By way of explanation for his view that the prosecutors who appear in federal court in general, and in his courtroom in particular, are pristine and above reproach, Judge Richard Kopf offered his experiences.
* 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.
* 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.
To most readers here, the judge’s transparency is, to be kind, disheartening. While we might hope for a perspective that takes into account the reality of our experiences, particularly in light of all that has now been conclusively shown via video that before were mere allegations, easily dismissed with a wave of the hand, a bit more skepticism might be warranted.
But that’s here. That’s us. That’s me. Perhaps more disturbing than Judge Kopf’s views, which, to his credit, he willingly exposes, are the views of some of his readers as reflected in his comments. For example,
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.
Ironically, this same commenter, at Judge Kopf’s post explaining why he tends to believe cops, offered this characterization:
I’m sure your response will be the usual demonization of everyone in law enforcement as pathological liars, etc, but I don’t think that persuades many outside the Radley Balko corners of internet.
If that’s not clear enough, the comment was followed up by this:
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.
In other words, Judge Kopf’s post of the 9th Circuit oral argument in Baca v. Adams condemning prosecutorial misconduct, despite his inclusion of a paean to the glories of federal prosecutors, made the judge a participant in the “prosecutors-are-liars” hysteria that comes from the likes of me and my “ilk.” The judge might believe federal prosecutors are “a cut above,” and cops don’t lie, but that’s hardly good enough. Anything less than unfettered adoration means he has failed to fulfill the duties of his office, “to apply the rule of law with complete objectivity and dispassion” by being blindly pro-prosecution.
So while some here will think ill of Judge Kopf for his explanation, he was similarly accused of being a commie sympathizer for not being pro-prosecution enough by harboring any doubt whatsoever that all cops and prosecutors are the embodiment of truth, justice, etc.
And don’t even mention 9th Circuit Judge Alex Kozinski, who is a step away from being the next head of Students for a Democratic Society. Oddly, nobody mentions the other two judges on the 9th Circuit panel in Baca, who perhaps were subject to a magic spell by the evil Judge Kozinksi that caused them to be prosecutor-haters.
A riposte at Judge Kopf’s blog from a commenter using the handle repentinglawyer, whose subtlety and dry wit I’ve come to admire, replied to those who were sharpening their pitchforks:
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.
Those who are disturbed by Judge Kopf’s failure to embrace the positions favored by criminal defense lawyers might take some comfort in the fact that the prosecutorial side finds the judge wanting as well. But repentinglawyer’s quip, that they expect judges to wear Team Prosecutor t-shirts instead of robes, should be taken to heart by all of us.
There is a strong tendency to see this as a team sport, and we applaud our own team members and boo and hiss at the other team. When a member of “our team” doesn’t stick with the program, some team members get bent out of shape. To a great many here, I’m not a good team player, despite the other team dismissing me as the sort of guy in Radley Balko’s corner of the internet.
Despite the flaws with the sports analogy, there is one more piece that seems fitting to note. The most we can, and should, hope for is a level playing field. To the extent the other team finds it necessary to vilify defense lawyers, as they accuse us of vilifying prosecutors, maybe we’re closer to level than we think. Now, if we can just get Judge Kopf to shed his Team Cops t-shirt, and his Team Federal Prosecutors cap . . .