Interview with Judge Jed Rakoff

• Author: Ashish Joshi
• Position: The author is with Joshi: Attorneys + Counselors, Ann Arbor, Michigan, and is a senior editor of Litigation.
• Pages: 15-21

Published in Litigation, Volume 46, Number 1, Fall 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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Interview with

Judge Jed Rakoff

ASHISH JOSHI

The author is with Joshi: Attorneys + Counselors, Ann Arbor, Michigan, and is a senior editor of Litigation.

Judge Jed Rakoff has been a federal judge in

the Southern District of New York since 1996.

Before that, he was both a federal prosecutor

and a white-collar criminal defense lawyer.

That past experience has informed his time

on the bench, where he has presided over a

number of cases involving novel issues about

criminal justice, our financial system, or, as

it sometimes happens, both.

Judge Rakoff also teaches law at Columbia

and trains other federal judges on the latest

developments in forensic science in the courtroom. And he man-

ages to still find the time to regularly contribute to the New York

Review of Books, writing on such issues as access to the courts,

the death penalty, mass incarcerations, and neuroscience.

The following are excerpts from an interview of Judge Rakoff

by Ashish Joshi, which took place at the judge’s chambers in

downtown Manhattan.

Ashish Joshi: Judge, you have written and presented a lot on

the topic of wrongful convictions. How big is the problem? As a

federal judge, what do you see?

Judge Rakoff: The only accurate answer is no one really

knows. We have some very strong indications. The Innocence

Project, for example, by now has exonerated over 350 people.

Those were people who were convicted of very serious crimes,

usually murder or rape. Perhaps 10 percent of them pleaded guilty

even though they were actually innocent. On

appeal, their convictions were affirmed, of-

ten by courts saying that the proof was not

just beyond a reasonable doubt but was over-

whelming. Yet, in fact, they were innocent.

There is also something called the National

Registry of Exonerations, which is a broader

base that includes state and federal exon-

erations for the last 20 years or so. I think

they’re now up to something like 1,800. So

that’s a lot of people.

AJ: Did you find the problem to be systematic, systemic, or

more prevalent in particular jurisdictions?

JR: While there were certain jurisdictions where it was more

likely to happen than others, it’s primarily a function of systemic

problems, some of which are not easily cured. For example, eye-

witness identification. There are about 80,000 cases a year in

the United States—state and federal—in which eyewitness iden-

tification testimony plays a major role. We now know, in a way

that we didn’t know even 20 or 30 years ago, that often those

identifications are inaccurate, even as many of them are accurate.

Distinguishing between the two is not very easy because the in-

accuracy often derives from subtle differences in the makeup of

human beings, as opposed to improper police techniques, bad

lighting, or things like that, that a layperson can recognize.

So the studies really have advanced our knowledge about how

Illustration by D aniel Hertzberg