New boss, same as the old boss? (UPDATED)

So, Eric Holder has been saying all the right things about criminal discovery issues and has even issued guidelines to line AUSAs about more liberal disclosure, but there is increased grumbling amongst defense lawyers and judges that nothing has really changed (and in many cases, has gotten worse). In fact, DOJ is lobbying hard against changing Rule 16 to allow for more liberal disclosure of Brady/Giglio material.

I don't typically blog about my cases, but here's my most recent experience with this issue (without naming names): I was in court last week where DOJ was taking the position that even though their two critical witnesses lied to the grand jury, they did not need to disclose the grand jury testimony because Jencks trumped Brady. I kid you not. Needless to say, the district judge disagreed. But is this really the sorts of positions that DOJ should be taking?

Here's an op-ed by Jim E. Lavine and Ellen S. Podgor about DOJ not practicing what it preaches:

The practice of prosecutors failing to abide by constitutional and ethical
standards in providing important materials to the defense is not unique to
these cases, but it is particularly problematic to see when prosecutors are
then turning around and charging crimes against others who allegedly do the
same thing -- fail to give the other side materials they believe are
important to their investigation.

That’s exactly what they did when they decided to indict a former vice-president and associate general counsel of Glaxo-Smith Kline. Prosecutors charged her with crimes that included obstruction of justice and concealment of documents from an FDA inquiry, arguing that the counsel failed to provide materials to the federal agency.

The problem here is clear. The three new policies of the Department of
Justice are all internally controlled, provide for no external monitoring
and allow each local United States Attorneys’ Office to set up their own
discovery policies for their individual office. There is no real
oversight.

In fact, the Department of Justice has opposed making any rule changes that
would include some outside scrutiny. How many chances should they get?


Update -- Here is the proposed amendment to Rule 16 that DOJ opposes. Someone explain to me why this is controversial:

Rule 16. Discovery and Inspection
(a) GOVERNMENT’S DISCLOSURE.
(1) INFORMATION SUBJECT TO DISCLOSURE.
* * * *
(H) Exculpatory or Impeaching Information. Upon a defendant’s request, the government
must make available all information that is known to the attorney for the government or agents of law enforcement involved in the investigation of the case that is either exculpatory or impeaching. The court may not order disclosure of impeachment information earlier than 14 days before trial.

Are criminal trials fair?

Judge Kozinski says no way in this really interesting read from the Georgetown Annual Review of Criminal Procedure.  His main points, as summarized by Business Insider:

1. Eyewitnesses are highly reliable

Eyewitnesses are highly unreliable, especially when the witness and perpetrator are of different races, or when witnesses are asked to recall a situation in which they were under the stress of violent crime or catastrophe, Kozinski writes. Mistaken eyewitness testimony was a factor in one-third of all wrongful conviction cases, according to his article.
Jed Rakoff, another well-known federal judge, made the same point in a Washington Post op-ed this year.

2. Fingerprint evidence is foolproof

Kozinski says prints left in the field are often smudged and incomplete — making them difficult to identify. He adds that when tested by more rigorous scientific methods, fingerprint examiners have a significant error rate.
The National Academies of Sciences has also said the work of fingerprint examiners can be flawed. 

3. Other types of forensic evidence are scientifically proven and therefore infallible

Aside from DNA evidence, Kozinski says what is true about fingerprint evidence is doubly true about bloodstain-pattern identification, foot- and tire-print identification, and ballistics.
"Some fields of forensic expertise are built on nothing but guesswork and false common sense," Kozinski writes. 
Recently, the Justice Department exposed major problems with microscopic hair testing in criminal cases. 

4. DNA evidence is infallible

Kozinski says the integrity of DNA evidence is often compromised during the collection, preservation, and testing process, and that DNA examiners are not always competent and honest.
As Mother Jones noted in April, "Real-life crime labs are a total mess."

5. Human memories are reliable

Kozinski, citing a study by cognitive psychologist Elizabeth Loftus, believes the mind not only distorts and embellishes memories, but that external factors affect how memories are recalled and described. 
In an interview with Slate, Loftus acknowledged that we're all capable of fabricating memories. 
"We all have memories that are malleable and susceptible to being contaminated or supplemented in some way," Loftus told Slate. 

6. Confessions are infallible because innocent people never confess

Kozinski has found that innocent people confess surprisingly often, due to a variety of factors including interrogation tactics, Stockholm syndrome, emotional or financial exhaustion, family considerations, and general feeble-mindedness. 
As The New Yorker has reported, police can also produce false confessions by using a certain interrogation technique. 

7. Juries follow instructions

Kozinski claims courts know very little of what juries do when they decide cases. Courts have no way of knowing whether juries follow instructions or even whether they understand them, according to Kozinski. 
"We have no convincing reason to believe that jury instructions in fact constrain jury behavior in all or even most cases," Kozinski writes.

8. Prosecutors play fair

Kozinski believes prosecutors often fail to turn over evidence that could be favorable to the defense, known as exculpatory evidence. In a case called Brady v. Maryland, the Supreme Court ruled that prosecutors have to turn over that evidence. But Kozinski claims there's an "epidemic" of Brady violations in America. 

9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt

In reality, Kozinski writes, the defendant is often at a disadvantage because prosecutors have the chance to argue their case before the defense during a trial.
That's troubling because of psychological evidence showing that "whoever makes the first assertion about something has a large advantage over everyone who denies it later," according to Kozinski.

10. Police are objective in their investigations

Kozinski says police have the opportunity to alter or remove evidence, influence witnesses, extract confessions, and more or less lead an investigation in such a way that they can stack the deck against somebody they believe should be convicted.
"There are countless documented cases where innocent people have spent decades behind bars because the police manipulated or concealed evidence," Kozinski writes. 

11. Guilty pleas are conclusive proof of guilt

Kozinski has found that when a defendant believes an outcome is highly uncertain or stacked against them, they might cave and enter a guilty plea to a lesser charge so that they can still salvage a part of their life.
Judge Jed Rakoff has also lamented the fact that 97% of federal criminal defendants plead guilty if their cases aren't dismissed. 

12. Long sentences deter crime

America has 716 prisoners for every 100,000 people — the most of any country in the world, Kozinski notes. America also has much longer sentences than other countries for comparable crimes. Kozinski points out that a burglary charge in the US warrants an average of 16 months in prison, compared with five months in Canada and seven months in England.
"As with much else in the law, the connection between punishment and deterrence remains mysterious," Kozinski writes. "We make our decisions based on faith."

Meantime, there are a bunch of criminal trials starting this summer, which are expected to last over a month.  One just started before Judge Martinez, so if you are looking for something for your interns to do... send them over to watch a federal trial!

"There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."

That's Ninth Circuit Chief Judge Kozinski dissenting from the denial of en banc review in U.S. v. Olsen.  He isn't happy with the panel:

"The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

Or the prosecutor:

"Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care."

Ho hum. 

At Judge Kopf's blog, he recommends having prosecutors turn over everything to the defense to make sure these complaints can't be lodged.  I've never heard a good response to this proposal.

Some other notes:

• Albert Lichy, Judge Huck's former law clerk, wrote an op-ed in the DBR, titled: DOJ's Shift in Corporate Prosecutions: Too Big to Ignore.  The conclusion:

A retreat of any degree from federal prosecutors' reliance on DPAs to resolve corporate criminal investigations would be utterly misguided. The risk of another Arthur Andersen-style collapse is much too high to justify any added measure of deterrence a criminal conviction offers. While many are quick to criticize the Justice Department for maintaining a de facto policy that some institutions are too big to jail or take to trial, few have offered a convincing argument for why the perceived benefit of a conviction outweighs its potential costs. Corporate defendants, unlike their individual counterparts, can't go to jail—however big or small. They don't suffer the same reputational harm as a branded criminal. Nor do they lose any fundamental constitutional rights. A conviction is purely symbolic. But in pursuing this symbolic gesture, prosecutors are needlessly creating the risk of emitting a systemic shock through the financial system—one that's too big to ignore.
The cautionary note Attorney General Eric Holder sounded in 2002 in arguing against the indictment of WorldCom is as appropriate today as it was then: "to ensure that even more innocent Americans are not harmed, prosecutors must not give in to the pressures of the day and feel compelled to indict more corporations simply because they can."

• Alyson Palmer is doing a great job covering the 11th Circuit appointment process.  Here are recent articles here and here covering how the Judge Rosenbaum may be confirmed quickly and who is being interviewed for the open Alabama seat (Judge Dubina).

One last thing -- Thanks again to everyone for their kind words and emails over the past week.  I really appreciate it.

What a week in the world of white collar criminal law (UPDATED)

Last week was white collar law overload. Bridgegate (convictions reversed by SCOTUS). Varsity Blues (motion to dismiss for prosecutorial misconduct denied). Michael Flynn (prosecutors move to dismiss). And more.

Some random thoughts about these cases:

1. Why does it take the Supreme Court (9-0) to continue to reverse fraud convictions. The government is clearly overreaching with these statutes and yet lower courts almost never dismiss.

2. Same with respect to lower courts and prosecutorial misconduct. They almost never dismiss on prosecutorial misconduct claims, so it was no surprise that the district judge did not dismiss the Lori Loughlin case. Why not? How will prosecutors ever get the point that they should not engage in such behavior. Maybe the Loughlin lawyers will now file a motion to dismiss based on Bridgegate. After all, if fraud requires obtaining money or property, then lying to gain college admission may not be enough for wire fraud.

3. There has been lots of criticism for the in the Flynn case. But let's take a step back for a second. Remember that Flynn had moved to vacate his plea because the new DC prosecutors had recently turned over Brady material that had yet to be disclosed. We should be applauding the prosecutors for doing that. (A big shout out to Michael Sherwin, the DC supervisory prosecutor who made sure that disclosure happened after previous prosecutors did not disclose). If the judge had vacated the plea and allowed Flynn to go to trial, would the critics have been happier if the government had gotten spanked at trial? This was a distinct possibility because the lead witness for the government was former agent Peter Strozk. Imagine that cross! Comey would likely have also been a witness... Anyway, let's hope this materiality standard explained by Barr in the Flynn dismissal memo is used across the board for criminal defendants. Wouldn't that be a good thing? Of course our justice system should not be politicized, but there is quite a bit to grab onto in that Flynn motion to dismiss.

4. Some have said that the Flynn judge should deny the motion to dismiss. That is a bad idea and would set a very bad precedent. The Department of Justice brought the case. It's their prerogative to drop the case. That's how the adversary system works. Judges do not dismiss criminal cases when the defense asks. Now they aren't going to dismiss when the prosecutor asks? Rule number 1: never dismiss cases. Rule number 2: when in doubt, see rule number 1.

UPDATE 5. Mary B. McCord, an acting assistant attorney general for national security at the Justice Department from 2016 to 2017, wrote this op-ed in the New York Times, called "Bill Barr Twisted My Words in Dropping the Flynn Case. Here’s the Truth." I have to laugh in reading her piece. She complains that the 302 of her interview is "an interesting read" with "colorful adjectives" that "twist[s] her words." Now that's rich. The criminal defense bar has always said that 302 reports summarizing interviews are wholly unreliable and that interviews should be recorded. Prosecutors and investigative agencies like the FBI and DEA refuse to record and judges let agents testify from these reports about their interviews. McCord worked at DOJ for decades. Under her watch, thousands of non-recorded interviews took place and prosecutions relied on 302 and other interview reports to convict people. Now that she is reading her own 302, she complains. Welcome to the defense bar, Ms. McCord.