I have to say that while I think in general his opinions are way off, I admire federal judge Richard Kopf’s candor in not only writing his own blog, but commenting over at SHG‘s. In repsonse to a post about lying cops who got caught, the judge says:
If those cops aren’t charged with a felony, then the judge involved, and those who share the bench with him or her, should go ape shit and publicly so. I mean throw a real shit storm. Not just some stupid little contempt citation, but a significant felony charge or even a felony conspiracy charge in federal court about violating the civil rights of the accused. And, when convicted, the cops should go to prison. Not probation. Hard time.
He finishes with a fairly necessary disclaimer:
But what the hell do I know.
Here’s the thing. The proposed solution is not just unrealistic in the vast majority of cases – that is, the judge can’t prosecute cops, only the same people (prosecutors) who rely on the cops for their very “careers” can, and of course they don’t want to – but juries don’t convict cops. That’s been demonstrated over and over.
So the bottom line is that lying cops are extremely unlikely to ever be prosecuted and when they are they are very unlikely to be convicted.
What about civil remedies, like actions under 42 U.S.C. 1983?
The big problem there is not prosecutors or juries, but judges, and the judge-made laws of immunity, and judges’ general hostility to civil lawsuits because, frankly, they have little appreciation for the difficulty of bringing them successfully, fail to see how socially important they are, and regard the injured parties and their lawyers as lesser status litigants who should not be permitted to waste the court’s time. Also on the moral level, to most judges – and I suspect Judge Kopf is in the group – civil lawsuits seeking money damages are just about lawyers’ greed and nothing else.
But here’s what happens in reality, when the civil remedies are robustly available: after a few large verdicts the payor, which is to say the people or entity stuck with the bill – either the State, a municipality, an insurance company, or probably just as often a combination of the three – get the message and begin to change the culture from the inside, through truly effective internal disciplinary measures, truly effective because now money and funding are at stake so there’s a real motive to change on the part of those in authority where the change needs to take place. And in addition to this salutary effect, the victims of official wrongdoing are compensated and the lawyers who represented them are, too.
What’s not to like?
Nevertheless, the fact is that the federal judiciary has been unremittingly hostile to section 1983 actions brought against police and prosecutors for decades. They crafted made up doctrines about how police and prosecutors were “immune” from such suits, enabling them to dismiss cases without letting them ever see a trial or a jury .
But one gets the sense that immunity doctrines are just a rationale. The real problem is that judges see plaintiffs as the money grubbing rabble, and defendants as the upright authorities who have to be responsible and shouldn’t be hit with large verdicts in favor of lesser status people and their lawyers.
Of course, inasmuch as large verdicts are a necessary step towards real reform, this – the perspective of judges – is a real problem. It would take a lot to convince Judge Kopf of that, or any other judge, I think. Yet this whole scenario might be one important reason that the criminal justice system has deteriorated to the extent it already has. In fact we here at Lawyers on Strike believe it is an important reason, but Judge Kopf and his brethren aren’t listening, and haven’t been for a long time.