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Wed Nov 2, 2016, 10:30 PM

Judge Kozinski on prosecutorial misconduct - Helps Explain Late Election FBI Leakfest

Here are excerpts of an article by Judge Alex Kozinski discussing examples of prosecutorial misconduct. Perhaps not surprisingly, several of his examples involve the pursuit of political leaders in the midst of an election. The fact that it happens among prosecuting attorneys is bad enough. However, investigating agents may have even less checks on their ambitions to bring down a big fish. At least prosecuting attorneys are constrained by the fact that they will ultimately need to prove their cases beyond a reasonable doubt in a court of law.

In contrast, an investigator has more leeway to investigate before clear evidence of wrong doing has been discovered. Of course, the prospect of bringing down a big target can lead to abuses similar to those described below, which is becoming increasingly apparent in the FBI with the desperate last minute leaks of damaging information against Hillary Clinton.


Prosecutors hold tremendous power, more than anyone other than jurors, and often much more than jurors because most cases don’t go to trial. Prosecutors and their investigators have unparalleled access to the evidence, both inculpatory and exculpatory, and while they are required to provide exculpatory evidence to the defense under Brady, Giglio, and Kyles v. Whitley, it is very difficult for the defense to find out whether the prosecution is complying with this obligation.

Prosecutors also have tremendous control over witnesses: They can offer incentives — often highly compelling incentives — for suspects to testify. This includes providing sweetheart plea deals to alleged co-conspirators and engineering jail-house encounters between the defendant and known informants.

Sometimes they feed snitches non-public information about the crime so that the statements they attribute to the defendant will sound authentic. And, of course, prosecutors can pile on charges so as to make it exceedingly risky for a defendant to go to trial. There are countless ways in which prosecutors can prejudice the fact-finding process and undermine a defendant’s right to a fair trial.

This, of course, is not their job. Rather, as the Supreme Court has held, “A prosecutor is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.

All prosecutors purport to operate just this way and I believe that most do. My direct experience is largely with federal prosecutors and, with a few exceptions, I have found them to be fair-minded, forthright and highly conscientious.

But 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.

Prosecutorial misconduct is a particularly difficult problem to deal with because so much of what prosecutors do is secret. If a prosecutor fails to disclose exculpatory evidence to the defense, who is to know? Or if a prosecutor delays disclosure of evidence helpful to the defense until the defendant has accepted an unfavorable plea bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they know to be liars, or if they acquiesce in a police scheme to create inculpatory evidence, it will take an extraordinary degree of luck and persistence to discover it — and in most cases it will never be discovered.

There are distressingly many cases where such misconduct has been documented, but I will mention just three to illustrate the point. The first is United States v. Stevens, the prosecution of Ted Stevens, the longest serving Republican Senator in history.

Senator Stevens was charged with corruption for accepting the services of a building contractor and paying him far below market price — essentially a bribe. The government’s case hinged on the testimony of the contractor, but the government failed to disclose the initial statement the contractor made to the FBI that he was probably overpaid for the services. The government also failed to disclose that the contractor was under investigation for unrelated crimes and thus had good reason to curry favor with the authorities.

Stevens was convicted just a week before he stood for re-election and in the wake of the conviction, he was narrowly defeated, changing the balance of power in the Senate. The government’s perfidy came to light when a brave FBI agent by the name of Chad Joy blew the whistle on the government’s knowing concealment of exculpatory evidence.

Did the government react in horror at having been caught with its hands in the cookie jar? 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.

It was only the extraordinary persistence and the courageous intervention of District Judge Emmet Sullivan, who made it clear that he was going to dismiss the Stevens case and then ordered an investigation of the government’s misconduct that forced the Justice Department to admit its malfeasance — what else could it do? — and move to vacate the former senator’s conviction. 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.”

* * *

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.

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Reply Judge Kozinski on prosecutorial misconduct - Helps Explain Late Election FBI Leakfest (Original post)
TomCADem Nov 2016 OP
anneboleyn Nov 2016 #1
TomCADem Nov 2016 #3

Response to TomCADem (Original post)

Wed Nov 2, 2016, 11:05 PM

1. Thank you for an excellent post. This was a great read.

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Response to anneboleyn (Reply #1)

Thu Nov 3, 2016, 11:56 AM

3. The Flurry of Stories ...

.... illustrates how there is an element at the FBI that just wants the big score despite there not being evidence to support an indictment. Think about how Monica Lewinsky suddenly became the focus of the Bill Clinton impeachment proceedings even though it was so attenuated from Bill Clinton's duties as President.

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