Certain rules apply in a criminal trial. The rules are well established
and have been in place for a long time. They really aren't open to
dispute. However, some prosecutors seem to view a criminal trial much
like a professional wrestling match - complete with biting, eye gouging,
and metal folding chairs smashing into skulls. Many have adopted the attitude
that as long as they win, anything goes.
Fortunately, many Federal Judges disagree, and believe that a criminal
trial must be conducted within the framework which the Constitution and
Congress have provided. Three judges on the United States 9th Circuit
Court of Appeals heard arguments last month in a case in which lower courts
had determined that prosecutors had presented false evidence in the criminal trial.
Amazingly, in spite of these findings, the California Attorney General's
Office decided to defend the conviction on appeal. That's when things
got ugly in the normally serene Pasadena, California, 9th Circuit Court
of Appeals courtroom. Chief Judge Alex Kozinski started things by immediately
asking the Deputy Attorney General arguing the case if his boss (California
Attorney General, Kamala D. Harris), actually wanted to defend a conviction
"obtained by lying prosecutors?" Kozinski continued his attack
by warning that if the Attorney General continued to defend a case in
which it had been established that the prosecutors had presented false
testimony in the criminal trial, that the opinion issued by the 9th Circuit
would be ugly.
Furthermore, Kozinski demanded to know why the prosecutor and a critical
witness in the case had not been criminally charged with perjury. All
three judges expressed anger that state court judges were aware of prosecutorial
misconduct and doing nothing to curb the problem. Kozinski opined that
prosecutors "got caught this time but they are going to keep doing
it because they have state judges who are willing to look the other way."
The judge’s questions in this case, and commentary by other federal
judges from other recent cases where prosecutorial misconduct has tainted
the criminal trial process, clearly indicate that many on the 9th Circuit
have lost patience with the California courts. State judges have a duty
to ensure that each criminal trial is conducted in a fair and legal manner.
That duty includes the obligation to refer errant lawyers (including prosecutors
- something that is virtually unheard of) to the state bar for discipline.
Judge Kim Wardlaw hit the nail on the head when she stated her belief
that the reason California state courts are upholding obviously tainted
verdicts is because state judges in California are elected by the voters
and must cater to them as a constituency. Thus articulating the widespread
opinion that because many voters are incredibly pro-law enforcement, they
are therefore more outraged by reversals, than they are by prosecutorial
dirty tricks and illegal criminal trial tactics.
Inherent in this system is a never-ending conflict of interest where an
elected judge is constantly forced to either follow the law in an even-handed
manner, or remain attractive to the public by doing the popular thing
and always ruling in favor of law enforcement.