Not somebody who shies away from controversy, federal appellate Judge Alex Kozinski, one of the nation’s most prominent legal minds, worried aloud to a rapt Berkeley audience that too many people are ignorant of “serious and embedded” corruption that plagues California law enforcement.
“The public thinks that we have the best criminal-justice system in the world and that we never make mistakes,” Kozinski said at a February symposium on prosecutorial misconduct. “And that is reinforced by television. . . . There are a lot of shows where they catch the bad guy and the public believes that is the case: that prosecutors are [always] fair, forensic examiners are [always] accurate, and everything is hunky-dory. It’s not.”
Those familiar with the Orange County jailhouse-informant scandal know the 1985 President Ronald Reagan appointee to the United States Court of Appeals for the Ninth Circuit has a point. Prosecution teams consisting of sheriff’s deputies, police officers and deputy district attorneys conducted secret, unconstitutional scams to win felony convictions, hid exculpatory evidence from juries and committed perjury to cover up their misdeeds. Sheriff Sandra Hutchens and District Attorney Tony Rackauckas even launched deceitful public-relations campaigns hailing their righteousness by confusing citizens unfamiliar with the facts that have wrecked at least 16 murder and attempted-murder cases.
Of course, as Kozinski acknowledged, there are upright badged folks. “When I talk about prosecutorial misconduct, I don’t want to be understood as saying that all prosecutors or most prosecutors are dishonest or commit misconduct,” he said. “Most, in my experience, are honest, reliable and trying to do the right thing. The problem is that there are some out there who misbehave, and occasionally, an entire prosecutorial office misbehaves because of the leadership.”
Kozinski’s last line might as well have named Rackauckas, the 74-year-old elected politician assigned the task of safeguarding our local criminal-justice system, but who declined to punish a single wrongdoer on his staff. He also hasn’t filed charges against three sheriff’s deputies (Bill Grover, Seth Tunstall and Ben Garcia) who are, according to Superior Court Judge Thomas M. Goethals, guilty of committing perjury in their testimony during 2014 and 2015 special evidentiary hearings for a death-penalty case. There’s no mystery for the DA’s inaction—the lies benefitted his office.
Orange County’s mess ensnarled the California Attorney General’s office, too. Like his predecessor U.S. Senator Kamala Harris, AG Xavier Becerra possesses the legal authority, if not the moral obligation, to pursue charges when a cop is caught brazenly lying under oath. More than 30 months ago, during Harris’ watch, the office opened an investigation into sheriff’s department antics, including the perjury.
This supposedly ongoing probe appears to have been nothing more than a sham. In addition to producing no charges, AG investigators obeyed an assistant sheriff’s commands that interviews not be recorded. Perhaps worse, Deputy AG Michael T. Murphy huddled this year with Hutchens not to pressure her to clean up her soiled act, but rather to offer strategy on how to downplay the scandal during her own testimony in front of Goethals, according to court records. Murphy also gave immunity to numerous members of Hutchens’ command staff involved in the scandal.
The refusal of law-enforcement officials to police themselves troubles Kozinski. “[Prosecutors] turn a blind eye, or they willfully encourage [cheating],” he told the symposium crowd. “Now, that’s serious misconduct. We hear a lot about when the police shoot somebody in the street. But it’s just as bad when a prosecutor puts an innocent man in prison and tries to take his life or the years he has left on Earth by using flawed or falsified or perjured evidence.”
For his own part, the judge, a son of Holocaust survivors, is trying to lead by example, hoping to “shock and awe the public” out of misguided complacency. During January 2015 oral arguments in a Riverside County murder case, for example, he confronted Deputy Attorney General Kevin Vienna about why his office had not filed charges against two prosecutors and a witness who provided false testimony to a jury. Vienna concocted an excuse, arguing without conducting any investigation, that the fibbers might not have known they were fibbing and, besides, the deputy DAs endured the horrific shame of being named unfavorably in an appellate opinion.
Along with his two panel members, Kozinski didn’t buy it. He demanded to know why neither the AG nor the Riverside DA did anything in response to the revelations. “You’d think when they found out about [the perjury], they’d be up in arms and they would have done something about it to show that this is an aberration,” he said. “But the total silence suggests this is the way it’s done and they got caught this time, but they’re going to keep doing it because they have state judges willing to look the other way. That’s not a reassuring picture.”
Kozinski continued, “If you stood here today and said, ‘My God, they have taken these measures. They prosecuted the guy. They have sought discipline,’ that would show some sincerity and some suggestion this is an aberration. But I don’t see anything like that.”
“The, uh, uh,” Vienna replied.
“Sounds like this is just the way that they do it,” the judge said before asking if the AG’s office had taken “any steps to show that California does not condone prosecutors getting on the stand and lying to the jury in a criminal case.”
“I, I, I guess my answer is I supposed other than the criticism from the court of appeal, the answer to that is no.”
Winning applause at the symposium, Kozinski played the video of the January 2015 exchange and his rebuke.
“This does not speak well for prosecutors in California,” he told Vienna. “It doesn’t speak well for the Riverside County DA’s office, and it speaks very poorly of the California Attorney General’s office.”
If the AG’s office heeded the judge’s call for honest oversight of law-enforcement shenanigans, officials had the perfect opportunity in the Orange County snitch scandal to demonstrate rehabilitation. But it seems they are destined to blow it once again by sending an unambiguous message to dirty cops: You’ve got a free pass to lie on the witness stand and walk away smiling.