The starting and ending point is that the vast majority of prosecutors in the federal and states courts are dedicated and often over worked public servants. But, there is little doubt that the adversary system of justice has brought out the worst of people occasionally
Brady v. Maryland is nearly fifty years old yet there remain far too many instances of “Brady non-compliance.” Appellate courts find prosecutorial error and simultaneously say it was harmless error. Too often there is more discussion in opinions about why the error is harmless, and not enough discussion about why the prosecutorial behavior is wrong and should not be repeated.
It is in that context that the WSJLaw blog recently had an interesting piece:
If you could look beneath the blindfold worn by Lady Justice, would her eyes be closed? One of the nation’s most influential judges suggests she would be giving a wink to prosecutors seated across from the defendant.
In the latest issue of Georgetown Law Journal, Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals turns a critical gaze toward America’s criminal justice system. It’s a long piece — part diagnosis of ailments and part treatment — with a broad sweep. But one of its major themes is prosecutorial advantage, both in federal and state courtrooms.
“They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape,” writes Judge Kozinski.
Among his specific concerns is what he sees is a reluctance on the part of judges to blow the whistle on prosecutorial abuse:
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….Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights.
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.