Question For Judge Kopf: Why Are Some Violations of Law More Important Than Others?

For those who have waded through posts at SJ recently, you may have noticed a bit of a secondary theme developing, nipping the edges of police and prosecutors violating the laws that constrain them with abandon.

Some are gross violations, say murdering a guy for no particularly good reason except that it happens in the usual course, which tend to catch people’s attention.  But these are rare, despite the fact that they make the headlines and give the misimpression that it happens constantly.  The conduct may happen constantly, like a chokehold, for instance, but the outcome, fortunately, does not.

The focus here, however, is on a very different type of violation of the law.  The government, and those individuals who act on its behalf, has no rights.  Yes, judges and prosecutors write about the rights of the government, but they’re screwing up the words. The government has authority, and that authority is derived from laws that grant the government authority.  The exercise of that authority is both granted and restrained by the law. They have neither more nor less than the law allows.

For example, let’s say a law requires the government to turn over certain documents to the defense within 30 days of a request.  The request is made. Thirty days pass. Nothing is turned over.   Unlike someone being murdered, this sort of thing happens constantly. Granted, it’s nowhere near the level of seriousness of killing someone, but then, someone being murdered is an outlier; this is banal.

The remedy is usually a motion by the defense for an order by the court to compel the prosecution to do as the law requires it to do.  If one believes in such things, this is an incentive for the government to ignore law unless and until a judge orders it to comply.  If not, it’s a free pass on violating the terms of the government’s authorization to use its might against the people.

Why is this not a problem for judges?

Consider the defendant who stands in the dock for a strict liability, hypertechnical regulatory violation.  His crime is having engaged in conduct which, on its surface, harms no one and no ordinary person could conceivably know is a bad thing to do.  Despite his “ignorance of the law,” and the law allegedly violated being so far down the malum prohibitum road that it strains a rational person’s credence to believe that this could send a guy to Club Fed.  But it can, and it does.

How does the prosecution’s violation of the law, the rules that are putatively fixed to govern how it takes this miscreant down, hauls him into court, gives him as little due process as possible and then, if the heavens align, puts him in prison, differ?

Why is it that prosecutors violate their enabling laws, the constraints that the legislative branch sets on their authority, the mandate that they perform or not perform acts, and yet nobody gives a damn, or even if its worthy of mention, there is no consequence?

If a defense lawyer lied to the judge, he would leave the courtroom in cuffs.  When a prosecutor lies to a court, the judge goes out of his way to explain how it wasn’t intentional.   Why?

This isn’t about Brady violations, which raise a plethora of other, far more nefarious problems. This is about the routine, daily, ordinary, common failure to adhere to the requirements imposed by the law on the process by which government authority is granted to the prosecution.

Judge Kopf, can you explain to me why do judges shrug off the prosecutor’s violations of law?   Just asking.

 

12 comments on “Question For Judge Kopf: Why Are Some Violations of Law More Important Than Others?

  1. John Barleycorn

    Just because. Besides an orange is not an apple. Only the guilty have no patience.

    P.S. There ought to be a law that allows for a tax refund when one has to suffer through late or obstructed discovery. That or free thickets for the rides at the county fair. Wheeeeee…

  2. lawrence kaplan

    SHG: You are not really asking, but accusing– and rightly so. I am curious as to whether the Judge will answer.

    1. SHG Post author

      Not accusing, as much as loading the question. But Judge Kopf has smacked better lawyers than me for doing so, and if I deserve it, he’ll give it to me good and hard.

  3. ExEMT

    I agree with you that this lack of accountability from prosecutors (and the complicity of judges) is appalling. Prosecutors are rarely (if ever) sanctioned by the bar when they cheat on their disclosure obligations, and judges are held accountability for their lack of enforcement over prosecutors even less. Prosecutors who are convinced of a defendants guilt are not going to turn over evidence that may hurt their chances of obtaining a conviction.

    There should be quick and massive punishment for prosecutors who violate the rule (or rules). This isn’t happening because judges and prosecutors are protecting each other, even at the expense of wrongly convicted defendants.

    It’s essentially a no-lose situation for the cheating district attorney. If they fail to disclose the evidence and don’t get caught no one ever knows (except the wrongly condemned inmate and the real criminal). If they fail to disclose the evidence and eventually get caught, the wrongly convicted man is (potentially) freed, but they get to keep their job in the prosecutors’ office without punishment. Under pressure to get convictions, dealing often with an overworked and understaffed defense attorney, why not take a shot and withhold the evidence?

      1. ExEMT

        I am not totally sure if admitting to being Judge Kopf is a good or bad thing (although I have my suspicions), but I am not Judge Kopf :)

  4. Richard G. Kopf

    SHG,

    Sorry for the late reply. I have been doing medical stuff (my blood test this AM showed I need a transfusion tomorrow morning). I also had to conduct two sentencing hearings this afternoon. And, then I find your blog post.

    So, to your point:

    The premise of your question assumes a fact at issue. That is, do federal judges treat the violations of court rules and standards by prosecutors more leniently than those same judges treat similar violations by criminal defense lawyers? I can speak for myself, but I can’t speak for the other 93 federal courts.

    I can say the following about myself:

    * I know and like almost all of the prosecutors and criminal defense lawyers who appear before. This can be a problem. Somewhere in my blog is a reference to an old journal article entitled “The practice of law as a confidence game” by AS Blumberg and published in 1967. The thrust of the article is the judges, prosecutors, defense lawyers, and court staff “conspire” to bend or break the rules to the detriment of criminal defendants to make the lives of those players easier. The end result is that the judge doesn’t rock the boat too much for either side because to do so makes everyone’s life harder. From time to time, I think I am guilty of being a coconspirator in that enterprise. From the outside looking in, there are times therefore where it may seem I am going too easy on a rule breaker who happens to be a prosecutor. Then next day one may see the same thing for a criminal defense lawyer.

    * However, I also impose upon prosecutors a higher standard of conduct than I do criminal defense lawyers, that is, prosecutors must do “justice” by cutting square corners even if it means defeat. Criminal defense lawyers are required to act ethically but in the interests of their clients alone. I am very serious about this demand, and I think Nebraska federal practitioners, including prosecutors, know it. But, don’t take my word for it, check around if you like.

    * By the way, while I was in the practice of law, I prosecuted the impeachment of our Republican Attorney General. The predicates for that prosecution were a series of ethical violations that I thought he had committed by not going after a high flying banker who was loaning the AG money and then lying about it. The trial was held before the Justices of the Nebraska Supreme Court since Nebraska does not have a two-house legislative body. From that case, and for other reasons, I don’t think prosecutors around here think I would go easy on them if the lied to me or failed to cut square corners on a material matter with a defendant. But, again, don’t take my word for it, check around if you like.

    Scott the more I write, and reread what I have written, the more sanctimonious I sound. I hate that, for among other reasons, ‘cause I have an awkward need to confess my sins to you. Perhaps the most I can say is that my experience as a federal judge in Nebraska is evidently dissimilar to the experiences you and others in the defense bar have had in other federal courts, particularly large metropolitan courts. If a federal judge has consciously cut a prosecutor slack regarding a violation of court rule or standard, but failed to provide that same courtesy to a criminal defense lawyer, that judge is a federal judge in name only. He or she does not deserve the title or, more importantly, the power.

    All the best.

    RGK

    1. SHG Post author

      Judge,

      First, thanks for responding. You don’t owe me a response, and work or medical care certainly come first. I’m honored that you fit me in. Second, when I ask a loaded question like this (assuming a fact), it’s never meant to suggest a specific judge, and certainly not you.

      I remember reading “The practice of law as a confidence game” when you posted it. I hated it. Not that I didn’t see far too much of what we do in there, but it’s everything I fight against, and the article assumed the conspiracy to be a fait accompli, which I reject.

      But my question isn’t a comparison of prosecutors to defense lawyers or how the “usual courtesies” play out. Forget about us. My focus is on prosecutors’ statutory compliance, the satisfaction of their statutory duties if and when they feel like it. They blow a deadline? The judge shrugs. “Come on guys, what’s the big deal?” To the defendant, it can be a huge deal, but nobody really gives a hoot. After all, he’s the criminal anyway.

      I believe that you may have covered that, in the confidence game and general fondness for those you work with daily. In big cities, defense lawyers (and certainly defendants) are odd-man-out in the relative deal, and when judges let breaking the (not taken too seriously) law slide, it comes at our expense. Trying to get a judge to deal with this is virtually impossible. Laws, shmaws. At least when it comes to prosecutors.

      What strikes me as most interesting is that criminal defense lawyers know exactly what I’m talking about. Maybe we’re the only ones who do.

  5. Richard G. Kopf

    SHG,

    I do cop to saying “what the hell’s the big deal” during trials, but I also say that to both sides. (Note that all my pretrial discovery stuff is handled by Magistrate Zwart). But, I also get very angry when trial is delayed because Jencks Act stuff is not provided early. Years ago, our court had a “come to Jesus” meeting with the prosecutors on that issue and the problem with Jencks Act material has, I think, largely disappeared.
    In a similar vein, I have almost totally ignored the reciprocal discovery obligation that defense lawyers have under Rule 16. I can’t remember the last time I heard the prosecution complain about that during trial and I just don’t think about it independently. I suspect I don’t hear complaints from prosecutors under Rule 16 because they know I will ask “what the hell is the big deal.”

    You write: “What strikes me as most interesting is that criminal defense lawyers know exactly what I’m talking about. Maybe we’re the only ones who do.” I wish more federal prosecutors would engage in frank discussions like this on a public forum such as your blog. At the very least, that would help us understand their perspective about defense complaints that seem to you and yours to be self evident.

    All the best.

    RGK

    1. SHG Post author

      It’s a game to some prosecutors. For the most part, a game in which they have no skin, other than ego and office pride. Not that they necessarily see it as a malevolent game, but a game nonetheless. When you play a game to win, you sometimes cheat a bit, especially if no one holds you to the rules.

      The ones who care don’t play the game. The others do because they can. And when a defense lawyer raises it, the judge says “meh.”

      We may not show it in our faces or our voices, but every time our concerns are pooh-poohed, we die a little bit.

  6. Lawrence Kaplan

    Just today, by chance I came across the following passage in Thomas More’s Utopia, written in 1515:

    “There seem to be two kinds of justice; one fit for ordinary people, lowly and creeping on the ground, and bound down and fenced in on all sides; totally encumbered with chains and unable to escape; the other kind is a virtue proper to princes; which is more august than the ordinary virtue and hence much freer– forbiden, in fact, to do only what it does not want to do.”

    Wow! If we substitute “police and prosecutors” for “princes,” it seems as if in 500 years nothing has changed!

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