February 2, 2015

A Further Epidemic of Prosecutorial Misconduct

It was not that long ago that Judge Alex Kozinski, of the U.S. Court of Appeals for the Ninth Circuit, opined that there was an "epidemic" of Brady violations (referring to a failure by prosecutors to turn over exculpatory evidence), and suggested that this was a systemic problem that was further enabled by the chronic failure of judges to punish the offending prosecutors.

IPicking up where he had left off, Judge Kozinski, joined by two colleagues in an argument in Baca v. Adams a few weeks ago, excoriated California state prosecutors for providing false testimony in a murder for hire case. As Judge Kozinski stated, the prosecutors "got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way."

The L.A. Times has an excellent article on the case and the Court's comments. The video of the argument follows below. The state's attorney, Kevin Vienna, begins his argument 15:55 minutes into the video. The slow, steady attack begins almost immediately, and picks up steam steadily.

Seeking to hold prosecutors liable for such abuses is probably a lost cause, but these events underscore both the prevalence of this misconduct, and the lack of consequences for the guilty parties. As ought to be self-evident, when prosecutors are allowed to bend constitutional laws and prohibitions in the pursuit of convictions, it inevitably results in the conviction and imprisonment of innocent people, and substantial and lasting injury to the basic principles of fairness and due process that we like to pretend underlie our criminal justice system.

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