Team Prosecutor

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 this, Judge Kopf reminded of his earlier explanation about why he believed cops most of the time, which was addressed here.

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 . . .


21 thoughts on “Team Prosecutor

  1. Dave

    Prosecutors are supposed to have a higher calling than to just “win” at all costs. Process matters. This sort of thing I find very annoying. It is also disheartening to see judges so often reflexively act like they are on team prosecutor, believing cops and prosecutors no matter what. It destroys ones faith in the integrity of the justice system. Of course, when I say this I am accused by some of not properly supporting team prosecutor, or even “worse” of being s defense attorney. (I am a prpsecutor , but only for state appeals and federal habeas). But I see it differently. It doesn’t require switching teams to want an impartial judge and a just result. It isn’t like I don’t make the best arguments I can to win.

    1. SHG Post author

      And many prosecutors play hard, but fair, which is all we can ask of them. And that’s what we want them to do. It’s the ones who don’t who need to be addressed. This hardly seems controversial.

  2. Dave

    (And now I feel like an idiot for a typo spelling “Prosecutor”)

    It should not be controversial, and yet it is. And so many prosecutor’s offices just refuse to ever admit error, even when it is obvious and they really ought to. Many are usually just content to “let the court handle it” so they can’t be accused of being soft on crime or something.

    But courts often don’t handle it, particularly the state courts, which then makes it my problem on habeas. Or they “address” it by giving the prosecutor a mild lashing in the opinion, while still affirming the conviction. Which of course really does nothing. I think the female judge in that habeas case from the 9th circuit you just posted had it right when she asked how prosecutors will get the message about what is proper absent a reversal of a conviction. That is the only thing that matters and is the only appropriate way to truly address it. (I will spare you a digression into harmless error analysis.)

  3. Gloria Wolk

    The problem with “bent” prosecutors is the lack of checks and balances, and that places responsibility for a just system on the shoulders of judges. When judges criticize a prosecutor who created a conviction through tactics that violated our laws but do not name the prosecutor, they enable that person to keep doing the same. When they could but do not ban that type of prosecutor from their court, they enable. When they search vigorously for an excuse to uphold the conviction (i.e., “harmless error”), they enable this deplorable conduct.

    I suspect state prosecutors are guilty in far greater numbers than federal prosecutors, but it begins at the top–the federal courts–and trickles down.

    1. REvers

      Given the far, far higher number of state prosecutors, yes, they are guilty in far greater numbers than federal prosecutors. But I’ll bet the percentage is about the same for both sides.

  4. Chadtech

    I find it hard to believe that SHG blogs because of his business interest. Its hard to believe that he (or any single commentator) could significantly influence the general anti-government anti-cop sentiment. Even if SHG did benefit from general anti-cop sentiment, how could he possibly foster it in such a way that would have a clear ROI? Why not just sit back and rake in the clients from the political climate far outside of his control?

    Am I wrong in thinking that its implausible that SJ is a marketing tool?

    1. SHG Post author

      Are you kidding? Blawging has made me fabulously wealthy and famous! Oh wait. No it hasn’t. Never mind.

      The comments that this is some business development scheme are nonsense, as I’ve made clear many times in the past. It just doesn’t work that way. If there is any ROI, it’s negative, as I get hundreds of calls and emails seeking pro bono or public urination cases in Phoenix, but very rarely any case in which I would be interested.

      On the other hand, you might be surprised at the impact a blawg can have. There are a great many more readers here than most imagine, and they come from surprising places. I can state unequivocably that SJ has had a significant positive impact in a great many lives. And that has made it far more rewarding than money.

  5. Jim Tyre

    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.

    Kozinski is more likely to have been a contestant on The Dating Game than to be the SDS boss.

    Oh, he was. Beat Squiggy, too. (Since you don’t like links from commenters not named Barleycorn, go to youtube and search “dating game Koziinski”.)

    1. SHG Post author

      Yeah, yeah, yeah. We’ve all seen the Koz “the sex animal” dating game video. But SDS fit better, because guys on the Dating Game aren’t friggin’ radicals who hate The Man. Anyway, here’s the vid.

      1. David

        While you are at it looking into the Koz’s background, try Googling “alex kozinski,” “ralph mecham,” “rehnquist,” and “pornography.”

        The Koz is the last person in the world who should be questioning anyone’s ethics.

        There is lot more on the Koz. But as long as he is wearing his “Prosecutorial Misconduct Is An ‘Epidemic’ In America” t-shirt under his robe, you are probably not interested in his moral and ethical track record.

        1. SHG Post author

          Spare me the idiocy. Yours is one of the favorite arguments of idiots, as if challenging Kozinski’s “moral track record” in any way negates the impropriety of others? So he’s ugly? That doesn’t make you any less ugly.

          Kozinski’s checkered past has no bearing whatsoever on whether prosecutors engage in misconduct. I’m well aware of his past, and have even written about it, but he’s still a judge. So save your idiocy for reddit, where someone might be stupid enough to fall for it.

          1. David

            Yes, the Koz’s ethical background and whether or not a prosecutor has engaged in misconduct are two seperate and distinct issues.

            But, given the fact that the Koz faced potential criminal prosecution for his conduct and, in fact, hired a top-gun defense attorney to protect him from potential prosecution, do you think that would in any way whatsoever taint his perception of prosecutors?

            And, when coupled with his unsubstantiated “epidemic” rhetoric and his having written the foreward to a for-profit book that attacks prosecutor’s ethics, do you really think that he should be presiding over a case alleging prosecutorial misconduct?

            Wouldn’t a reasonable person believe that the Koz should have recused himself from the Baca v. Adams case? And let the case be decided by jurists who did not appear to have a vested interest in reaching a particular result?

            On the oral argument video, for example, Judge Fletcher attempts to ask a substantive legal question about “imputing” knowledge to the trial prosecutor under Giglio. And Judge Wardlaw attempts to ask questions regarding the Supreme Court’s AEDPA holdings. But both of their lines of inquiry are, for all practical purposes, sidetracked by the Koz’s desire to bully, cajole, intimidate and threaten the deputy attorney general who was attempting to discuss the substantive legal issues that control the resolution of the case.

            Rather than engage in a dispassioned, but probing, legal and factiual question and answer session (which is the purpose of oral argument), the Koz was clearly more interested in grandstanding and furthering his “epidemic” storyline.

            Take off your anti-prosecutor blinders, try and be objective, stop backslapping the Koz for pushing your agenda and maybe then you can provide worthwhile, fair, commentary.

            Yeah, and hell will freeze over.

            1. SHG Post author

              Take off your anti-prosecutor blinders, try and be objective, stop backslapping the Koz for pushing your agenda and maybe then you can provide worthwhile, fair, commentary.

              Are you on drugs?

            2. Sgt. Schultz

              So let me make sure I’ve got this right. If I get on my knees and blow prosecutors, then I’m objective, worthwhile and fair? Like you?

  6. Not Jim Ardis

    I’m not “disturbed” by Judge Kopf’s default of believing what the members of Team Prosecution say in court. His position is based on his personal experience, and while I don’t agree with him (and suspect that at least some of the “truthful” statements made under oath are nothing of the sort, but remain unknown to him) I don’t begrudge him his view. Heck, he might have managed to actually have had real and honest-to-goodness fair and honest prosecutors who didn’t ever withhold exculpatory evidence.

    I would just hope that he does indeed take claims that evidence has been willfully withheld seriously, and does not dismiss them out of hand because “these guys would NEVER do that.”

    Which I fully believe he does.

    I’m more disturbed by the absolute faith in the prosecution by some of the commentariat there than by his honest admission.

    1. Not Jim Ardis

      Re-reading, I see that my “Which I fully believe he does,” could be misconstrued.

      When I say that I believe he does, I mean that I believe he takes claims of misconduct made before him seriously, not that he dismissed them out of hand.

  7. John Barleycorn

    Come to think of it…courtrooms across the nation could use some “real” cheerleaders.

    Fact of the matter is black robes just aren’t sexy enough to really legitimize the whole experience and the prosecution is always the home team after all.

    Besides what’s wrong with giving prosecutors a little inspiration to keep us all safe?

    I got one that I think more than a few judges throughout the land will enjoy. It’s gonna make a great twenty minute porn flick too, seeing as how I just found me a Nancy Grace look-alike starlet to be captain of the cheerleading squad.

    Here you go…A Cheer for Team Prosecutor.

    5,6,7,8 – You know what you’ve got to do?

    (clap, clap)

    You’ve got to back team Prosecute! – And roll with the boys and girls in Blue!

    (clap, clap)

    Oh Yeah!
    Them too!
    Them too!

    (clap, clap)

    Oh Yeah!

    (clap, clap)

    We got the truth!
    Plenty enough – of – the truth you need!

    (clap, clap)
    (clap, clap)

    Oh Yeah,


    Oh Yeah!
    Oh Yeah!

    (clap, clap)
    (clap, clap)

    And scream
    Oh Yeah
    Yeah, Yeah!

    Hey, Hey!
    Brady Who-

    What rules?

    (clap, clap)

    Get out of our way,
    Yeah, Yeah,

    Do We Rock?
    Yeah, Yeah,

    Take it to the Top?
    Yeah, Yeah

    Are we gonna stop?
    No way!
    No way!

    (clap, clap)

    Oh Yeah!
    Oh Yeah!

    Enough of the truth for



    Oh yeah!
    Yeah, Yeah!!!

    *The detailed choreography including the Brady Twirl and Pom Pom moves have been omitted due a few of the moves needing to be copyrighted before they become legend.

    P.S. If any of you could put in a good word for me with Alex I would appreciate it. I am hopping to get his permission to use some of his quotes on the video jacket.

    1. Jim Tyre

      P.S. If any of you could put in a good word for me with Alex I would appreciate it. I am hopping to get his permission to use some of his quotes on the video jacket.

      That’s the problem with using a nym. (“John Barleycorn” is a nym, isn’t it?) How would I know for whom to put in a good word?

      1. John Barleycorn

        Problem? No problem.

        I tend to ramble too much if I am present during “contract negotiations”. It won’t be me “negotiating” with Alex for the use of some of his quotes to put on the video jacket anyway. I am told I don’t really need his permission. It’s a heads up a courtesy deal.

        Lawyers, agents, etc…not all of them are overpaid you know. They are a bit squeamish about inviting judges to my after parties after the unveiling of a new action figure line-up and or a first screening, but they usually figure out a way to make sure no one is put in a conflict of interest position in the future.

        You would be surprised who all shows up and the conversations are as dynamic as it gets… You should hear what some prosecutors have to say when they let their hair down, and them judges are a riot.

        You are invited to the next party Jim. Don’t worry you can even use an alias if you want and relax the legal guild is limited to 7% of the invitation list. Recently most of my after parties have been costume parties anyway. Allis’s add to the intrigue.

        Cheers, and if you do put in a good word for me make sure to let him know that most attendees that aren’t on a tight schedule usually find their way home in a few days or so.

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