Pity the Poor Prosecutor

If criminal defense lawyers think they have it hard, it seems as though we’re living large compared to the misery of a prosecutor’s life.  Or so says a commenter named “Paul” to Judge Richard Kopf’s Hercules and the Umpire post on Chief Judge Alex Kozinski’s Olsen dissent.

So it’s clear, Paul gives no last name nor identifying information to pinpoint where, in the spectrum of Justice (with a capital “J”) he lives, but from the content of his comment, it’s clear that he’s telling the tale of woe from behind a rock in the dark corner of a federal courthouse.

“[E]pidemic”?  No.  Just hyperbole from Judge Kozinski.  But that is not surprising.

Do Brady violations (which, as a matter of law, encompass good faith and bad faith conduct) occur?  Yes.

Can they be completely prevented?  No.

Can they be minimized?  Yes.

While there can be rational debate over what constitutes an “epidemic,” the disconnect between the duty and the performance is  apparent from the outset. They occur? So did you fix them? Did you out the prosecutor who violated Brady?  Did you think twice about the guy going to prison because some prosecutor, maybe named Paul, was responsible for the violation?  Or do you shrug them off as collateral damage? They can’t be completely prevented? Why not?

Every prosecutor needs to sit down with every member of his/her “prosecution team” (as that term has been defined by the Supreme Court) before trial and make sure that he/she has possession of all the evidence in the case, inculpatory and exculpatory.  Then, before trial, the prosecutor should meet with defense counsel and make sure that defense counsel is in possession of all the evidence possessed by the prosecutor.  This meeting should be documented, by having defense counsel sign an acknowledgment of the “open file” discovery.

By following this procedure — a procedure that may be quite time-consuming in some cases — the prosecutor will be fulfilling his/her legal and ethical obligation; ensuring that the trial goes smoothly; and minimizing the likelihood that a favorable verdict will be reversed (on appeal or, more likely, in a habeas proceeding) on the ground of ineffective assistance of counsel (IAC).

Procedures can be time-consuming. Do they cut your pay if it takes too long?  Is it too much trouble?  Tough nuggies. That’s the job, to afford defendants their constitutional rights in the course of prosecution. If it’s too hard on you, find another line of work.

But when you shift the burden to “having defense counsel sign an acknowledgment of the ‘open file’ discovery,” because those defense counsel can’t be trusted and may lie, lie, lie to claim you failed to provide Brady, it’s just passive-aggressiveness showing through.

We’re happy to acknowledge open file discovery, but that doesn’t mean we’ve gotten everything. It means we’ve gotten whatever you gave us. We have no clue whether it’s everything. We have no clue what your agents hid from you, or you hid from us, or was filed in the round rather than the square.

Sure, some defense lawyers aren’t honest, just like some prosecutors. But then again, we aren’t hypocrites about it. We say something. When is the last time you outed one of your own?

By the way, does Judge Kozinski believe that there is an “epidemic” of IAC?  Based upon my reading of Ninth Circuit cases (especially habeas cases), many cases (especially the penalty phase of capital cases) are “infected” by IAC, at least according to that court.  What does Judge Kozinski believe is at the root of this problem?  Oh, let me guess, poorly paid and overworked federal and state public defenders and lazy and indifferent private counsel?

When confronted with their wrongdoing, third-graders response with “well, you’re ugly too.”  Ineffective assistance of counsel is a huge problem, but that in no way relieves you of your duty to adhere to the law. That our baby is ugly doesn’t make yours any less ugly.  And nice job of your projecting your prejudice onto Judge Kozinski, because lawyers getting a government paycheck are a better breed than defense counsel, until they leave the government teat, whereupon their whole world changes as soon as they need to earn a living as private counsel.

When it comes to Brady and IAC/Strickland claims, it is easy to have 20/20 hindsight while sitting on a big leather seat in San Francisco a decade or more after the courtroom “battle” has been fought.  It is an entirely different thing for government prosecutors and public defenders (especially at the state level) to juggle dozens and dozens of cases, in overcrowded, understaffed, courtrooms — cases that were investigated by officers who are faced with ever increasing caseloads because of, among other things, “realignment” programs (such as that in California) that are releasing more and more hardened criminals back on to the streets to victimize society.

So federal prosecutors are so horribly overworked, like state PDs(!?!).  On what planet? We live in incarceration nation, because Americans are all “hardened criminals” being warehoused in with three times the intended number of human beings to a cell?  And yet, they should all be imprisoned forever so that these “hardened criminals” don’t go back to the streets “to victimize society”?  This must be a nation of the worst people ever, since there are so many more than anywhere else requiring prosecution and imprisonment. Or else, you’re just a flaming nutjob who spends too much time listening to neo-con talk radio.

Judge Kozinski, next time you are about to use an overly broad brush of your pen to defame the work of less “interesting” members of America’s crumbling criminal justice system, please take a moment, get out of your lavish courtroom, and walk in their shoes.

As I recall, the 9th Circuit doesn’t have its own “lavish courtroom,” but travels the circuit. On the other hand, if you want to whine about someone being defamed, what about the defendants who are tarred as criminals because some prosecutor buried the Brady that would have proved their innocence?  When you walk in their shoes, let us know.

This may be the single most disingenuous, whiny, irresponsible and infantile screed I’ve ever seen coming from someone who gets a government paycheck every two weeks.  Aw, poor, maligned prosecutor. Did the big bad judge in his lavish office say something that hurt your feelings?  How very sad.  At least you get to go to the bar for happy hour with your buddies afterward to commiserate instead of spending the next 20 years in prison for some prosecutor’s deceit.  I almost shed a tear for you. Almost.

8 thoughts on “Pity the Poor Prosecutor

  1. AP

    I won’t almost shed a tear for Paul. Disclosure, as we call it up here in the north, is — and should be — straightforward. Whatever the prosecution has, the defence gets. Not complicated. And when you work as a federal prosecutor, as I did, you don’t spend hours standing over a photocopier making copies of the file, that’s what assistants are for. So this extra work he refers to escapes me. I don’t understand this complex process Paul speaks of involving conferences and sit downs with defence counsel. Here’s how disclosure works:

    1. Make a copy of the file.
    2. Give that copy to defence counsel.

    This isn’t rocket science.

    Paul doesn’t get to complain about being overworked and overly burdened when the US government deposits into his bank account a lovely, annually adjusted for inflation, paycheque every two weeks. Comparing earning your living as a defence lawyer and being a salaried federal prosecutor is a non-starter. To quote Jules form Pulp Fiction, “they ain’t even the same motherfuckin’ sport”.

    I worked with guys like Paul when I was a federal prosecutor; they annoyed the shit out of me then as much they do now.

    1. Marc R


      How north were you? I wish I was in your jurisdiction. As a matter of course, did you copy the file when counsel noticed an appearance or was it a routine reply for discovery?

      1. AP

        North enough that we call it Canada.

        I don’t want to step on Scott’s toes here and use his bandwidth as a primer on Canadian disclosure law but fundamentally the Supreme Court of Canada held that the prosecution must disclose all relevant information to the defence whether the Crown intents to introduce it as evidence. That applies everywhere in the country.

        Usually what happens at a first appearance disclosure is provided to counsel or the accused and there’s nothing to sign. As counsel you review the material and then if anything is missing you notify the prosecution with what you want. Of course disagreements occur between the Crown and defence as to what is disclosable and that can be litigated in a pre-trial motion. The obligation to disclose is ongoing and it doesn’t end with the first appearance. Most importantly, the duty is on the Crown to disclose not for defence counsel to beg.

        One thing you will get routinely for example is police officer’s notes which come in handy for cross-examination purposes.

        The law is more or less settled up here that disclosure is essential to the accused to make full answer and defence.

          1. AP

            I think it’s more self serve, but they give you give you an instruction sheet … no wait that’s Sweden. Oh well, it’s all the same over there anyways.

          2. Lurker

            Did you really ask? I’ve tried to limit commenting on that line, because it contributes little to extol the virtues of a Nordic-type civil law system.

            In Finland, the “pre-investigation” is done by the police, unless there is a very extraordinary reason to have a prosecutor as the head of the investigation. (All police crime investigations are headed by the prosecutor, and if the president, a minister or a supreme court justice is being investigated for the crimes in office, the investigation team is headed by the Chairman of the Constitutional Committee of the Parliament or by the Prosecutor of the Realm, depending on who has initiated the investigation.) At the end of the “pre-investigation”, the police submits the “pre-investigation protocol” to the prosecutor and all defendants and plaintiffs of the case for comment.

            The pre-investigation protocol includes the complete file of the case:
            * interrogation protocols (and recordings)
            * memoranda on all police actions taken, written immediately after the action (e.g. search memoranda, wire tapping memoranda, technical investigation memoranda), with all that has been noticed by the police, with all photos, recordings, documents and other material
            * list of all material that has not been included, if it has been considered immaterial by the police

            The defence counsels and the plaintiff counsels have now the opportunity to issue their final statements on the pre-investigation. Then, the prosecution starts to ponder what charges are appropriate, if any. I am not quite sure whether the defence is asked to sign a receipt for the delivery of the material or not. At least the law does not require it.

            If the prosecution makes the decision that a crime has occurred but the charges are not in the interest of justice, the defence may compel the prosecutor to raise charges, so that the defendant can clear his name and avoid the non-judicial consequences of non-prosecution decision. Similarly, if the prosecutor declines to prosecute, the plaintiffs have now the opportunity to raise a private prosecution. There exists also a third option: the prosecutor may return the case to the police for additional investigation. (This may be done by the court even after the trial starts, if the court considers that the case is insufficiently investigated by the police or new evidence surfaces.)

            The pre-investigation protocol becomes public information after the prosecutor has either declined to prosecute or has read the charges in an open court.

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