Prosecutorial misconduct: a rampant and epidemic lie.

• Author: Marquis, Joshua

AROUND NEW YEAR'S the Los Angeles Times (LAT) and then the New York Times (NYT) published editorials claiming prosecutorial misconduct was "epidemic" (LAT) and "rampant" (NYT). Their sole source for the claim is the extremely quirky and uber-libertarian 9th U.S. Circuit Court of Appeals Judge Alex Kozinski. I follow the usually anti-law-enforcement 9th Circuit closely, have had dinner with Kozinski, and am published with him in a collection of essays about capital punishment, "Debating the Death Penalty" (Oxford University Press, 2005).

In the Olsen case, Kozinski and a couple other 9th Circuit judges on the ultra-left political fringe bitterly dissented over the 9th Circuit's majority refusal to agree with the defendant's claim that a federal prosecutor's actions during the trial amounted to "egregious misconduct" and therefore his conviction should be thrown out.

When a judge screws up, a case is merely reversed. When a defense attorney doesn't do her job, it's called ineffective assistance of counsel. Even the American Bar Association (overwhelmingly defense attorneys) has voted to start differentiating between genuine, malicious (and extremely rare) prosecutorial misconduct, and simply prosecutorial error. That's how it should be.

I drafted an Op-Ed in response to the editorials, but was delayed in submitting them and then it became too late for the papers to run it. It received a good response from my colleagues at the National District Attorneys Association. I append it just below, followed by the LA Times and NY Times editorials.

Draft Op-Ed in Response to LA Times and NY Times on "rampant" and "epidemic" prosecutorial misconduct.

THE SUDDEN CLAMOR about "rampant prosecutorial misconduct" is the result of a minority dissent from the usually extremely pro-defendant 9th U.S. Circuit Court of Appeals in the Olsen case. Judge Alez Kozinski, the controversial uber-libertarian chief judge, drafted a minority opinion in which he was joined by former chief judge Stephen Reinhardt, generally identified with the much more defense-oriented wing. While the rarified air of the editorial board may have succumbed to Kozinski's turgid prose, a reading of the majority opinion (the one that matters) yields a very different result.

Kozinski may be something of a legal "wunderkind," being appointed to the federal bench in his early 30s. But he has never served as a trial lawyer, let alone a prosecutor. To damn the entire profession of prosecutors in America based on the tiny number reviewed by his panel of a federal appeals court would be like ascertaining judicial integrity based on the recent sentencing habits of judges in Alabama and Montana, who gave what amounted to a free pass to convicted child molesters. Fortunately, those judges are the exceptions, not the rule.

The Olsen case was conducted in...