Prosecutorial misconduct is disturbingly common:

“… there are disturbing indications that a non-trivial number of prosecutors —and sometimes entire prosecutorial offices — engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police. …

 

“[P]rosecutors cannot be held liable, no matter how badly they misbehave, for actions such as withholding exculpatory evidence, introducing fabricated evidence, knowingly presenting perjured testimony and bringing charges for which there is no credible evidence. All are immune from liability. A defense lawyer who did any such things (or their equivalents) would soon find himself disbarred and playing house with Bubba.”

Common assumptions are not true:

“[R]esearch shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. Eyewitness reliability is further compromised when the identification occurs under the stress of a violent crime, an accident or catastrophic event—which pretty much covers all situations where identity is in dispute at trial.

 

“In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases. Yet, courts have been slow in allowing defendants to present expert evidence on the fallibility of eyewitnesses; many courts still don’t allow it. Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony. …

 

“Innocent people do confess with surprising regularity. Harsh interrogation tactics, a variant of Stockholm syndrome, the desire to end the ordeal, emotional and financial exhaustion, family considerations and the youth or feeble-mindedness of the suspect can result in remarkably detailed confessions that are later shown to be utterly false.”

Police have ample ways to stack the deck:

“Police investigators have vast discretion about what leads to pursue, which witnesses to interview, what forensic tests to conduct and countless other aspects of the investigation. Police also have a unique opportunity to manufacture or destroy evidence, influence witnesses, extract confessions and otherwise direct the investigation so as to stack the deck against people they believe should be convicted. And not just small-town police in Podunk or Timbuktu. Just the other day, ‘[t]he Justice Department and FBI formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all [of the 268] trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.’

 

“Do they offer a class at Quantico called ‘Fudging Your Results To Get A Conviction’ or ‘Lying On The Stand 101’? How can you trust the professionalism and objectivity of police anywhere after an admission like that?

No evidence long prison sentences make sense:

“We are committed to a system of harsh sentencing because we believe that long sentences deter crime and, in any event, incapacitate criminals from victimizing the general population while they are in prison. And, indeed, the United States is enjoying an all-time low in violent crime rates, which would seem to support this intuition. But crime rates have been dropping steadily since the 1990s, and not merely in the United States but throughout the industrialized world. Our intuition about harsh sentences deterring crime may thus be misguided. We may be spending scarce taxpayer dollars maintaining the largest prison population in the industrialized world, shattering countless lives and families, for no good reason. …

 

“By any measure, the United States leads the world in incarceration. In absolute terms, it has more prisoners than any other country. With just 5 percent of the world’s population, we have almost a quarter of the world’s prisoners. China, with nearly 20 percent of the world’s population, has 16 percent of the world’s prisoners. Incarceration rates were not always this high in the United States. For the first three-quarters of the twentieth century, the rate was well under 250 per 100,000.88 Then, starting around 1980, incarceration rates started rising sharply with the advent of the war on drugs, mandatory minimum sentences and three-strikes laws.

 

“The difference in incarceration rates cannot be explained by higher crime rates in the United States. Crime rates here are roughly equivalent to Canada and in many categories lower than other countries. And the crime rate has been dropping in the United States, as in many other industrialized nations. Yet, U.S. sentences are vastly, shockingly longer than just about anywhere else in the world.

Law enforcement as an industry, manufacturing convictions

Kozinski’s critique is similar to that long offered by Harvard law professor Alan Dershowitz, who has written for decades about how rampant police perjury — known as “testilying” — has turned the criminal-justice system into a factory where the product is convicts.

Kozinski’s Georgetown piece concludes with several proposed reforms, in particular allowing jurors to directly, personally review evidence and to talk among themselves to try to build a more thorough, rational basis for their decisions on guilt and innocence. But he also touches on the key issue in the massive Orange County scandal that’s now unfolding over the District Attorney’s Office’s questionable use of jailhouse informants:

“In response to a devastating report on jailhouse informants issued by the Los Angeles County grand jury in 1990, the county adopted procedures that required the approval of a committee before informants could be used. The use of informants consequently plummeted.

 

“Even still, the practice of using jailhouse informants as a means of detecting and perhaps manufacturing incriminatory evidence has continued in California. Serial informants are exceedingly dangerous because they have strong incentives to lie or embellish, they have learned to be persuasive to juries and there is no way to verify whether what they say is true. A man jailed on suspicion of a crime should not be subjected to the risk that someone with whom he is forced to share space will try for a get-out-of-jail-free card by manufacturing a confession.”

National Review had a recent cover story on the Orange County scandal, with the headline, “When District Attorneys Attack.”

It's not just the “testalying” that Harvard law professor Alan Dershowitz described in the O.J. Simpson criminal trial. (Dershowitz ripped off a theme from the novels of Joseph Wambaugh, as Wambaugh told me in an interview last year. This Salon article confirms the ripoff.) It's also the routine abuses of power that officers engage in when no one is looking.

As evidence, I cite the skyrocketing number of cases of gross police violence that have been caught on videotape thanks to the profusion of smartphones and video surveillance. As the Rodney King case suggests, these incidents are nothing new. Technology has just made them way easier to convincingly document. We now see an example in L.A.:

“Video from a police cruiser camera that shows an LAPD officer kicking a restrained woman — who later died — needs to made public, the family attorney said Thursday. … 

“O'Callaghan was one of several officers sent to Thomas' home in the 9100 block of South Broadway Avenue to investigate allegations Thomas had abandoned her children after they were left at a local police station.

“O’Callaghan arrived to assist the arresting officers in placing Thomas in a patrol car. While Thomas was in handcuffs and leg restraints, prosecutors said, a police cruiser’s video camera captured the veteran officer kicking Thomas in the stomach and groin area and pushing her in the throat. 

“Thomas, once inside the patrol car, lost consciousness and paramedics were called. Shortly afterward, she was pronounced dead at a hospital.”

Why do police hate smartphones so much? Duh

Which brings us to the nationwide efforts that law-enforcement officials and unions have pursued to make it illegal for members of the public to videotape or audiotape an officer on duty, even though the U.S. Supreme Court ruled in 2012 that it was legal. But that doesn't stop police from continuing to arrest people who videotape them in action, including this recent case from the L.A. suburb of Hawthorne.

In a law-enforcement setting in which we must assume that the more evidence the better, why would cops not want to be videotaped? It's fair to surmise that it's not just because they don't want their violent actions rebroadcast on YouTube. It's that close scrutiny during evidence-gathering might show efforts to simplify the narrative of the crime to point decisively toward one possible conclusion. Such scrutiny makes officers' jobs more difficult in several ways.

Which brings us to the experiment undertaken by the police department in Rialto, a distant L.A. exurb in the Inland Empire with some nice new subdivisions mixed with older neighborhoods and rough areas. The New York Times had the details in August:

“RIALTO, Calif. — 'Get on the ground,' Sgt. Chris Hice instructed. The teenage suspects sat on the curb while Sergeant Hice handcuffed them.

“'Cross your legs; don’t get up; put your legs back,' he said, before pointing to the tiny camera affixed to his Oakley sunglasses. 'You’re being videotaped.'

“It is a warning that is transforming many encounters between residents and police in this sunbaked Southern California city: 'You’re being videotaped.'

“Rialto has become the poster city for this high-tech measure intended to police the police since a federal judge last week applauded its officer camera program in the ruling that declared New York’s stop-and-frisk program unconstitutional. Rialto is one of the few places where the impact of the cameras has been studied systematically.

“In the first year after the cameras were introduced here in February 2012, the number of complaints filed against officers fell by 88 percent compared with the previous 12 months. Use of force by officers fell by almost 60 percent over the same period.”

Makes suspects behave better — or both suspects and cops?

The article reviews the Rialto experiment very favorably. It concludes with an observation from Sgt. Hice about videotaping improving the behavior of suspects and reducing the possibility they can come up with alibis or excuses — an observation about the effects of videotaping that also applies to the behavior of officers being improved and their opportunities for misconducted being constrained.

“Sergeant Hice said he has come to view the camera as a kind of protection. The video would show the two teenagers running through the field matching the description he was given, he said, and that he did not use excessive force while detaining them.

“'It captures what’s really occurring in real time,' he said. If the suspects later 'think of a good story, with bits of detail thrown in to enhance a false story,' he added, 'we can dispel it.'”

Now of course criminals (and suspects) lie. So of course the point that Hice makes is valid. But that doesn't invalidate my theory. If having cops wear cameras was so helpful, they would clamor to wear them — not fight allowing the public to videotape them. Instead, officers know there are things that it's best the public don't see.

Or at least it's best for police if they go unseen.