Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit (official photo)

Last 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. Thursday’s post discusses the jury system, and ways to improve it. Friday’s posts discussed prosecutorial misconduct and possible ways of preventing prosecutorial misconduct. Today’s post focused on what judges, especially trial judges, can do. 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:

Judges, especially trial judges, can do a great deal to ensure that prosecutors comply with their constitutional obligations, that only reliable evidence is presented to juries, that juries are properly instructed and that the trial is generally fair. There has been an avalanche of exonerations in recent years, many of them of people who spent half a lifetime or more behind bars, and in every one of those cases there was some sort of proceeding — usually a trial, sometimes a plea — where a judge let an innocent man be convicted and sent him to prison or death row.

When such cases are reported, the trial judge is always given a pass, as if he were merely a bystander who watched helplessly while an innocent man had his life ripped away from him. I don’t buy it. Any judge that inexperienced or incompetent has no business presiding over anything more significant than small claims court. In criminal cases, judges have an affirmative duty to ensure fairness and justice, because they are the only ones who can force prosecutors and their investigators and experts to comply with due process.

Other than being vigilant, compassionate and even-handed, there are specific measures trial judges can take to ensure fairness in criminal proceedings and avoid the conviction of innocents.

1. Enter Brady compliance orders in every criminal case. The Brady rule is in many ways the ultimate guarantor of fairness in our criminal justice system. This is because police have unparalleled access to the evidence in criminal cases — both inculpatory and exculpatory. Once a crime is reported and police are on the scene, they can secure the area and prevent anyone from touching anything until they are done. They have control of what evidence is sent out for forensic testing; they talk to witnesses and get their impression before anyone else does.

Police and prosecutors, working together, can lean on witnesses by threatening prosecution or offering leniency. If there is evidence helpful to the defense, it will generally wind up in the possession of the police; if witnesses have made helpful statements in their initial contact with investigators (as happened in the Stevens case) that information will be in the sole possession of the prosecution. A defense investigator or lawyer plowing over the same territory after the police have done their job will generally find the scene denuded of clues and witnesses who are skittish and laconic.

Brady and its progeny therefore impose important obligations on prosecutors, obligations that are too frequently ignored. In case after case where an innocent person is exonerated after many years in prison, it turns out that the prosecution failed to disclose or actively concealed exculpatory evidence. But Brady is not self-enforcing; failure to comply with Brady does not expose the prosecutor to any personal risk.

When Judge Sullivan discovered that the prosecutors in the Stevens case had obtained their conviction after failing to disclose exculpatory evidence, he appointed a special counsel, DC attorney Henry Schuelke III, to independently investigate the prosecutors’ conduct. Schuelke determined that the lawyers had committed willful Brady violations but that the court lacked the power to sanction the wrongdoers because they had not violated any court-imposed obligations.

The solution to this problem is for judges to routinely enter Brady compliance orders, and many judges do so already. Such orders vary somewhat from judge to judge, but typically require the government to turn over, when received, documents and objects, reports of examinations and tests, expert witness opinions and all relevant material required by Brady and Giglio. Entering such an order holds prosecutors personally responsible to the court and will doubtless result in far greater compliance.

2. Engage in a Brady colloquy. This procedure was proposed by Professor Jason Kreag in an article published last year in the Stanford Law Review Online, and it strikes me as a good idea. The details are outlined in Professor Kreag’s article but the general idea is that, during pretrial hearings and before a defendant enters a guilty plea, the trial judge would have a conversation with the prosecutor on the record, asking him such questions as, “Have you reviewed your file … to determine if [it] include[s] information that is favorable to the defense?” and “Have you identified information that is favorable to the defense, but nonetheless elected not to disclose [it] because you believe that the defense is already aware of the information or the information is not material?”

There is nothing like having to face a judge on the record to impress upon lawyers the need to scrupulously comply with their professional obligations. But the questions must be sufficiently specific and detailed to avoid the mantra, “We’re aware of our Brady obligations and we’ve met them.”

3. Adopt local rules that require the government to comply with its discovery obligations without the need for motions by the defense. The prosecution need not present Brady evidence unless the defense asks for it, usually by motion. This seems sort of silly because the defense obviously wants whatever exculpatory evidence the prosecution might have. Surprisingly, few courts have rules that obviate the need for criminal discovery motions. I’m aware of only a dozen or so federal courts that have local rules either stating that the defense doesn’t need to make a formal discovery motion, or requiring the government to disclose Brady/Giglio material within a specific time frame, without mentioning a defense motion.

An example of such a rule is Eastern District of Washington Local Criminal Rule 16(a), which was adopted just last year. The rule requires the government to make available within 14 days of arraignment: (1) all of the defendant’s oral and written statements, the defendant’s prior record, documents and objects and expert witness opinions that are in the government’s “possession, custody or control or which may become known … through due diligence”; (2) information from an “electronic eavesdrop, wiretap or any other interception,” as well as “the authorization for and information gathered from” a tracking device or video/audio recording used during investigations; (3) “search warrants and supporting affidavits”; (4) information regarding whether physical evidence intended to be offered in the government’s case-inchief was seized without a warrant; and (5) photographs used in any photo lineup, as well as information obtained from any other identification technique. Rule 16(a)(6) is a catchall clause that requires the government to “[a]dvise the defendant’s attorney of evidence favorable to the defendant and material to the defendant’s guilt or punishment to which defendant is entitled pursuant to Brady and United States v. Agurs.” I have no idea why this isn’t part of the Federal Rules of Criminal Procedure, but it should be.

4. Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing. As Judge Nancy Gertner has pointed out on numerous occasions, courts in criminal cases routinely admit expert evidence lacking the proper foundations and sometimes amounting to little more than guesswork. Few defense lawyers challenge the reliability of expert evidence because few trial judges grant requests for Daubert hearings. And appellate courts affirm such denials under a very generous abuse of discretion standard.

With the mounting number of wrongful convictions based on faulty expert evidence in such diverse areas as arson and shaken baby syndrome, courts must be far more rigorous in enforcing Daubert before allowing experts to testify in criminal trials. Failure to hold a Daubert hearing where the reliability of expert evidence has been credibly challenged should be considered an error of law, as should the refusal to allow a defense memory expert where the case turns on conflicting recollections of past events.

5. When prosecutors misbehave, don’t keep it a secret. 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.

For example, the district judge in the Kojayan case, discussed above, could have obviated the appeal and the entire sordid episode by forcing the Assistant U.S. Attorney to answer a simple question: “Did Nourian have a plea agreement with the government?” Defense counsel urged the judge to ask the question but to no avail. It was not until the oral argument before our court that the AUSA was compelled to disclose that fact:

[Q]: Was there a cooperation agreement?

AUSA: Well, your honor, that is not something that’s in the record.

[Q]: I understand. Was there a cooperation agreement?

AUSA: There was an agreement with the Southern District of New York and [Nourian], yes.

Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights. In Baca v. Adams, a panel of our court dealt with a case where both the California trial court and the California Court of Appeal concluded that a prosecutor lied on the stand, but nonetheless deemed the error harmless. During our questioning, we asked the Deputy Attorney General arguing the case whether the lying prosecutor and another untruthful witness had been prosecuted for perjury or otherwise sanctioned.

The answer, of course, was that they had not been. We then suggested that, in resolving the case, we would write an opinion naming those who had misbehaved and the failure of the state authorities to take any actions against them. The video of that oral argument made its way to the blogosphere and has been viewed over 24,000 times.

Not surprisingly, three weeks afterwards, the California Attorney General wrote confessing error and requesting that we remand to the district court with instructions that it grant a conditional writ of habeas corpus. The incident, by the way, illustrates the importance of providing video access to court proceedings. It is far easier to hide an injustice from public scrutiny if only the judge and a few lawyers know about it.

Judges who see bad behavior by those appearing before them, especially prosecutors who wield great power and have greater ethical responsibilities, must hold such misconduct up to the light of public scrutiny. Some of us regularly encourage prosecutors to speak to their supervisors, even the United States Attorney, to ensure that inappropriate conduct comes to their attention, with excellent results.

[A memorable example is United States v. Maloney, 755 F.3d 1044 (9th Cir. 2014) (en banc). The AUSA had sandbagged the defense at trial by making for the first time a factual assertion not in the record in his rebuttal during closing argument. At oral argument, I asked the AUSA to go back and show the video of the oral argument to the U.S. Attorney and “see whether this [conduct] is something [she] want[s] to be teaching [her] line attorneys.” A little over two weeks later, we received a letter from Laura Duffy, the U.S. Attorney herself, admitting that the AUSA had acted improperly and promising to “use the video of the argument as a training tool to reinforce the principle that all Assistant U.S. Attorneys must be aware of the rules pertaining to closing argument and must make every effort to stay well within these rules.” Bravo Ms. Duffy!]

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.