California caves

Commenting on the Baca habeas case from California, I caught a fair amount of guff for suggesting that federal prosecutors are a cut above their state counterparts especially when it comes to turning square corners. In Baca, California has now caved to the threats of the Ninth Circuit to wage a holy war and the state has agreed to a conditional grant of the writ. The order is here.

The LA Times has a great article on the case. See Maura Dolan, U.S. judges see ‘epidemic’ of prosecutorial misconduct in state, LA Times (January 31, 2015).* The article quotes a study regarding the behavior of state prosecutors in California, and the locus of the “epidemic” of prosecutorial misconduct alleged by some:

Santa Clara University law professor Gerald Uelmen said the judges’ questions and tone showed they had lost patience with California courts. State judges are supposed to refer errant lawyers, including prosecutors, to the state bar for discipline, but they rarely do, Uelmen said.

“It is a cumulative type thing,” Uelmen said. “The 9th Circuit keeps seeing this misconduct over and over again. This is one way they can really call attention to it.”

A 2010 report by the Northern California Innocence Project cited 707 cases in which state courts found prosecutorial misconduct over 11 years. Only six of the prosecutors were disciplined, and the courts upheld 80% of the convictions in spite of the improprieties, the study found.

I continue to believe that the huge majority of federal prosecutors (and certainly the ones I know) wouldn’t be caught dead behaving like the 707 state prosecutors in California that were identified in the study quoted above. If there are those who believe I am wrong and the “epidemic” has infected a substantial number of federal prosecutors, I would be interested in learning about solid evidence that federal prosecutors as a class engage in this type of “misconduct over and over again.”

Talk is cheap.

RGK

*H/t Howard Bashman and How Appealing.

 

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.”

Sure.

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. see.LicensedtoLie.com.” (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.

RGK

 

 

 

%d bloggers like this: