So now you've had the chance to read Chief Judge Kozinski's dissent. Whatchathink?
I'm less interested in its merit -- though that's admittedly intriguing -- than what it says about those who wrote or joined it. It is, as I said, a powerful statement. With truly a "take no prisoners" approach.
For that reason, it's perhaps not surprising that it obtains the express concurrence of some other "true believers" on the Ninth Circuit. Judges who truly fear the power of the state that can be marshaled in the support of criminal charges. Judge Pregerson. Judge Reinhardt. Even Judge Thomas. Plus Judge Watford, a relative newcomer. That the latter joins Judge Kozinski's powerful expression may say something about what we'll see from him going forward.
By contrast, lots of other judges -- even those who might well be sympathetic to Judge Kozinski's views -- don't expressly join the thing. It's too strong. Too outraged. Too "in your face". That says a lot about those judges as well.
It's a matter of style. Though it's simultaneously more than that.
Which got me thinking a little bit about the underlying merits. Not whether there was a Brady violation here, or whether the error (if any) was harmless. But rather about a related point that Judge Kozinski makes. A section of the dissent that argues that prosecutors have powerful reasons to withhold even evidence that they know might be exculpatory because (1) they're rarely caught, (2) even when they are, there's often not any consequence, because the Court of Appeals affirms based upon the alleged "overwhelming" evidence against the defendant (i.e., harmless error), and (3) that even if (1) and (2) aren't true, the worst that transpires is a retrial at which the evidence gets disclosed. No biggie.
I think (1) is clearly true. Number (2) is also demonstrably the case. Though my sense is that prosecutors are probably less likely to withhold exculpatory evidence if guilt really is crystal clear, since in those cases, it's not worth it -- reputationally, results-wise, or otherwise -- to withhold evidence, since the defendant is likely to be convicted either way. And number (3) is surely the case. Though one might well add that any conviction-preferring prosecutor would nonetheless not take absolute solace in (3) since s/he'd be running the (admittedly low) risk of an acquittal at the first trial, so it's not like "jumping to a retrial on remand" is the preferred approach.
The net result is that Judge Kozinski is probably correct when he says that the institutional constraints that reinforce the Brady rule are pretty darn weak. For this reason, he -- and others -- might perhaps have very legitimate concerns that the judiciary needs to keep a very sharp eye out in this area, as it's the only effective bulwark against potential prosecutorial tyranny (or at least injustice).
But it struck me that there's one other substantial thing at work here as well. Even apart from normative morality (and potential prosecutorial desire to follow the law). Which is culture.
The judiciary (amongst others) constantly hammers away into everyone's head that while prosecutors are at liberty to use hard blows, they must employ fair ones. Don't convict someone you know's innocent. Don't break the law. Don't suppress evidence. Stuff like that. That's an inherent part of having prosecutorial power. The restraints -- even if they're only internal and/or cultural -- that come alongside this power.
I have a keen sense, however, that Judge Kozinski (inter alia) doesn't think that's a very effective limitation.
There are some reasons for that. Related to background, temperament, ideology, etc. All of which I want to put aside for now.
Rather, what struck me is how there probably isn't, in fact, as nearly an effective cultural constraint against state-sponsored Brady violations as we'd hope (or expect) there to be. We'd want prosecutors to show the utmost respect for the law. To play their roles aggressively, but with inscrutable fairness. To never -- and I mean, never -- knowingly depart from the law. To not do those sorts of things that, for example, seem fairly clearly to have been done here; for example, not calling someone important back for months (or at all) for fear they'd be telling you about some exculpatory evidence that you'd then have to reveal. Despite the fact that -- and here, Judge Kozinski's absolutely right -- if that same caller was expected to have evidence that would be useful against the defendant, you could bet your life on the fact that the prosecutor would call her back repeatedly. Within an hour. Or less.
I can imagine a prosecutor's office that was totally, scrupulously ethical. I'm confident that there are, in fact, prosecutors who were (and are) entirely that. I know some of them personally.
But I'm also exceptionally confident that this is not a uniform rule. That there are plenty of offices out there with a culture that's more "aggressive" and adversarial. Where hard blows are not only fully expected, but if some of them end up being below the belt, well, that's the nature of the beast. No big deal. At least you hit hard. That's the important thing.
Why is that? Why is the cultural practice so far (at least in individual cases) from what we'd all both want it to be as well as systemically proclaim it is?
Lots of this stems, I think, from the view of criminals as "others". I can't tell you how many officers, agents and even prosecutors have expressly used the word "scum" to me when referring not only to individual offenders, but to everyone convicted (or even arrested) for an offense as a group. That's pretty informative. Particularly when, as with me, they're using this language with someone whom they've just met or who they have no reason (one way or the other) to think shares this view. If that's what they say in public, imagine what they think in private. Or in a self-selected group of those like-minded.
But I think it also has a lot to do with culture and self-selection. People aren't chosen to go to law school randomly. They elect to do so. Those people tend to like to argue. To be aggressive. To have -- for lack of a better phrase -- a "win/lose" mentality. Giving the other side evidence makes it more likely for them to win and hence for me to lose. That's bad. So I'm not going to do it. Unless I'm forced to.
That's true on the civil side, and it's undoubtedly true on the criminal side as well. Regardless of whatever mantra we try to pound into the heads of individual prosecutors.
Plus, whatever mantra you chant, results speak for themselves. Prosecutors are expected to win. A fact only enhanced by the reality that they usually do. Winners get respect. Winners get promoted. Sure, there may be truly "ethical" prosecutors in the office who are appreciated and liked. Maybe who even rise to the top. But when you're expected to win, and see winning as almost uniformly entailing justice (for the system, for the victim, and for society as a whole), it shouldn't be surprising if we found that prosecutors may not take to heart our sincere normative claims about turning over evidence to the other side. We grow up in a culture that keenly understands winning and losing. More subtle preferences, like those associated with what we call "justice", are precisely that. More subtle. Hence harder to inculcate. However important.
I'm not sure that, in the end, I'm as passionate as Judge Kozinski. Is he right about the danger of the state? Absolutely. Is he right about lots of the incentives? I think so. Strongly. Indeed, the more I think about it, the more correct he appears to be.
Though there's another side as well. A side that doesn't negate the wisdom of Judge Kozinski's opinion. But that may nonetheless temper it. That I see as well.
But I still think it's worth thinking a lot about the culture of prosecutorial offices, as well as others in the law enforcement community, and how that works alongside the doctrinal principles the judiciary develops and applies. Judge Kozinski's opinion is a darn good start in that regard. Though I think there's lots more to be said, and thought, on this topic as well.