9th Circuit Judge Alex Kozinski

In a law review article entitled Criminal Law 2.0 that was published in the Georgetown Law Journal in 2015, Judge Kozinski challenges several widely held beliefs and myths about our justice system and suggests that there is reason to doubt the public's confidence in the fairness of our criminal justice system.

The United States has the highest incarceration rate of any country in the world. Kozinski points out that, as of 2015, there have been 1576 exonerations since 1989. There were 125 exonerations in 2014, which is the highest number of exonerations in a year in the history of our country. Considering that most of those who are in prison do not have the resources, luck, or opportunity to have an attorney dedicated to unearthing potential evidence of innocence, there must be more. Far more. How is it that we still remain so confident that our system in the best?

The Twelve Myths of Fairness in the American Criminal Justice System:

  1. Eyewitnesses are highly reliable.
  2. Fingerprint evidence is foolproof.
  3. Other types of forensic evidence are scientifically proven and therefore infallible.
  4. DNA evidence is infallible.
  5. Human memories are reliable.
  6. Confessions are infallible because innocent people never confess.
  7. Juries follow instructions.
  8. Prosecutors play fair.
  9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
  10. Police are objective in their investigations.
  11. Guilty pleas are conclusive of guilt.
  12. Long sentences deter crime.

How can we fix it? Fortunately, Judge Kozinski doesn't just whine and complain and express his disdain for all those that don't agree with him. He seeks to solve the problems he sees and suggests a number of ways to get started. His approach involves juries, prosecutors, judges, and changing the perspective of the American population as a whole. 

Here is what he suggests in terms of juries:

  1. Give jurors a written copy of jury instructions.*
  2. Allow jurors to take notes during trial* and provide them with a full transcript.
  3. Allow jurors to discuss the case while the trial is ongoing.
  4. Allow jurors to ask questions during trial.*
  5. Tell jurors up front what's at stake in the case (i.e., what punishment a defendant may face if they convict)
  6. Give jurors a say in sentencing.

* Some jurisdictions employ some of these methods. I've put an asterisk next to the suggestions that are already in effect in Maricopa County. 

Judge Kozinski writes that he believes prosecutors are in a position to effect the most change in creating a more just system. He provides an anecdote from his own personal experience presiding over the appeal of Debra Milke who was sentenced to death in Maricopa County (starting on page xxiv in his article linked below). The Ninth Circuit vacated Milke's conviction and sent the case back to Arizona for a retrial after she had spent 23 years on death row because prosecutors at the Maricopa County Attorney's Office withheld damning information about the detective who testified she had confessed to him. The information was never offered up by prosecutors - it was discovered by a team of defense attorneys and investigators who waded through years of prosecutions in which the detective had testified. The Arizona Court of Appeals made sure a retrial never happened and expressed resolute disapproval for the "flagrant denial of due process," calling the prosecutorial misconduct in the case "a severe stain on the Arizona justice system." He proposes the following starting points for remedying deficiencies that exist in current prosecutorial agencies:

  1. Require open file discovery
  2. Adopt standardized, rigorous procedures for dealing with the government's disclosure obligations.**
  3. Adopt standardized, rigorous procedures for eyewitness identification.
  4. Video record all suspect interrogations.
  5. impose strict limits on the use of jailhouse informants. 
  6. Adopt rigorous, uniform prosecutors for certifying expert witnesses and preserving the integrity of the testing process. 
  7. Keep adding conviction integrity units [within prosecuting agencies]
  8. Establish independent prosecutorial integrity units

** The Maricopa County Attorney's Office recently opposed a change to the Arizona Rules of Criminal Procedure that would require prosecutors to avow to the court that they had disclosed all material which would tend to show a defendant's innocence. They were successful in their opposition and the amendment to the rules was never made. 

As for the role that judges play, Kozinski believes the following policies would promote more fairness in the justice system:

  1. Enter Brady*** compliance orders in every case.
  2. Engage in a Brady colliloquy
  3. Adopt local rules that require the government to comply with its discovery obligations without the need for motions by the defense.*
  4. Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert**** showing.
  5. When prosecutors misbehave, don't keep it a secret.

* Although the rules in Arizona do technically require this for, with the exception of a select few types of discovery, it is a rare occasion indeed that a prosecutor in Maricopa County discloses everything they are required to without a request from the defense attorney and, many times, an order from the judge. 

*** Brady is a U.S. Supreme Court case that stands for the rule that prosecutors are required to turn over any material or information which would tend to negate a defendant's guilt or lessen his or her culpability for the crime charged. 

**** Daubert is the case that governs the admissibility of expert testimony. The purpose of Daubert is to ensure that experts testify based on valid and reliable research rather than hocus pocus.

Kozinski also proposes the following changes for the justice system as a whole:

  1. Abandon judicial elections.
  2. Abrogate absolute prosecutorial immunity.
  3. Repeal AEDPA 2254(d)*****
  4. Treat prosecutorial misconduct as a civil rights violation.
  5. Give criminal defendants the choice of a jury or bench trial.
  6. Conduct in depth studies of exonerations.
  7. Repeal three felonies a day for three years.******

***** AEDPA is a federal statute that narrows the grounds federal judges can look at after an appeal has gone through the state courts and limits the ability of federal judges to vacate or overturn convictions and decisions of state courts where there has been injustice. 

****** Here, Kozinski is talking about the reality that prosecutors can l lijshfoevirtually always find a law to support charging someone at any given moment. 

Kozinski didn't disappoint in concluding the law review article with this:


'Nuff said.

If you are still reading and want to read the full text of Kozinski's masterful law review article, click here: 9a990f08f3f006558eaa03ccc440d3078f5899b3426ec47aaedb89c606caeae7