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

 

 

 

When state prosecutors lie under oath and present the testimony of a witness that the prosecutor knows to be untrue

screen-shot-2015-01-20-at-10-36-31-pmI 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.

From a retired former federal prosecutor with tons of experience as an FBI agent, as an AUSA, and as a supervisor, an e-mail landed in my account two days ago. My correspondent urged me to read the following article and view the video of arguments in the Ninth Circuit presided over by Judge Kozinski. See Sidney Powell, Breaking: Ninth Circuit Panel Suggests Perjury Prosecution For Lying Prosecutors, New York Observer (January 20, 2015).

It is  may be shocking proof that some state prosecutors are liars and some state prosecutors knowingly present liars as witnesses. To them, winning is everything. See the update below. I have NOT read the entire record.

Judge Kozinski and the Ninth Circuit are bound and determined to punish such behavior. Please read the article and view the video cited above. Starting off it will sicken you, but in the end it will make you proud even though you should worry about the tip of the iceberg.

Thanks Jeff.

UPDATE:

A commentator who states that he or she has read the record has provided this important information:

I just read the documents that were filed with the federal court in connection with this habeas case. They are quite extensive. They are all available on PACER. You may want to read them for yourself. After doing so, you may want to edit the title of your post.

Apparently, what you classify as a “prosecutor lying under oath,” involved a prosecutor who was called as a witness to explain to the jury why a witness/informant’s sentence was reduced by three years. That prosecutor testified that the sentence reduction was the result of a sentencing mis/re-calculation, and not a quid-pro-quo in exchange for the witness/informant’s testimony against the defendant. That prosecutor also testified to the same effect in connection with the federal habeas proceedings, essentially sticking to his recollection as testified to at the defendant’s trial. There is a transcript of the witness/informant’s sentencing proceeding that, on its face, appears to condradict the witness/prosecutor’s recollection of events (that took place many years before he testified at the defendant’s trial. But that prosecutor testified (in connection with the federal habeas proceedings) that there off-the-record discussions regarding whether or not the witness/informant’s sentence should be reduced which apparently bolster the witness/prosecutor’s recollection of events.

Bottom line: In this case (which apparently was tried twice over a period of seven years), it doesn’t seem fair to tar the prosecutor as a perjurer (as you do by your post) untill you have read the entire, voluminous record that exists and is available for public inspection. The same goes for the Ninth Circuit panel. Judge Kozinski has stated that there is an “epidemic” of Brady violations being committed by prosecutors throughout America. It seems like he is on a crusade in this area, albeit a good crusade if his statement is accurate. But, based upon my quick reading of the record in this case, it seems as though he (and his collagues on the panel) jumped the gun (probably based upon their law clerk’s memos) without carefully and fully reading the entire record in this complex case.

With respect to the trial prosecutor, apparently he had no knowledge that any witness at the trial provided testimony that was in any way false or misleading. He testified to this effect at the federal habeas evidentiary hearing. And the magistrate judge presiding over that hearing expressly found that the trial prosecutor did not know that any witnesses testimony was false/misleading. You may want to read the record. It may cause you to remove the “that the prosecutor knows to be untrue” language from your post.

The internet is a powerful tool that has served many great purposes. But, if used improperly, without cross-checking the accuracy of what is being posted (which, I concede, can be a time-consuming task that detracts from the allure of instantaneous reporting of events that blogs like yours permit) it is nothing more than a gossip-mill which, in some cases, can unfairly destroy the reputation of innocent persons.

RGK

 

David Lat’s first novel, “Supreme Ambitions,” deftly dissects judicial power, how to get it and how to use (and abuse) it

David Lat is a champion of judicial transparency even though he is a slightly monstrous one. If you read his first novel, and I heartily recommend it, you will understand my choice of words.

The annoying thing is that Lat is young. If you don’t know about his first blog, you have not been paying attention to the federal judiciary. Entitled  Underneath Their Robes, and written under the pseudonym Article III Groupie (because he was then a junior federal prosecutor and federal prosecutors are typically plodding and illiterate and constitutionally unable to rock the boat), Lat wrote snarky, terrifically funny, sometimes shocking, and always utterly revealing pieces about federal judges and their law clerks including especially those at the Supreme Court. These offerings were not made up. He had real sources and they leaked everything to him. Highly regarded federal appellate judges sought him out for coverage. He wrote in a female voice, and his fashion sense was as acute as his other skills.

It took a kid’s courage, a scamp’s mind, and boatload of diverse talents equivalent to a dangerously packed Filipino ferry to do what he did. Did I mention Harvard, Yale law, a clerkship with the brilliant Diarmuid F. O’Scannlain of the Ninth Circuit, a stint at Wachtell Lipton Rosen & Katz and an appointment as an AUSA under (bad word choice) United States Attorney Chris Christie (yea, that guy)?

Lat was born in 1975, just like my second daughter Lisa. That makes me want to kill him.

Lat was born in 1975, just like my second daughter Lisa. That makes me want to kill him.

Lat revealed his identity in a November 2005 interview with Jeffrey Toobin of The New Yorker. After that, he left his prosecutor’s position in New Jersey to enter the literary world, founding, among other things, the everything-about-law-site, Above the Law.

And now we have the wunderkind’s first novel. It will be on “book stands” in hard cover around December 1, 2014, but you can (and should) pre-order now. The list price is $22.95, but Amazon will sell it at a pre-order price of $17.21. Published by the ABA, Lat titled his book Supreme Ambitions.

Lat’s novel is a cross between a serious look into the heart of darkness and an insouciant study of Manolo Blahnik footwear. It recounts the story of a young women, Audrey, who is half-asian. She is beautiful, poor, a gunner without being a mean girl, and a Yale law graduate. Audrey serves as a law clerk to a ruthless female federal appellate judge on the Ninth Circuit who is also of Asian origin. Our heroine desperately wants to clerk for a Justice of the Supreme Court. If Audrey plays her cards right, her Ninth Circuit boss, with more than a passing interest in the Supreme Court herself, can fulfill the waif’s supreme ambition. But what if Audrey must sell her integrity to get what she wants? For the rest of this captivating story, buy the book.

In no particular order, here are a few of my thoughts:supreme-ambitions-cover (1)

  • The novel is more about truth than fiction. This is legal realism at its finest but told in the highly unusual and difficult form of a a well-crafted novel. Concentrate on the details as you read this piece. It is Lat’s attention to that detail–the manner of speaking, the fixation on appearances, the guardedness, the obscene opulence of appellate judicial chambers, the hard, hard work that appellate law clerks are required to put in, the silly and ultimately unwarranted hero worship of federal appellate judges by law clerks just out of law school, the horrid egotism that runs unchecked and unchallenged among so many federal appellate judges, the use of words to hurt and demean for no reason other than to feel the sharpness of the blade cut sinew, and the pettiness, oh, the pettiness–that both brings this novel to life and gives it more than passing significance.
  • Especially for me, the book brought back memories. Long, long, long, long ago, I served as a law clerk to Judge Donald R. Ross on the Eighth Circuit Court of Appeals. It was the best job I have ever had. Lat’s novel reminded me of that wonderful period when high drama appeared around every corner. When my judge secretly flew out to the east coast on a private jet during the midst of Watergate, the fact that he had formerly been Vice Chair of the RNC, the fact that he had been the arrangements chair for the 1968 Republican convention in Miami, and the fact that he was the lawyer who dumped Barry Goldwater and his acolytes from power within the GOP, punctuated the point that some federal appellate judges remain unseen national power brokers even after they take the bench. My memory fits perfectly with Lat’s intriguing narrative.
  • Lat is a taxonomist of the first order. He divides federal appellate judges into two camps. The CEOs who manage cases, but who find little interest in the nitty-gritty of the law. They are said to see the big picture. Alternatively, there are the judges who are technicians who love the law, and the nitty-gritty that goes with it. They are said to be the intellectuals. While this division does not always hold true in real life, my experience suggests that Lat’s taxonomy is generally accurate. For what it is worth, my view is that the perfect appellate judge is the one who blends both attributes. Unfortunately, there aren’t many of those judges.
  • If you are expecting something from the likes of John Grisham, look elsewhere.
  • There is a hipster quality to the book, but it is not overdone.
  • Snark? Oh, of course. Do you know what TTT stands for? It stands for “Third Tier Toilet.” Snotty appellate law clerks from elite law schools use TTT to describe law schools like the University of Nebraska College of Law, my law school. At times, the novel has a very sharp edge to it.
  • Lat’s use of his real life blog Underneath Their Robes as an important element in the story initially annoyed me because it seemed needlessly self-promotional, but the device ultimately ended up being brilliant.
  • Until the end, there were not enough white guys. I’m kidding, but only sorta. As you reach the end of the novel, I think Lat wants you to think about Chief Judge Kozinski (a former law clerk to Warren Burger, Supreme Court of the United States, 1976-1977) and his independence, his brilliance, his weirdness, his powerful writing, his love of the law, his understanding of power, his terrific sense of humor and his intellectual honesty. Lat hints that such men (and women) are there if only the political will exists to put them on the upper rungs of the federal judiciary. And so it is, as the 281-page offering ends, that Lat provides me with a glimmer of hope.
  • The novel is fun for the gossip potential too. If you know what to look for, you can find references to present day Judges and Justices, although their names are changed. There a several nods to Lat’s old boss, Diarmuid F. O’Scannlain of the Ninth Circuit, but, of course, under a different name. Of particular interest to me, Eighth Circuit Court of Appeals Judge Steven Colloton is favorably mentioned as “feeder” judge to the Supreme Court but under another name. Later, he is mentioned as a likely candidate for the Supreme Court. By the way, I know Steve (just a little) having sat with him on the Court of Appeals and worked with him on other projects. Lat’s speculation about the upward trajectory of this young Iowa federal appellate judge from flyover country fits my guess-work. That said, and while I like and respect him an awful lot, Steve would be well advised to polish his interpersonal skills with other judges. Just sayin’.
  • In the book, Lat uses court cases as stage props, but he gives us realistic cases to ponder. Because the novel concentrates on the tension between judges of different jurisprudential stripes (“conservative” and “liberal”), Lat is forced to describe the arguments for and against the competing alternatives. His analysis is balanced. Indeed, there are portions of the novel when the characters are getting down to the cases where Lat’s book might serve as a fun “hornbook.” Again, the detail Lat provides gives the novel a feel of reality that would be impossible to achieve without it.
  • I continue to thank the God(s) that my law clerks (Jan and Jim) are career clerks. Lat accurately describes the kids just out of law school who populate the ranks of federal appellate clerks. Sure, they are brilliant. But the acne that still dots the faces of many of them highlights their immaturity, and the ultra strange fact that important decisions are substantially shaped by children scares me.
  • Lat pens dialogue reasonably well for a first timer. Some of it is even marvelous. Dialogue is not, however, his strength. Because Lat is such a wonderful observer, I hungered for longer strings of dialogue but that is not found in Supreme Ambitions. Good dialogue is impossibly hard to write without years of practice. He will get better with time.
  • Next time around (and I strongly encourage Lat to continue writing novels), I would like David to concentrate on the TTT of the federal judiciary, the federal trial courts. There is a drama there as well as a desperate need for transparency. Again, the great value of Lat’s work is that he gives us legal realism in a transparent and knowing manner while using the unusually difficult but terrifically engaging device of a novel. Lat can become the master of this powerful new way of describing our opaque federal judiciary. I sincerely hope he continues.

RGK

Guest Post on Judge K and Brady with a fascinating twist

One of the joys of this blog is that I frequently receive views that are beautifully expressed and very thoughtful. One of the readers of this blog, with a very interesting background herself, sent me the following, and graciously allowed me to post it. I particularly urge you to read the article linked at the end of this guest post for a fascinating twist.

Dear Judge Kopf,

I should thank you for giving me an interesting topic to occupy my insomniacal hours. I read with great interest Judge Kozinski’s dissent from denial of rehearing en banc. He is, as you say, a most interesting man, and the salacious facts of the case at hand are TV-movie-worthy. And, to be sure, the question of prosecutorial misconduct is one that has been ever-present in my thoughts for the years I have spent as a county and federal public defender.

[Your question about whether Judge K is right bears plenty of thoughtful (and limey disparate) responses; indeed, in my home state of SC, we have a mini maelstrom of controversy brewing because one of our Supreme Court justices recently excoriated prosecutors for what he called their widespread misconduct…in a speech before the state prosecutor’s convention. Now, the prosecutors, who are accustomed to being able to shout “off with their heads” in the press regularly about the supposed thugs and reprobates they are charged with protecting the rest of us from, have gone positively hats mad in response, and are seeking to have the justice (of a five-person court of last resort) recused from all criminal cases. That will happen on a cold day in hell, I figure, but South Carolina’s legislatively elected court could certainly be altered in the future depending on the political power the prosecutors might bring to bear. The whole affair reflects well on no one, so far as I can tell. But that’s not why I’m writing. I have no idea whether Judge K is right. In my experience, prosecutorial misconduct is far more often of the nonfeasance than malfeasance variety, and it is often only long after the fact, if ever, that such sins of omission are discovered. I suppose I will need to hang around for another few years to see if my hunches about a very small number of cops and prosecutors are borne out.]

Before I could think through the wisdom of a lifelong pinko liberal googling anything including the term “ricin” after 2AM on a Friday night, I was knee-deep in searches for more of the backstory here. This was unwise not only on the snooping government overlord front (terrain I blithely traipse across with a frequency that my husband finds distressing—curiosity kills), but also on the very poor cure for insomnia front.

The most fascinating of the things I came across was a literary essay published in 2009 in a web-only magazine. The author is the daughter of the nursery owner who sold the few bucks worth of castor beans to the defendant in Judge K’s order. She attended the entire trial, and her observations and elliptical commentary (it is clear by now that I favor elliptical commentary, I suppose) on the trial and on the timing of the case (discovered before 9/11, but prosecuted after passage of the PATRIOT act) and on the strategic decisions made by the defense and on the intersections of the case with her family are fascinating. Her piece is here.

Cameron Blazer

RGK PS For background on Ms. Blazer, see here.

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