The Dirty Dozen


I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Alex Kozinski is a judge (and former chief judge) of the United States Court of Appeals for the Ninth Circuit. If a constitutional issue crops up in the Northern Mariana Islands, he’s your go-to guy. The fact that ten other state and territorial jurisdictions lie in his purview make his (and his twenty-eight colleagues’) impact of perhaps greater moment.

The fact that California is one of those states has prompted some critics to declaim something peculiar going on with that court.

Call me irresponsible, but I’ve always seen a particular charm in the peculiar. So, over the next little while, I’d like to examine some of this jurist’s views.

Not long ago Judge Kozinski examined some of the presumptions in our criminal justice system that, when confronted, blow a huge hole through which reasonable doubt may enter into our trials. There are twelve of them, which he outlined in a preface he wrote for the Georgetown Law Journal’s Annual Review of Criminal Procedure. Their titles are as Judge Kozinski presented them; the comments following are mine.

1. Eyewitnesses are highly reliable. This is the bedrock of trial testimony; everything else is circumstantial. But to a white man, every black man is Denzel Washington. In a crime involving a gun, is the victim looking at the gunman, or at the gun? In any high-stress event, are we Cool Hand Luke, or Barney Fife? Judge Kozinski says that more than a third of wrongful conviction cases involve mistaken eyewitness testimony.

2. Fingerprint evidence is foolproof. There are a lot of fools out there who have proven it otherwise. Prints residing in a national database and partial, blurry and stacked prints at a crime scene are such different things that far more guessing is involved than most fingerprint “experts” care to admit.

3. Other types of forensic evidence are scientifically proven and therefore infallible. Only on TV. Judge Kozinski cites error rates as high as sixty-three percent on voice identification; forty percent on average and up to almost one hundred percent on handwriting; up to sixty-four percent on bite marks; twelve percent on hair comparison. These are rates we send people to prison for, send them to their deaths. Men and women have been sentenced to countless years of prison, he writes, convicted on evidence by arson experts “later shown to be little better than witch doctors.”

4. DNA evidence is infallible. That would be true (maybe) if the trained professionals who collect and analyze the evidence were honest, properly trained and, incidentally, robots. The scandals involving FBI labs, local police labs — labs, in fact, in my home state — are plentiful. DNA evidence is pretty good — when it isn’t planted, tainted, or otherwise mishandled.

5. Human memories are reliable. What did you say? Why are we always the heroes of our own stories? Ever wonder why prosecutors like to prep witnesses they then advise never to talk with the defense?

6. Confessions are infallible because innocent people never confess. My own clients have confessed to the police based on information the cops claimed to possess, or on how the “facts” were presented to them — then later, after telling me what happened, learned that what they were about to plead guilty to did not fit what they actually had done. In some cases, no crimes were committed at all, but still they would have confessed. No wonder a person who represents himself is considered to have a fool for an attorney. And that doesn’t even begin to consider innocent people who confess under harsh interrogation, emotional or mental impairment, or just a pathetic desire to get it over with.

7. Juries follow instructions. No one can follow instructions he or she can’t understand, and that a judge can’t explain. Even the reasonable doubt instruction: what the hell is that? And because jury rooms are sacrosanct, we don’t even know if the instructions lawyers fight over are even read except by the judge, much less deliberated.

8. Prosecutors play fair. Please.

9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt. That must explain why prosecutors convict eighty-five percent of the people they indict. Not because presumption of innocence is a high-flown concept that flies high out the window as soon as a prosecutor asks his first question. Not because the prosecutor gets both the first and last words in a trial. Not because the prosecutor has the authority and financial power of the state at her call. Those poor babies.

10. Police are objective in their investigations. I have rarely — so rarely that I seek them out afterward if they have not done this, to thank them — heard a police officer who did not lie at trial, under oath, in front of God or anything at all they consider holy. They are even more rarely simply evil people; they are men and women who believe the defendant is guilty, and want to make sure the jurors believe it too. To this end they will, as Judge Kozinski writes, manufacture evidence, destroy evidence, influence witnesses, and extract false confessions. Did O.J. Simpson murder his wife and her friend? Absolutely. Did the cops frame an innocent man? No, they framed a guilty man, and the jurors saw through that. The criminal trial that acquitted him and the civil trial that condemned him both were proper results.

11. Guilty pleas are conclusive proof of guilt. They are rather, in many cases, conclusive proof prosecutors care more for convictions than for justice. Guilty pleas are coerced by overcharging so that terrified defendants are bullied into taking a lesser plea to avoid the risk of prison. Many clients will “take the deal” because their own lawyers are telling them it’s safer than rolling the dice at trial. Sometimes the price is trivial; sometimes it is devastating; always it has nothing to do with justice.

12. Long sentences deter crime. They deter further crime by the people who are serving those long sentences, until they get out and many discover how difficult it is to rejoin their communities after so long behind bars, and commit crime again. I suspect that few if any persons who have time to contemplate an upcoming crime first consult Google about their likely sentences if caught. I know they don’t call me.


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2 Responses to The Dirty Dozen

  1. David Bates 3 November 2016 at 4:04 pm #

    Thanks for another insightful and thought provoking cry from Colorado. We like to know what goes on in your world way down here in New Zealand.
    David Bates – Barrister –

  2. Kevin Ripa 31 October 2016 at 9:07 pm #

    Wow. Outstanding post. I am on my feet cheering!!!! I wish I could put it all as eloquently. like you, I have far too many “case studies” that involve every one of the dirty dozen you have outlined!

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