Ninth Circuit Judge Alex Kozinski, one of the brightest legal minds in the country and fearless in his willingness to hold the government accountable, has issued another challenge to our justice system writ large and the Department of Justice in particular. In today’s Wall Street Journal, Judge Kozinski explains the importance of a report the White House is releasing today from the President’s Council of Advisors on Science and Technology [PCAST].
This report calls into question or flat out condemns “the scientific validity of forensic evidence techniques” on which rest countless criminal convictions in federal and state courts across the country. This includes DNA, fingerprint, bitemark, firearm, footwear and hair analysis. As Judge Kozinski notes, television shows like CSI have instilled a belief that these methods can be trusted, and many juries have convicted based on them. But in truth, both the methods and those who apply them are quite fallible. Indeed, Judge Kozinski writes, “Bitemark analysis is about as reliable as astrology.”
There are many examples of false identifications—even with fingerprints, which we have long thought were so accurate. One need only look to the FBI’s declaration that the 2004 Madrid bombing fingerprint matched that of an American lawyer. Fortunately for that American, Spanish authorities identified the real bomber.
The DOJ was so incensed by Kozinski’s article that it published a response, and Deputy Attorney General Sally Yates took to the stage around the country to contradict him.
Most damning, however, is this fact: Our Department of Justice has only reviewed 312 out of 7,600 highly questionable convictions, including 64 capital cases, in the last 17 years—even though its own inspector general impugned 13 FBI lab examiners responsible for those 7,600 convictions. We have written at length about the Department of Justice’s protection of countless prosecutors who have engaged in all kinds of unethical and illegal behavior. This is simply another form of prosecutorial misconduct and an egregious failure of the Department of Justice whose solemn duty is to seek justice—not convictions.
It’s not just the science that is flawed. Virtually all of the experts testifying for the government in criminal cases are themselves government agents and, as Judge Kozinski wrote, “sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury.” Jurors, naturally, often take the proclamations of government experts “as gospel.” In addition, overzealous prosecutors frequently pressure the experts to sound more certain than they truly are.
Expect an explosion over Judge Kozinski’s article, and over the PCAST report. The National District Attorneys Association has already slammed the report. This association of prosecutors argues that the report ignores “vast bodies of research, validation studies, and scientific literature.” The prosecutors want it left to the judges to decide admissibility and jurors to decide the weight to be given to the evidence.
That sounds great until one acknowledges the reality that most judges admit virtually anything the prosecutor wants admitted and rarely allow competing evidence if the defense can even afford to find a counter-expert. It also ignores the reality that in a criminal prosecution in our country today, we have lost the presumption of innocence. Once a person is indicted, people tend to assume that person is guilty, and the weight of the evidence produced by the government is almost always heavier than that of the defense.
We’ve turned it all upside down. One need only read my book, LICENSED TO LIE: Exposing Corruption in the Department of Justice, and Judge Kozinski’s foreword to it, to understand the human toll that a wrongful prosecution takes on all involved and how terrifyingly easy it is for an innocent person to be convicted.
Remember the horrific case of Michael Morton in Texas? Morton was convicted for murdering his wife. The prosecutor who convicted him ran for state judge and was elected based on that conviction. Meanwhile, Michael Morton lost his young son to the adoption of another family and spent 25 years in Texas prison.
Thanks to the Innocence Project and years of fighting—including to get a DNA test—Morton was completely exonerated. The prosecutor hid a bloody bandana and other evidence that would have led to catching the real murderer (who is on trial right now for murdering again), and the successor district attorney opposed the DNA test for years—compounding the injuries to the innocent Mr. Morton and his son. It’s nothing short of an outrage.
Consider this: There is a very real possibility that 10 percent of our enormous prison population is innocent. What if it were you? Why is the President freeing dangerous drug dealers and giving billions of dollars to a terrorist nation, while people with claims of actual innocence can’t get their cases reviewed?
We have to agree with Judge Kozinski. Review of all convictions of questionable validity should be undertaken immediately, and those who are in prison because of such should be released. That review should be undertaken independent of the Department of Justice which simply cannot be trusted any more to examine itself.
When DNA is the issue, testing should be done immediately to validate claims of actual innocence, and no prosecutor worthy of the job should oppose such a test. In truth, it is the prosecutor who should request it.
Judge Kozinski has other solutions for the problems plaguing our administration of justice also. He wrote the Preface to the Georgetown Law Journal on these and related issues last fall.
The Justice Department was so incensed by Judge Kozinski’s article that it published a response, and Deputy Attorney General Sally Yates took to the stage around the country to contradict him. “Me thinks they doth protest too much.” At the same time then Attorney General Holder promised they would “admit their errors,” the Department of Justice opposed new trials in the face of proven prosecutorial misconduct and did little to review the hundreds of questionable convictions identified by their own inspector general—finding only more problems wherever they looked.
It’s time for an independent panel to be established to review the many wrongful convictions. Will the Justice Department object in the face of the report by the President’s Council? It should not. It’s only interest should be in convicting the guilty while protecting the innocent—including those wrongfully convicted. Justice is not a game.
Sidney Powell worked in the Department of Justice for 10 years, in three federal districts under nine United States Attorneys from both political parties. She was lead counsel in more than 500 federal appeals. She is the author of Licensed to Lie: Exposing Corruption in the Department of Justice—a legal thriller that tells the inside story of high-profile prosecutions.