Too Basic?

When you’ve lost your moorings – as an individual, a society, a profession, an institution – settled principles of conduct can become unsettled.

Take the “issue” of prosecutorial inconsistency.  We delved into that here.  But not at great length.  We thought it too elementary.  Too basic.

Sometimes we have heard prosecutors refer to “the people’s right to a fair trial”.  We try to correct them, although it is generally considered impertinent for a mere lawyer to correct a prosecutor who is, in the eyes of the system that favors him, some kind of uber-lawyer.

The government doesn’t have “rights”.  It doesn’t need them – it has power.

But we digress.

Judge Kozinski of the 9th circuit has been around a while.  More recently he appears to have had some epiphanies about prosecutor conduct, because he certainly whistled a different tune 20 years ago.

Some of his musings on the subject of prosecutorial inconsistency in the case of Thompson v. Calderon, 120 F.3d 1045 (9th circuit, 1997):

To begin with, I do not agree with Judge Fletcher’s broad statement that “it is well established that when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime.” Fletcher op. at 1058. There is, in fact, a long line of cases that says, if only by way of dicta, that judicial estoppel will not apply against the government in criminal cases…That said, there is surely something troubling about having the same sovereign, particularly acting through the same prosecutor, urge upon two juries a conviction of both A and B, when it is clear that the crime was committed by either A or B. To begin with, it raises the suspicion that the prosecutor may have presented testimony he knows, or has reason to believe, is false. If that be the case, the breach in prosecutorial ethics consists of putting on the tainted testimony, not in pursuing the inconsistent verdicts…But it is impossible to make judgments about what the prosecutor knew or should have known at our level, as Judge Tashima points out. See Tashima concurrence at 1064; but cf. Fletcher op. at 1056 (finding prosecutor’s characterization of testimony “patently untrue”). Thus, if the petitioner makes a prima facie case that the prosecutor knowingly presented false evidence, the matter must be resolved at an evidentiary hearing…But, as Judge Kleinfeld points out, prosecutors are not omniscient. See Kleinfeld dissent at 1074-75. They may be confronted with witnesses who present mutually inconsistent versions of what happened, and there may be no way of knowing which version — if any — is true. Is the prosecutor then precluded from presenting either case to the jury? Must he pick one based on his intuition? I believe not. A prosecutor, like any other lawyer, is entitled to retain skepticism about the evidence he presents and trust the jury to make the right judgment. After all, the guarantee of due process encompasses a fair trial before a fair judge and jury; the right to a lawyer and to exclamatory evidence available to the prosecution; and the right not to have the prosecutor lie to the jury. But I cannot see that it encompasses the right to have a prosecutor who is convinced of the defendant’s guilt. We trust the adversary process, the good sense of jurors, the presumption of innocence and the prosecution’s heavy burden of proof to ensure a verdict that is fair to the defendant. If the system works as it should, A and B both may be acquitted, but in no event should more than one of them be convicted.

Once again, in none of all of this verbiage by Kozinski and his colleagues on the 9th circuit on the subject of prosecutorial inconsistency is Pyle v. Kansas even mentioned.


Anyway.  Let’s make a few points.

First, it is technically true that the breach of prosecutor ethics (and due process) is the deliberate use of false evidence or argument, not inconsistency per se.  But this is a meaningless quibble:  because of the inconsistency, it is absolutely certain that one or the other is false and that the prosecutor knows it.  The point of Pyle v. Kansas and the Mooney line of cases generally is that the government cannot be dishonest in its criminal prosecutions.  But how do you prove dishonesty?  Inconsistency is one way, and it leaves no question whatsoever.  It is not often you can be absolutely sure someone has been dishonest – but this is one of those times.

So.  Moving on.

Of course, as Judge Kozinski points out, there may be times when the prosecutor is confronted with conflicting accounts of this or that and so really has no firm idea of what happened or who is guilty of what, although someone is surely guilty of something.  Judge Kozinski asks if the prosecutor is precluded from presenting any case to a jury under such circumstances.

Seriously?  Of course he is.  Did a federal appeals court judge really ask that question?  WTF?

So does this mean a criminal defendant has a right to a prosecutor who is genuinely convinced he is guilty?  Judge Kozinski asks that question, too.

Well, let us ask the same question another way:  Is a criminal defendant entitled to face only such charges as are brought in good faith?

The question answers itself.

Why is this so?  Why does this have to be the rule?

Because the government has power, and doesn’t need or have “rights”.  Because, as the Judge Kozinski of 2015 – in contrast to the Judge Kozinski of 1997 – realizes:

They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich.  It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.

Just so.

In 1942 nobody had to spell any of this out in any detail.  For that reason, you have to give Pyle v. Kansas a careful reading, but if you do there’s no question what it says and what it means, and it disposes of Judge Kozinski’s entire 1997 discussion of prosecutorial inconsistency in the Thompson case, quoted above.

How big a problem was this shift in prosecutorial self concept?  We have run across a parable:  the case of Jack McChullough.

The terrible abduction and murder of a little girl in 1957.  Somehow, the case that couldn’t be prosecuted back then could be prosecuted decades later – in 2012 – resulting, of course, in a conviction.

An apparently  wrongful conviction that was overturned in 2016.

Our system’s reliability depends, at the very least, upon the honesty of prosecutors.  Without it, we’ve lost our moorings.


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