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Judge Alex Kozinski of the Ninth Circuit has published a stunning law review article in the Georgetown Law Journal that gives us numerous reasons to doubt that our criminal justice system is fundamentally just – among them, evidence that prosecutors do not play fair.

Judge Kozinski has not been shy in calling out prosecutorial misconduct and the failure of courts to stop it; yet, as he notes in this latest piece, his infamous proclamation that there is an “epidemic of Brady violations abroad in the land” has done little to change the way prosecutors operate in the U.S.

Juan Martinez of the Maricopa County Attorney’s Office provides a useful case-in-point for some of Kozinski’s criticisms. A new article by PHOENIX magazine takes a close look at Martinez, characterized by his colleagues as a lone wolf who skates on thin ice to win convictions.

In a punchy opening paragraph to his law review article, Judge Kozinski suggests that, “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.” Martinez is certainly that sort of prosecutor. Writing for PHOENIX, Paul Rubin reports that current and former colleagues of Martinez noted his,

“monumental ego and pathological disdain for plea bargaining – how he uses his influence and clout to insist on trials on slam-dunk cases of guilt, sucking up time, money and limited resources while making victims’ loved ones relive horrors in court.”

His willingness to fight when others would back down has won Martinez respect in some circles. For instance, in a case of a police-shooting of an unarmed man, one onlooker said,  “I can honestly tell you that the case wouldn’t have happened without Juan’s persistence.”

But his aggressive overreaching and underhanded tactics, as described in both the PHOENIX article and a recent opinion-editorial in Slate are exactly what Judge Kozinski says concerns him about prosecutors. For example, from PHOENIX:

“Juan is a victory-at-any-cost prosecutor driven by his own ego,” says Mel McDonald, a onetime judge and United States Attorney for the District of Arizona now working as a criminal-defense attorney. “He lies easily and he always overreaches, always plays to the mob mentality.”

This is the sort of attitude that Judge Kozinski says leads to the illegal suppression of evidence, one of the most common and disturbing manifestations of prosecutorial misconduct. Judge Kozinski writes,

“The Supreme Court has told us in no uncertain terms that a prosecutor’s duty is to do justice, not merely to obtain a conviction. It has also laid down some specific rules about how prosecutors, and the people who work for them, must behave—principal among them that the prosecution turn over to the defense exculpatory evidence in the possession of the prosecution and the police.

There is reason to doubt that prosecutors comply with these obligations fully. The U.S. Justice Department, for example, takes the position that exculpatory evidence must be produced only if it is material. This puts prosecutors in the position of deciding whether tidbits that could be helpful to the defense are significant enough that a reviewing court will find it to be material, which runs contrary to the philosophy of the Brady/Giglio line of cases and increases the risk that highly exculpatory evidence will be suppressed.”

Indeed, the accusation of hiding exculpatory evidence from the defense is leveled at Martinez on a regular basis. In a 2013 profile of Martinez by Michael Kiefer for The Arizona Republic, Kiefer reported that Martinez helped send seven people to death row since he started at the Maricopa County Attorney’s Office in 1988. He was accused of prosecutorial misconduct in all but one of those cases. One judge on the Arizona Supreme Court said during oral argument in one of the cases,

“Well, this prosecutor I recollect from several cases… This same prosecutor has been accused of fairly serious misconduct, but ultimately we decided it did not rise to the level of requiring a reversal… There’s something about this prosecutor, Mr. Martinez.”

Judge Kozinski says it’s time to rein prosecutors in, so that those like Martinez can no longer abuse their power without being held to account. There are entire prosecutorial offices that demonstrate the need for reform, such as the Orange County District Attorney’s Office, which we have covered in detail. Referring to the OCDA, Judge Kozinski says, “Pulling an elephant’s teeth is surely easier than extracting exculpatory evidence from an unwilling prosecution team.”

Judge Kozinski’s suggested reforms are helpfully summed up by Jacob Gershman of the Wall Street Journal.  They include judicial referrals of misconduct to the Department of Justice and federal legislation to require federal prosecutors to disclose any evidence “that may reasonably appear to be favorable to the defendant in a criminal prosecution.” Similar legislation at the state level wouldn’t go astray either.

And Judge Kozinski again urges his colleagues on the bench to include the names of prosecutors in their opinions instead of shielding misbehaving prosecutors from accountability through anonymity. However, as the PHOENIX article on Martinez so aptly shows, even knowing and repeatedly saying the names of problem prosecutors isn’t enough to rein them in.


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