An explanation, but maybe a weak one

Yesterday I posted about the Ninth Circuit oral argument in the Baca habeas case. I introduced the post this way: “I am blessed to serve in a federal court with federal prosecutors who are by and large both smart and honest. Sure, there are some dolts, but at least they are honest idiots.” In other words, I distinguished between my experience with federal prosecutors, and the apparent misbehavior of one or more state prosecutors in the Baca matter.

That distinction drew sharp criticism.  SHG at Simple Justice wrote:

Damn those state court prosecutorial scum. Thank the lord that nothing like that could ever happen in federal court, right Ted Stevens? Well, at least it could never happen in a Nebraska federal courtroom, because there may be some dolts, “but at least they are honest idiots.”


It’s no longer deniable that it happens, but that doesn’t change the deniability of it ever happening right in front of our faces but we didn’t catch it. Or we didn’t want to catch it. Or we like those guys, so we just can’t bring ourselves to believe that they could do something so wrong. After all, people we like never do anything wrong.

Better to be an honest idiot than lying prosecutorial scum.

Another commentator on Twitter, added that my introduction was a “laughably bogus conceit that . . . starts off with a paean to the honesty+wonderfulness of fed prosecutors.” bmaz (12:35 PM – 24 Jan 2015).

The author of the article that I linked to in my earlier post commented, “IF you think it doesn’t happen–and DELIBERATELY–in the federal system, read LICENSED to LIE: Exposing Corruption in the Department of Justice. Unfortunately, it does. No one is immune from the targeting that is going on now, and one of the worst has just been named to head the fraud section of the Department.” (Sidney Powell says: January 24, 2015 at 1:29 PM) (capitalization in original).

I think it would be good to explain myself, although you may find my explanation weak and unconvincing. Nonetheless, here goes:

* Like you, I am the product of my experiences. They are deeply ingrained.

* Right out of law school, and for two years, I clerked for a federal appellate judge on the Eighth Circuit, Donald R. Ross, who was earlier both a war hero and the youngest United States Attorney appointed in the history of Nebraska. I witnessed first hand his insistence that federal prosecutors turn square corners. He beat into me, and others, the principle that federal criminal law viewed from the chair of the federal prosecutor was not about winning but rather about procedural and substantive fairness. That Judge William Webster, who served as a United States Attorney, United States District Judge, United States Circuit Judge, head of the FBI and head of the CIA, lionized Judge Ross on the occasion of the judge’s memorial service punctuates the point I am trying to make. I grew up in an environment where federal prosecutors were expected to be, and most often actually were, a very substantial cut above.

* After 28 years as a federal magistrate judge and district judge, I have witnessed countless examples of Nebraska federal prosecutors playing it entirely straight up and doing so when they could have stood silent and no one would have been the wiser.

* While I do not want to slander most Nebraska state prosecutors who are entirely ethical, I have too often seen in habeas cases or heard (in the case of a wiretap) state prosecutors behaving badly. My prosecution of the impeachment of Nebraska’s Republican Attorney General gave me a jarring and concrete reason to be skeptical about state prosecutors when compared to their federal counterparts.

* A former federal prosecutor and FBI agent with 42 years of experience brought Baca to my attention because he was appalled by the apparent misbehavior of one or more California prosecutors. That was entirely consistent with the pride I had witnessed in other federal prosecutors as they did the right thing day in and day out without any fanfare while expecting everyone else to do the same thing.

* To the degree that Judge Kozinski, a judge who I respect greatly, believes there is an “epidemic” of Brady violations in the federal system, that has not been my experience here in fly over country.  As a result, I did not want my earlier post to be an implicit endorsement of the judge’s criticism of federal prosecutors for violating Brady.

For those of you who read this blog with some degree of regularity, you will remember that this post is not the first one where I have tried to explain what many see as my tendency to be credulous when it comes to law enforcement. See Why Does Kopf Believe Cops Most of the Time?  My antidote is transparency with the hope that my implicit biases will be checked by such acknowledgements. As I have said before, that is not a perfect answer, but it is the best I can do with what little I have.





26 responses

  1. Judge,

    You have demonstrated three deep held beliefs piece by piece through your writing. 1) Cops don’t lie. 2) Federal Prosecutors are heroes. 3) Retained private counsel should be screened for conflicts of interest because they are likely being paid by the “boss” and not adequately representing their clients (i.e. Private counsel is one step away from being an active part of the ongoing drug conspiracy) and/or they are incompetent for lack of experience commensurate with federals who live in your courtroom.


    Private Counsel

  2. Explanation is understandable but it does create a kind of presumption of guilt, the French system without the judge of instruction. May be a product of federal trial courts becoming mostly drug courts. War on drugs may have done more damage to legal system than Prohibition.

  3. Somewhere, probably at Bryn Mawr or Mount Holyoke, a professor spends an entire course deconstructing that five-minute cartoon.

  4. I think this blog would benefit from a little less attention given to the permanently-outraged SHG, Sidney Powell, and their ilk. I get it: to attract paying clients, solo or small firm criminal defense attorneys need a bombastic I’m-a-fighter internet presence; and relying on evil-government rhetoric is typically going to be a lot easier than getting your drug lord, child-porn collecting, or white collar fraudster client off on the facts or the law.

    Interesting how (as the comment thread below illustrated) examining the actual facts of these “outrages” almost always shows that the original storyline was, at best, only questionably fair to the bad, bad prosecutors. Practicing lawyers tend to have difficulty in commenting objectively on public policy issues related to their field, for obvious reasons, and that philosophy applies as much to name-making criminal defense attorneys as it would be to prosecutors advocating higher sentences or civil litigators arguing about tort reform. If anything, more so here, because the typical defense strategy for these folks is more or less “sure, my client looks really guilty, but don’t you think the government is full of liars too, and they might be making him look bad through devious means I can’t quite explain?” So whipping up prosecutors-are-liars hysteria is good business for their day jobs as well.

    If they’re interested in effecting any actual changes in the criminal justice system, SHG, et al, might want to contrast the relative success of their tactics with the approach the FD system typically takes in policy advocacy, which tends to be a good deal more focused on data and sober discussion.

  5. Very well-stated.

    But it is one thing for the prosecutors-are-liars hysteria to come from the likes of SHG, et al. It is another, much more significant problem, when that same hysteria, that same rhetoric, is coming from a certain high-ranking member of the federal judiciary who is supposed to apply the rule of law with complete objectivity and dispassion.

    However, once you get on the prosecution-misconduct-is-an-“epidemic”-problem bandwagon, and you proactively associate yourself with persons who are trying to sell books that foster that perception of prosecutors, your ability to act as a fair, objective judicial officer (especially in the multitude of federal appellate and habeas cases where raising allegations of prosecutorial misconduct is commonplace) has been completely compromised.

    And strongly-worded recusal/disqualification motions directed at any judge who has clearly shown his/her predisposition on such cases should be utilized.

  6. The issue of police credibility was directly at issue in a case I handled many years ago, Eissa v. United States, 485 A.2d 610 (D.C. 1984). The defendant, who was from Egypt and worked as a dishwasher, trying to send money back to his family in Egypt, was charged with sexual solicitation. Mr. Eissa’s English was not very good and I believe that he could not read English at all. The undercover woman police officer testified that Mr. Eissa said he would pay her $10 to screw him.

    The judge found that Mr. Eissa was not very fluent or articulate in the English language. He explained that “despite his limited knowledge of the English language, I think that Mr. Eissa does understand
    the meaning of the word ‘screw’.”

    When the police officer on watch approached Mr. Eissa to arrest him, the officer threw him down and Mr. Eissa, who was diminutive and seemed frail, suffered a broken rib (as I recall). Further, as I also recall, Mr. Eissa lost his dishwashing job because of the broken rib.

    I have doubts as to what transpired when Mr. Eissa talked to the undercover police decoy. He described the incident to me numerous times and his story seemed consistent and reasonable. The undercover officer was dancing to and fro and attracted the attention of Mr. Eissa, who I believe was on the way to the 7-11 when he saw the officer. I think that he considered her someone friendly who was attracting his attention.

    As to police credibillty, if the evidence consists of the testimony of the undercover police officer that the defendant used the word, screw, how did the judge decide that Mr. Eissa understood the meaning of the word “screw”? In what circumstances would the judge rule against the testimony of the police officer that the defendant used the word, screw?

    This was a very troubling case and I still think about the unfair consequences to Mr. Eissa.

  7. David, given what Judge Kopf has said about his predisposition complete objectivity and dispassion as you are defining it does not seem to be his style, though the friends of USAttys may not have noticed.However I suspect that the other Judge K could rely on the same defense based on experience and observation. It seems to me you and Jay do not want objectivity you want judges in team prosecutor. t shirts. Given that some judges seem to see that as their role maybe an occasional doubter of the total purity of the government is not a bad thing.

  8. So, in a “normal” industry, there are ways to do quality control checks. Such as doing food inspections or clothing inspections or what-not.
    We don’t just conclude that an inspection process works well because inspectors don’t find anything, or because they find a lot of things. Neither of these are good measures unless we know how much there is to find.

    One of the solutions is so-called “salting.” To insert fake bad lots that inspectors should find. So manufacture some boots with bad eyelets and send them to the boot inspectors and see how many they catch.

    It is…very unclear to me whether this is practical in the criminal justice system.
    I suppose it would be sort of like an “internal affairs sting operation” (sounds like something out of a TV cop drama). One could imagine taking innocent people and using them to test the criminal justice system, perhaps with a guarantee of a pardon from the executive in advance if something horrible goes wrong, but it doesn’t seem like it would be a safe test to do. But maybe something smaller along the lines of Brady disclosures.

    I’m thinking out loud. That’s probably not a good idea here.
    But is there any reasonable way to assess how ethically prosecutors are behaving?
    (When in doubt, turn it into a question.)

  9. You certainly don’t owe us an explanation – you have already told us what you think, why you think it, and where your background has taken your views.

    Anyone that wants more, to tell you what to do our think–well, your comment to SCOTUS comes to mind. Tell ’em to STFU.

  10. John,

    Very interesting question. One way would be to the survey the number of times section 2255 motions are granted for prosecutorial misconduct involving Brady violations. All the best.


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  12. Of course, you can’t file a 2255 over a Brady violation unless you first discover the violation. That is, you have to find the hidden evidence before you can complain that it was hidden. And then you have to make an adequate showing of materiality.

    There’s no reason to believe successful 2255 Brady petitions are more than the tip of the metaphorical iceberg. They may not be, but we can’t know.

  13. The pro and con on this issue illustrates those instances when both sides are correct.

    Correct in their experience, even though those experiences develop views that are at odds.

    Especially those who work in contrasting environments, where things change at different speeds.

    U.S. v Alvarez has this language (in the 9th Circuit’s incarnation prior to going to SCOTUS): “Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).

    And we don’t just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics — an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?

    Our culture now is likely less honest than it was decades ago, or that some areas are less honest than others.

    Not surprising, then, that contrasting views are both correct sometimes.

  14. I am wondering, how many Brady violations are not exposed?

    We can probably say there are more Brady violations in the State criminal systems. That may be because State courts prosecute more crimes. It may also be because you can actually plead guilty in most states without allocution. It may also be because State prosecutors are not as good as covering up violations as Federal prosecutors are. It may also be that State prosecutors (at least at the top) are elected by the people, who may be more interested in convictions than justice. Or, it may be that, as Judge Kopf surmises, federal prosecutors are more ethical.

    Until we get some real enforcement mechanisms for addressing ethical violations by prosecutors, I don’t think we will ever stop Brady violations (or other prosecutorial misconduct). There is just nothing to gain by being ethical and very little to lose by being unethical.

  15. Yes, but like all (reasonable) decisions that people make, they don’t lie unless the pros of doing so outweigh the cons. If the (purported) liar has nothing to gain and everything to lose by lying, his/her statement is most likely not an intentional lie but, rather, an innocent mistake.

  16. Allan,

    With respect, I profoundly disagree with you. What personal satisfaction can a prosecutor take in his or her professional life if cheating with respect to Brady is acceptable? All the best.


  17. Jeff,

    In a sense, I agree with you. You can’t know what is unknown. But 2255 decisions are better than speculation.

    All the best.


  18. Well, I am confused with what you disagree with. How can we have so many Brady violations is prosecutors put justice and personal integrity at the top of their list? i would submit that prosecutors do everything they can to get a conviction and sometimes they cross the lines and sometimes when the cross the lines it is intentional.

    We seem to only catch the violations with the worst cases, i.e., horrific crimes. I shudder to think about the Brady violations involving lesser crimes.

    We should be able to agree there are prosecutors who intentionally cross the line. I wonder what you would attribute that to, except the unwillingness to take personal satisfaction in a job well-done, as opposed to getting convictions.

    I may be a cynic. Perhaps you are a naif.

  19. No, they’re just random bits of data, wholly worthless as a basis for determining the prevalence of Brady violations significant enough to merit new trials (let alone as a basis for determining the prevalence of all Brady violations).

    They tell us nothing except that they’re cases where Brady violations were found to require new trials. Are they 98% of cases of Brady violations? 2%? 50? There’s no way to know.

  20. Yes, Judge, and what reason does the police officer have to lie? Ergo, they must not be lying and the prosecutor must not be cheating.

    See any flaws in that line of reasoning?

    Good to see you back, healthy and candid as before.

  21. Part of it is that a Brady violation does not need to be intentional.

    The dispatcher failed to make a log entry when the local gadfly called saying he had information on the case — a Brady violation. The police department failed to forward supplemental reports from three months after they sent the case to the prosecution — a Brady violation. The inventory from the evidence log was vague as to the evidence collected — a potential Brady violation. The prosecution failed to make sure that the new defense attorney had documents that somebody had sent to the court — a potential Brady violation. The prosecution (or the police department) failed to recognize that a report on a disposed case might have relevance on an open case — a potential Brady violation. The prosecution was sloppy in documenting discovery responses — a potential Brady claim that will come down to how a judge views the post hoc attempt to reconstruct what was actually given to defense counsel in the face of incomplete records — a finding that may not be factually accurate.

    There are some prosecutors who have a win at all cost attitudes (as do some defense counsel). My experience is that the majority of attorneys do not. A lot of Brady claims are best characterized as negligence, not intentional misconduct. And a lot of it involves a small number of attorneys who are either gone before the violations are discovered or quickly find themselves shown the door.

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