colleagues.

Here are some potential reforms that would help achieve these goals:

1. Require open file discovery. If the prosecution has evidence bearing on the crime with which a defendant is being charged, it must promptly turn it over to the defense. North Carolina adopted such a rule by statute after Alan Gell was convicted of murder and sentenced to death, even though the prosecution had statements of 17 witnesses who reported to have seen the victim alive after Gell was incarcerated — evidence that the prosecution failed to disclose until long after trial.

Three years after its passage, the law forced disclosure of evidence that eventually exonerated three Duke lacrosse players who were falsely accused of rape — and led to the defeat, disbarment and criminal contempt conviction of Durham District Attorney Mike Nifong. Prosecutors were none too happy with the law and tried hard to roll it back in 2007 and again in 2012, but the result was an even stronger law that applies not only to prosecutors but to police and forensic experts, as well it should.

A far weaker law was proposed by several U.S. Senators following the disgraceful prosecutorial conduct during the Stevens case. The law would require prosecutors to disclose all information “that may reasonably appear to be favorable to the defendant.” Despite support from both Democrats and Republicans, the bill has made no progress toward passage because of steadfast opposition from the U.S. Department of Justice.

In his 2012 Preface to these pages, Attorney General Eric Holder voiced a strong commitment to ensuring compliance with Brady and related discovery obligations, but all of the measures he mentions leave prosecutors in charge of deciding what evidence will be material to the defense — something they cannot possibly do, because they do not know all the potential avenues a defense lawyer may pursue, and because it’s not in their hearts to look for ways to help the other side. If the Department of Justice wants to show its commitment to justice, it should drop its opposition to the Fairness in Disclosure of Evidence Act and help get it passed into law.

2. Adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations. For reasons already explained, enforcing the government’s obligations is critical to achieving a level playing field in criminal cases. But policing this conduct is exceedingly difficult for the simple reason that “Brady violations … almost always defy detection. The cops know it. The prosecutors know it. The defense and the defendant have no idea whether Brady material exists.”

Open file discovery would go a long way toward ameliorating the problem, but not far enough. The prosecutor’s file will generally contain what the police and investigators consider to be inculpatory evidence; a great deal might be left out that is unhelpful to the prosecution. Yet the government’s disclosure obligation extends to information that is in the hands of investigators and places an affirmative obligation on prosecutors to become aware of exculpatory evidence that is held by others acting on the government’s behalf. Ensuring that the government complies with this obligation can’t be left up to individual prosecutors. Rather, prosecutorial offices must establish firm policies to ensure compliance.

This does happen from time to time. For example, in 1990, Chief Assistant United States Attorney Mary Jo White of the Eastern District of New York, Chief of the Criminal Division Bill Muller and Chief of the Narcotics Unit David Shapiro, among others, issued a detailed, thoughtful 27-page memorandum analyzing the government’s disclosure obligation at the time and recommending procedures to be followed when dealing with informants and other government witnesses. One of those recommendations was that the office maintain, and provide to the defense, “information about every case in which an informant has testified as an informant or a defendant, including the district or state in which the proceedings took place, the docket numbers and transcripts, where possible … and statements by a judge referring to a witness’s truthfulness and any allegations of double dealing or other misconduct.”

The memo contained other similarly enlightened recommendations, disclosing a firm commitment to complying with the spirit, not merely the letter, of Brady and its progeny. Some years later, in 1999, a similar set of procedures was adopted by the United States Attorney’s Office in the Northern District of California in a manual drafted by one of the authors of the EDNY memo who had moved there and served as head of the Criminal Division. But, according to a lawyer who left the office in 2002, the manual was disregarded by the new U.S. Attorney.

Compliance with the government’s disclosure obligations cannot be left to the political vagaries of 93 U.S. Attorneys’ offices and the countless District Attorneys’ offices across the country. Instead, the U.S. Justice Department and the justice department of every state must ensure compliance by setting standards and meaningfully disciplining prosecutors who willfully fail to comply. If they will not do it on their own, Congress and the state legislatures must prod them into it by adopting such standards by legislation.

3. Adopt standardized, rigorous procedures for eyewitness identification. North Carolina leads the way, once again, with the Eyewitness Identification Reform Act, which does just that. It provides in relevant part that lineups “shall be conducted by an independent administrator”; “[i]ndividuals or photos shall be presented to witnesses sequentially, with each individual or photo presented to the witness separately”; the eyewitness must be instructed that he “should not feel compelled to make an identification”; “at least five fillers shall be included in a [photo or live] lineup, in addition to the suspect”; and live identification procedures must be recorded on video.

This law, too, came as a result of a huge miscarriage of justice when Jennifer Thompson-Cannino mistakenly identified Ronald Cotton as her rapist. He spent 11 years in prison before he was exonerated by DNA evidence. The cases involving mistaken eyewitness identification are legion.

4. Video record all suspect interrogations. The surprising frequency of false confessions should make us deeply skeptical of any interrogation we cannot view from beginning to end. Suspects are frequently isolated and pressured in obvious and subtle ways, and when the process ends we often have very different accounts of what happened inside the interrogation room. In those circumstances, whom are we to believe? Most of the time, the judge and juries believe the police.

There may have been a time when we had to rely on such second-hand reports, but technology has now made this unnecessary: Video recording equipment is dirt cheap, and storage space for the resulting files is endless. No court should ever admit a confession unless the prosecution presents a video of the entire interrogation process from beginning to end. [Footnote: This practice has been adopted in England, Ireland and Australia, where the general rule is that all interrogations — and not just confessions — must be recorded on audio or video. However, Australia is the only country that explicitly provides that the consequence for failing to record is inadmissibility of the contents of the interrogation. In addition, a number of states, including Alaska, Arkansas, Minnesota, Montana and New Jersey, require all interrogations to be recorded and consider compliance with that requirement a factor in determining whether a statement made in an interrogation is admissible.]

It appears that change is underway. Just last year, the Justice Department reversed its century-old prohibition against recording interrogations and adopted a policy “establish[ing] a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody.”

[Footnote moved: In fact, why don’t police officers wear body cameras at all times? It would protect the suspect and the police officer. See Steve Tuttle, Cambridge University Study Shows On-Officer Video Reduces Use-of-Force Incidents by 59 percent, TASER Int’l (Apr. 8, 2013) (the use of “officer worn cameras reduced the rate of use-of-force incidents by 59 percent” and “utilization of cameras led to an 87.5 percent reduction in complaints” by citizens against police officers); see also U.S. Dep’t of Justice, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned (2014).]

5. Impose strict limits on the use of jailhouse informants. In response to a devastating report on jailhouse informants issued by the Los Angeles County grand jury in 1990, the county adopted procedures that required the approval of a committee before informants could be used. The use of informants consequently plummeted.

Even still, the practice of using jailhouse informants as a means of detecting and perhaps manufacturing incriminatory evidence has continued in California. Serial informants are exceedingly dangerous because they have strong incentives to lie or embellish, they have learned to be persuasive to juries and there is no way to verify whether what they say is true. A man jailed on suspicion of a crime should not be subjected to the risk that someone with whom he is forced to share space will try for a get-out-of-jail-free card by manufacturing a confession.

6. Adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process. There is an effort underway to do this at the federal level. A 30-member commission headed by the Justice Department and comprised of forensic scientists, researchers, prosecutors, defense attorneys and judges was founded two years ago with the goal of “improv[ing] the overall reliability of forensic evidence after instances of shoddy scientific analysis by federal, state and local police labs helped convict suspects.”

However, the Justice Department recently made the unilateral decision that “the subject of pre-trial forensic discovery — i.e., the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be disclosed before they testify in court — is beyond the ‘scope’ of the Commission’s business and therefore cannot properly be the subject of Commission reports or discussions in any respect.” This prompted the resignation of commission member Judge Rakoff, who criticized the decision as “a major mistake that is likely to significantly erode the effectiveness of the Commission” and a reflection of “a determination by the Department of Justice to place strategic advantage over a search for the truth.” He elaborated: “A primary way in which forensic science interacts with the courtroom is through discovery, for if an adversary does not know in advance sufficient information about the forensic expert and the methodological and evidentiary bases for that expert’s opinions, the testimony of the expert is nothing more than trial by ambush.”

Judge Rakoff’s noisy resignation had its desired effect: Two days later, the Justice Department reversed its decision to bar the commission from considering issues related to pre-trial forensic discovery. Judge Rakoff subsequently returned to the commission, which is now in the process of preparing recommendations for the Attorney General. But why should the Justice Department have to be buffaloed into doing the right thing?

7. Keep adding conviction integrity units. We know that there are innocent people languishing in prison, but figuring out who they are is very difficult — more so if the prosecution, which has control of whatever evidence there is, is fighting you tooth and nail. That turns out to be a common response from prosecutors confronted with evidence that they may have obtained a wrongful conviction.

A separate unit within the prosecutor’s office, with access to all the available evidence, and with no track record to defend, may be the best chance we have of identifying wrongfully convicted prisoners. More than a dozen such offices have been established across the country and more are being added. This trend needs to continue and escalate. Better yet, there might be a federal agency to investigate the problem of questionable state convictions. This would reduce the bias that one state agency might have in favor of another.

In addition, state and federal law ought to be revised to give convicted defendants full access to DNA and other evidence in the possession of the prosecution. We have repeatedly witnessed the appalling spectacle of innocent defendants spending many years fighting to obtain the evidence that would eventually exonerate them. Michael Morton spent six additional years in prison because District Attorney John Bradley worked very hard to block Morton’s requests for DNA testing. And Anthony Ray Hinton spent more than fifteen years in prison fighting for the right to test evidence that eventually set him free. Bruce Godschalk lost seven years ; Frank Lee Smith died in prison waiting for DNA testing that eventually proved his innocence.

There is no justification for withholding evidence that might set an innocent man free from unjust imprisonment. Whatever impediments have been interposed to prevent access to such evidence to convicted defendants and those working on their behalf ought to be summarily removed by legislation giving them full and swift access to all evidence in possession of the government. Most states now have laws allowing post-conviction access to DNA testing, but many are restrictive in practice — for example, denying requests from inmates who originally confessed to the crime or imposing a deadline of one year after conviction to file a request. Nebraska’s statute, however, serves as a good example to emulate. It provides:

[A] person in custody pursuant to the judgment of a court may, at any time after conviction, file a motion, with or without supporting affidavits, in the court that entered the judgement requesting forensic DNA testing of any biological material that:

(a) Is related to the investigation or prosecution that resulted in such judgment;

(b) Is in the actual or constructive possession or control of the state or is in the possession or control of others under circumstances likely to safeguard the integrity of the biological material’s original physical composition; and

(c) Was not previously subjected to DNA testing or can be subjected to retesting with more current DNA techniques that provide a reasonable likelihood of more accurate and probative results.

The statute further provides that DNA tests must be performed in a nationally accredited laboratory, that the county attorney must submit an inventory to the defense and to the court of all evidence secured by the state in connection with the case.

8. Establish independent Prosecutorial Integrity Units. In my experience, the U.S. Justice Department’s Office of Professional Responsibility (OPR) seems to view its mission as cleaning up the reputation of prosecutors who have gotten themselves into trouble. In United States v. Kojayan, we found that Assistant United States Attorney Jeffrey Sinek had misled the district court and the jury. The district judge, who had trusted the AUSA, was so taken aback with the revelation that he barred further re-prosecution of the defendants as a sanction for the government’s misconduct.

OPR investigated and gave the AUSA a clean bill of health. And no Justice Department lawyer has yet been sanctioned for the Stevens prosecution despite the clear evidence of willful misconduct. Prosecutors need to know that someone is watching over their shoulders — someone who doesn’t share their values and eat lunch in the same cafeteria. Move OPR to the Department of Agriculture, and institute similar independent offices in the 50 states.