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.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, iii (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf
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Many defendants have been convicted and spent countless years in prison based on evidence by arson experts who were later shown to be little better than witch doctors.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, v (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf, citing Paul Bieber, Anatomy of a Wrongful Arson Conviction, THE ARSON PROJECT, http://thearsonproject.org/charm/wp-content/uploads/2014/08/wrongful_convictions.pdf (since 1989, 29 exonerations have involved arson convictions).
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Given the malleability of human memory, it should come as no surprise that many wrongful convictions have been the result of faulty witness memories, often manipulated by the police or the prosecution.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, vii (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf
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Innocent people do confess with surprising regularity. Harsh interrogation tactics, a variant of Stockholm syndrome, the desire to end the ordeal, emotional and financial exhaustion, family considerations and the youth or feeble-mindedness of the suspect can result in remarkably detailed confessions that are later shown to be utterly false.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, vii (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf
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The Supreme Court has told us in no uncertain terms that a prosecutor’s duty is to do justice, not merely to obtain a conviction. It has also laid down some specific rules about how prosecutors, and the people who work for them, must behave—principal among them that the prosecution turn over to the defense exculpatory evidence in the possession of the prosecution and the police. There is reason to doubt that prosecutors comply with these obligations fully. The U.S. Justice Department, for example, takes the position that exculpatory evidence must be produced only if it is material. This puts prosecutors in the position of deciding whether tidbits that could be helpful to the defense are significant enough that a reviewing court will find it to be material, which runs contrary to the philosophy of the Brady/Giglio line of cases and increases the risk that highly exculpatory evidence will be suppressed. Beyond that, we have what I have described elsewhere as an “epidemic of Brady violations abroad in the land,”a phrase that has caused much controversy but brought about little change in the way prosecutors operate in the United States.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, viii-ix (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf
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Police investigators have vast discretion about what leads to pursue, which witnesses to interview, what forensic tests to conduct and countless other aspects of the investigation. Police also have a unique opportunity to manufacture or destroy evidence, influence witnesses, extract confessions and otherwise direct the investigation so as to stack the deck against people they believe should be convicted. And not just small-town police in Podunk or Timbuktu. Just the other day, “[t]he Justice Department and FBI formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all [of the 268] trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.” Do they offer a class at Quantico called “Fudging Your Results To Get A Conviction” or “Lying On The Stand 101”? How can you trust the professionalism and objectivity of police anywhere after an admission like that? There are countless documented cases where innocent people have spent decades behind bars because the police manipulated or concealed evidence, but two examples will suffice:
In 2013, Debra Milke was released after 23 years on Arizona’s death row based entirely on a supposed oral confession she had made to one Detective Saldate who was much later shown to be a serial liar. And then there is the case of Ricky Jackson, who spent 39 years behind bars based entirely on the eyewitness identification of a 12-year-old boy who saw the crime from a distance and failed to pick Jackson out of a lineup. At that point, “the officers began to feed him information: the number of assailants, the weapon used, the make and model of the getaway car.” 39 years!
For some victims of police misconduct, exoneration comes too late: Mark Collin Sodersten died in prison while maintaining his innocence. After his death, a California appellate court determined that Sodersten had been denied a fair trial because police had failed to turn over exculpatory witness tapes. It posthumously set aside the conviction, which no doubt reduced Sodersten’s time in purgatory.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, x-xi (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf
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Many people, including judges, take comfort in knowing that an overwhelming number of criminal cases are resolved by guilty plea rather than trial. Whatever imperfections there may be in the trial and criminal charging process, they believe, are washed away by the fact that the defendant ultimately consents to a conviction. But this fails to take into account the trend of bringing multiple counts for a single incident—thereby vastly increasing the risk of a life-shattering sentence in case of conviction—as well as the creativity of prosecutors in hatching up criminal cases where no crime exists and the overcriminalization of virtually every aspect of American life.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, xi (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf
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We can be reasonably confident that the system reaches the correct result in most cases, but that is not the test. Rather, we must start by asking how confident we are that every one of the 2.2 million people in prisons and jails across the country are in fact guilty. And if we can’t be sure, then what is an acceptable error rate? How many innocent lives and families are we willing to sacrifice in order to have a workable criminal justice system? If we put the acceptable error rate at 5 percent, this would mean something like 110,000 innocent people incarcerated across the country. A 1 percent error rate would mean 22,000 innocent people—more or less the population of Nogales, Arizona—wrongly imprisoned. These numbers may seem tolerable unless, of course, you, your friend or loved one draws the short straw.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, xiv (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf
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Crime rates here are roughly equivalent to Canada and in many categories lower than other countries. And the crime rate has been dropping in the United States, as in many other industrialized nations. Yet, U.S. sentences are vastly, shockingly longer than just about anywhere else in the world.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, xvii (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf
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“[A prosecutor] is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.” All prosecutors purport to operate just this way and I believe that most do. My direct experience is largely with federal prosecutors and, with a few exceptions, I have found them to be fair-minded, forthright and highly conscientious. But there are disturbing indications that a non-trivial number of prosecutors—and sometimes entire prosecutorial offices— engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.
Prosecutorial misconduct is a particularly difficult problem to deal with because so much of what prosecutors do is secret. If a prosecutor fails to disclose exculpatory evidence to the defense, who is to know? Or if a prosecutor delays disclosure of evidence helpful to the defense until the defendant has accepted an unfavorable plea bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they know to be liars, or if they acquiesce in a police scheme to create inculpatory evidence, it will take an extraordinary degree of luck and persistence to discover it—and in most cases it will never be discovered.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, xxii-xxiii (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf
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While most prosecutors are fair and honest, a legal environment that tolerates sharp prosecutorial practices gives important and undeserved career advantages to prosecutors who are willing to step over the line, tempting others to do the same.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, xxvi (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf
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Professor Tim Wu of Columbia Law School recounted a “darkly humorous game” played by Assistant U.S. Attorneys in the Southern District of New York:
[S]omeone would name a random celebrity—say, Mother Theresa or John Lennon. It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years). The trick and skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences.
A big reason prosecutors have so much leverage in plea negotiations is that there are many laws written in vague and sweeping language, inviting prosecutorial adventurism. It is thus difficult for individuals charged with a crime to know how to defend themselves and to gauge the likelihood of being acquitted.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, xliv (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf
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The list of lives and businesses ruined by baseless prosecutions is long. And, in the words of George Will, “as the mens rea requirement withers when the quantity and complexity of laws increase, the doctrine of ignorantia legis neminem excusat— ignorance of the law does not excuse—becomes problematic. The regulatory state is rendering unrealistic the presumption that a responsible citizen should be presumed to have knowledge of the law.” Repealing a thousand vague and over-reaching laws and replacing them with laws that are cast narrowly to punish morally reprehensible conduct and give fair notice as to what is criminal may not solve the problem altogether, but it would be a good start.
Kozinski, Alex. "Criminal Law 2.0" 44 GEO. L.J. ANN. REV. CRIM. PROC, xliv (2015). Accessed at http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf
This is a very important journal article. It's definitely worth reading in its entirety.
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