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29 Geo. J. Legal Ethics 305
Georgetown Journal of Legal Ethics
Spring, 2016
Article
FOR SHAME: THE PUBLIC HUMILIATION OF PROSECUTORS BY JUDGES TO CORRECT WRONGFUL
CONVICTIONS
Lara Bazelona1
Copyright © 2016 by Lara Bazelon
ABSTRACT
Shaming sanctions have a long history in the United States. In the colonial era, judges routinely subjected criminal offenders
to a variety of public humiliations that included branding and even maiming. These punishments were designed to exact
retribution, deter future misdeeds, and to impress upon the offender the importance of adhering to community norms.
Shaming sanctions largely disappeared in the early 1800s with the rise of the prison industrial complex, only to reappear in
courtrooms across the country in the early 1990s, when trial judges began to demand that offenders write public apologies,
mop streets they had desecrated, and wear signs proclaiming their offenses to the world.
Now, a new shame sanction is on the horizon with a wholly unexpected cast of characters. The shamers are federal appellate
judges; the shamed are prosecutors who vigorously defend criminal convictions that are infected by state-sanctioned
misconduct. At stake are the reputation of the prosecutor’s office and the outcome of the case. The federal judges have no
legal means of granting relief because of a statute that bars overturning state court judgments except under the most extreme
circumstances. Hands tied, the judges turn oral argument into a public theatre in which they deploy shaming sanctions
against prosecutors in live-streaming video that is later posted to YouTube and watched by thousands if not tens of thousands
of people. In these arguments, the judges use moral condemnation to attempt to persuade the prosecution that its position is
morally abhorrent.
This Article explores the use of this new shaming sanction from an ethical and efficacy perspective, asking if it is a proper
use of judicial authority and more practically, if it works. This Article draws three conclusions based on a small *306 sample
of cases. First, that as judges grow more social-media savvy and video-streaming oral arguments becomes a more common
practice, this shaming sanction will likely continue. Second, the efficacy of the sanction seems to turn, at least to some
degree, on how many people are watching. When judicial condemnation becomes a matter of public knowledge, the
prosecutor’s office is more likely to reconsider its position because of mounting political pressure and embarrassment.
Finally, while shaming sanctions are not rooted in legal doctrine, there is nothing unethical about using them. To the
contrary, this Article concludes that by shaming prosecutors in this particular case-specific way federal judges are carrying
out their essential mandate: to protect the individual--however powerless and despised-against the abuse of authority by the
State.
TABLE OF CONTENTS
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INTRODUCTION
307
I. THE EFFICIENCY AND ETHICS OF SHAMING SANCTIONS
311
A. WHAT IS SHAME AND HOW DOES IT OPERATE ON THE HUMAN PSYCHE?
311
B. DO SHAMING SANCTIONS WORK?
312
C. ARE SHAMING SANCTIONS ETHICALLY DEFENSIBLE WHEN USED AGAINST CONVICTED CRIMINALS?
315
II.
318
THE HISTORY OF PROSECUTORIAL SHAMING
A. PROSECUTORIAL MISCONDUCT AT TRIAL
320
B. THE ZEAL TO DEFEND WRONGFUL CONVICTIONS ON APPEAL
322
C. JUDICIAL RELUCTANCE TO SHAME PROSECUTORS IN WRITTEN OPINIONS
324
III.
A NEW SHAME SANCTION: JUDGES HUMILIATING PROSECUTORS DURING LIVESTREAMING ORAL ARGUMENT
328
A. PRECIPITATING FACTORS
328
1.
THE INNOCENCE MOVEMENT
328
2.
STATE COURT JUDGES’ RELUCTANCE TO OVERTURN CONVICTIONS
330
3.
THE EBBING POWER OF FEDERAL JUDGES
331
B. THE NEW SHAME SANCTION AS A REMEDY FOR INJUSTICE
334
1.
JOHNNY BACA V. DERREL ADAMS
335
2.
GAGE V. CHAPPELLE
340
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IV. CAN JUDICIAL SHAMING OF PROSECUTORS BE JUSTIFIED ON EFFICIENCY AND ETHICAL 346
GROUNDS?
A. THE EFFICACY OF JUDICIAL SHAMING SANCTIONS
346
B. ETHICAL ARGUMENTS APPLIED TO SHAMING SANCTIONS
350
CONCLUSION
352
*307 INTRODUCTION
Shaming sanctions, while infrequently imposed nowadays, have always sparked controversy, their sheer spectacle drawing
disproportionate attention from the media and academia.1 For decades, scholars have debated the ethics and efficacy of
punishing criminal offenders by publicly humiliating them.2 Since resurfacing in the early 1990s,3 shaming sanctions have
been used occasionally *308 by trial court judges frustrated with traditional methods of punishment.4 They have sought to
send a strong retributive and deterrent message “by expos[ing] the offender to public view and heap[ing] ignominy upon him
in a way that other alternative sanctions to imprisonment, like fines and community service, do not.”5
These public abasements took various forms. For example, in 2007, an Ohio municipal court judge ordered three people to
stand outside his courthouse for hours at a time dressed in chicken suits.6 In 2013, a different judge ordered a woman to hold
up a sign stating, “Only an Idiot Would Drive on the Sidewalk to Avoid a School Bus.”7 In 2004, a federal district court judge
ordered a San Francisco man to stand on the post office steps wearing a sign that read, “I stole mail. This is my punishment.”8
Other popular shaming punishments include *309 ordering defendants to issue public apologies in newspapers or on
television,9 to affix bumper stickers to cars alerting other drivers to a DUI conviction,10 and to place signs on front lawns
warning children to stay away because the resident was a pedophile.11
A novel form of legal shaming has now appeared on the horizon. Like other shaming sanctions, it also relies on the Internet
for impact. It is, however, unlike traditional shaming sanctions, populated by an unexpected cast of characters and propelled
by entirely different circumstances. The shamers are federal appellate judges. The shamed are prosecutors who defend
wrongful convictions.12 This new shame sanction has arisen in the wake of a federal law enacted in 1996, the Antiterrorism
and Effective Death Penalty Act (“AEDPA”). The AEDPA, and a series of Supreme Court cases interpreting the statute, have
imposed a highly deferential standard of review upon federal courts reviewing state court decisions. As a result, it has
become nearly impossible for federal appellate courts to overturn state-sanctioned convictions they view as manifestly
unjust.13 Life-tenured judges are consequently using shame sanctions to target prosecutors who insist on defending
convictions obtained through perjury, suppressed exculpatory evidence, and other misconduct. Because the AEDPA leaves
the appellate courts without a legal remedy, the judges expose and humiliate these *310 prosecutors in an effort to force them
to admit that the conviction was wrongful on ethical grounds and reconsider their vigorous defense of it.
The shaming begins on live-streaming video with the prosecutor speaking in measured tones to defend a criminal conviction
that, in the eyes of the judges, was fatally infected by state-sanctioned misconduct. In rapid-fire exchanges, the federal judges
pounce, demanding to know how the prosecutor can take a morally indefensible position. As the minutes tick by and the
fusillade of questions continues unrelentingly, the prosecutor becomes increasingly flustered: stammering, stumbling over
their words, and falling silent.14
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While the miserable prosecutor is the immediate target, the real audience is his office and errant prosecutors more generally.
It is this broad swath of the criminal justice system that these federal judges seek to indict by shaming. The message,
delivered in blunt, unsparing language, is that “[t]here is an epidemic of Brady violations abroad in the land. Only judges can
put a stop to it.”15 Only certain judges, however, have the unfettered ability to call attention to severe misconduct that affects
the integrity of criminal convictions. State court judges who must stand for reelection may face consequences at the ballot
box if they do so, as their opponents may deem them “soft on crime.”16
This Article discusses the new shaming sanction, asking whether it works, and whether it is ethical for judges to employ it
against prosecutors. Part I discusses the meaning of shaming sanctions and the manner in which shame operates on the
human psyche. It then summarizes the scholarly debate on the efficacy and ethics of traditional shaming punishments. Part II
traces the history of judicial shaming of prosecutors and explains why it has taken place only to a limited degree and with
limited effect. Part III discusses the roots of the new judicial shaming sanction: (1) the frustration on the part of some federal
judges that state court prosecutors and state court judges refuse to acknowledge the misconduct underlying many wrongful
convictions; and (2) the growing sense of impotence among federal judges, who are severely constrained by the AEDPA in
the kind of relief they can provide--usually, none at all.
*311 Part IV addresses the efficacy and ethical questions at the heart of this particular kind of shaming sanction: Is it
appropriate for federal judges to use public humiliation and even thinly veiled threats against an advocate in ongoing
litigation to achieve justice when no legal remedy is available? Does it work? The efficacy issue is discussed using two case
examples and a history of shame sanctions. The ethical issue is discussed through the prisms of judicial ethics, legal
remedies, and the fundamental role and responsibilities of federal judges. This Article concludes that judicial shaming, while
an extreme measure, is not legally or ethically prohibited. To the contrary, shaming sanctions allow federal judges to exercise
their most crucial mandate: to protect the rights of the individual against the abuses of the State.17 This Article further
concludes that shaming sanctions, based on an admittedly limited case sample, are effective only to the extent that they are
widely broadcast. Without a large public audience, there is insufficient pressure on prosecutors and the decision-makers
within their offices to reverse their position and concede error.
I. THE EFFICACY AND ETHICS OF SHAMING SANCTIONS
This section parses the meaning of shaming and how it affects human behavior. It explores the scholarly literature of shaming
sanctions as applied to criminal offenders with arguments for and against its efficacy as a punishment. Finally, the section
reviews the debate about the morality of shaming sanctions and concludes that, as currently applied, they are no more
inhumane and abasing than incarceration, which is the most dominant form of punishment used in the United States.
A. WHAT IS SHAME AND HOW DOES IT OPERATE ON THE HUMAN PSYCHE?
Shame is a complex emotion not easily reduced to pithy encapsulation or predictable effects on those who experience it. In
noun form, shame is “a painful feeling of humiliation or distress by the consciousness of wrong or foolish *312 behavior”
and “a loss of respect or esteem; dishonor.”18 Shame, the verb, is an action “used to reprove someone for something of which
they should be ashamed”; that is, an action that “aims to make its recipient feel humiliation, distress, and dishonor because of
blameworthy conduct.”19 Black’s Law Dictionary defines a “shame sanction” as a “criminal sanction designed to stigmatize
or disgrace a convicted offender, and often to alert the public about the offender’s conviction.”20
Shame “falls along a continuum of emotions ranging from embarrassment on one end to mortification on the other.”21 While
it is an undeniably unpleasant feeling to experience, psychologists have long deemed shame a healthy tonic in appropriate
doses because it reminds the recipient of the societal norms that should guide and circumscribe her thoughts and actions.22
Feeling shame is an effective check on misbehavior when the shamed person recognizes that she has transgressed those
norms and responds appropriately, by making amends and avoiding the problematic behavior going forward.23
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B. DO SHAMING SANCTIONS WORK?
Although prosecutors who are responsible for obtaining or perpetuating wrongful convictions are not felons, Adam
Gershowitz has argued that the “same logic” of shaming sanctions applies. Because they are guilty of shameful, blameworthy
misdeeds, judges should call them out by name in written opinions.24 Dan M. Kahan and Eric A. Posner have argued that
shaming sanctions work best on white collar offenders who tend to be “well-socialized and have internalized the rules that
external authorities deem proper, essential, and wise.”25 They are ripe targets because their position in society and economic
and *313 emotional investment in their reputations makes them “shame-sensitive.”26 If all three scholars are correct,
prosecutors do appear to be excellent shaming candidates: high-achieving professionals who work in an insular world of
repeat players for whom reputation is the central currency.27 The argument for its effectiveness to deter prosecutors from
protecting wrongful convictions becomes even stronger with the power of social media to magnify and spread the news of
judicial shaming beyond the courthouse.
In the criminal justice system, punishment has four enumerated goals: retribution, deterrence, incapacitation, and
rehabilitation. Whether any or all of these purposes are served by shaming sanctions has been long and hotly debated,28
although most scholars seem to agree on these two basic points. First, there are no empirical studies measuring the
effectiveness of shame sanctions.29 And second, because shame is person-specific and subject to multiple variations, it is hard
to predict what behaviors and responses shame will produce in any individual person.30 Whether the offender will be: (1)
punished sufficiently to satisfy society’s appetite for vengeance; (2) rendered unable to re-offend; (3) left without the desire
to re-offend; and (4) changed for the better, depends on the type of person who is being shamed and on the nature and degree
of the sanction.
At one extreme is the shameless person, indifferent to societal norms generally and therefore unlikely to feel embarrassment,
regret, or the desire to reform because of any specific societal condemnation.31 On the other end of the spectrum is someone
whose self-worth and core identity are tied to external perceptions that she is decent and honorable.32 For this kind of person,
placement on a sex offender registry, for example, would not simply be a deterrent to future sex-offending behavior. It might
be so thoroughly devastating as to result in *314 suicide.33 The nature and degree of punishment is as important as the
psychological make-up of the offender. Demanding that the offender wear an “I stole mail” sign outside a post office for a
few days is qualitatively different than requiring that she install a permanent sign on her front porch that proclaims, “Beware:
A Thief Lives Here,” while also maintaining a readily accessible website with links to documents setting forth the facts of her
indictment and conviction. Practitioners of shame sanctions aim for a sweet spot: sticks that inflict a non-lethal harm, wielded
against people who are susceptible to humiliation, resilient enough to recover from it, and possessed of the wherewithal to
change their bad behavior so as not to experience the shaming again.
Kahan and Posner, the most thoughtful and well-known proponents of this theory, have argued that when white collar
offenders--toxic waste dumpers, stock option back-daters, insider traders, embezzlers, and even drunken professionals
urinating at whim on public streets--are publicly shamed, the sanction can be extremely effective.34 Shaming sanctions work
because the shamed offenders pride themselves upon a reputation they have built within a tight-knit and norm-observing
community. Thus, when “a consensus arises that a person who has a good or adequate reputation is actually a very bad
type,”35 that assessment is profoundly painful to the offender, economically and emotionally. The natural reaction is to shun
the individual socially and in business because, by engaging in conduct that all agree is reprehensible, she has been revealed
as tainted and untrustworthy.
The threat or carrying out of what amounts to banishment creates a deterrent effect, not only for the offender, but also for that
individual’s larger circle, which is anxious not to have the same experience.36 There are judges who embrace this microtargeting theory of shame sanctions.37 Gershowitz noted, as just one example, a 1998 case in which a lobbyist convicted of
violating campaign finance laws was punished by having to write a narrative about his offense and disseminate it, “at his own
expense, to 2,000 Washington lobbyists and political *315 action committees.”38
C. ARE SHAMING SANCTIONS ETHICALLY DEFENSIBLE WHEN USED AGAINST CONVICTED
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CRIMINALS?
The question whether shaming sanctions are morally sound when applied to criminal offenders has inspired vigorous
debate.39 On one side are scholars who condemn shame sanctions as stigmatizing, grotesque, and exploitative,40 violating
“some deep norm requiring us to treat even the criminals with respect.”41 They point out that we have evolved significantly
since the Colonial era, when shame sanctions were commonplace.42 The State no longer puts people in the stocks to be pelted
with rotten fruit, brands them like cattle, or cuts off body parts to make future crimes physically impossible to carry out.43
Today, the vast majority of offenders are punished by imprisonment,44 which at least in theory, is private, sterile, and
humane.45 The anti-shame critique is, to a certain degree, a visceral one. Enjoying a family picnic while watching a lynching,
once an accepted form of entertainment, is now viewed as unbefitting of a civilized society.46 The reemergence of shaming
sanctions, albeit in far less draconian and *316 non-violent forms, is deeply troubling to its critics because it suggests that we
have gone backwards to embrace the most cruel and primitive aspects of our nature.47 They also argue that shaming sanctions
today lack a rehabilitative component; that is, they are not designed to allow the offender to reintegrate back into the
community after a certain period of ostracism, as was the case in the seventeenth and eighteenth centuries.48
On the other side of the debate are those who point out that modern-day shame sanctions are non-violent and far preferable to
prison,49 where physical assaults, rape, and the psychological torment of solitary confinement regularly occur.50 *317
Professor James Whitman has provided the most incisive and detailed discussion of the morality question, explaining why it
is far more complicated than it appears. After scouring American history and analyzing the philosophical and penological
“liberal arguments”51 that presuppose the rationality, equality, and independence of human beings, Whitman found nothing to
support the argument that the public degradation of criminals is immoral.52
Whitman notes that the reformers in the Victorian era moved for the repeal of shaming sanctions because they unfairly
targeted the poor and were undignified to the point of indecency.53 But there is nothing to prevent the modern day American
criminal justice system from meting out shaming sanctions equally among offenders regardless of income level. Indeed, the
adoption of sentencing guidelines by the federal government and by many states in the last several decades was intended to
prevent the court from considering a defendant’s income level by standardizing terms of imprisonment depending on the
nature of the offense.54 Nor, according to Whitman, is there a “clear analytic” argument supported by American liberal values
that non-violent shaming sanctions are immoral because they are excessively cruel and dehumanizing.55 Victorian beliefs
about the dignity of the body and the need to shield it from public rebuke simply do not translate in an era that celebrates
exhibitionism, “We have lost too much of the sense that shaming others is not a decent way to act.”56
While there are arguments on both sides, I conclude that the shaming sanction defenders have the stronger case. Non-violent
shaming sanctions do not appear to *318 be immoral or unethical, at least not when compared with the alternatives. As
viscerally distasteful as shaming sanctions may be, they are certainly no more degrading than prison.57 In the age of social
media, which trumpets self-expression of every kind, shaming sanctions are arguably losing some of the power to sting,58
(although, on the flip side, they are also permanently etched into the digital record).59 Perhaps most pointedly, “the American
legal community seems unable to see any decisive objection to them.”60 No ethical rule or code expressly prevents judges
from using shame sanctions61 and the United States Supreme Court has held that they are constitutional.62
II. THE HISTORY OF PROSECUTORIAL SHAMING
This Article is concerned with a specific type of judicial shaming. It occurs when the court takes the prosecutor to task during
an oral argument for defending grave misconduct that led to a wrongful conviction.63 This section briefly defines
prosecutorial misconduct, explores its impact, and discusses how judges have publicly shamed prosecutors for this kind of
behavior in the past.
There have always been judges who have shamed prosecutors face-to-face in their courtrooms.64 In the pre-internet era, for
the shaming to be a truly public sanction in a run-of-the-mill case, judges had to put it in writing.65 This practice *319 of
“naming names” in judicial opinions was, and remains, uncommon. While instances in which prosecutors are “name© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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shamed” receive extensive media coverage,66 they are the exception rather than the rule.67 Customarily, written opinions in
misconduct cases refer to the offending prosecutor obliquely, by using a title--“Assistant United States Attorney,” “Deputy
District Attorney”-or even more generic terms like “the Government” or “the State.”68 Rarer still are cases in which judges
shame prosecutors by referring them to the state *320 bar for disciplinary proceedings or demanding an external review by an
independent prosecutor.69
A. PROSECUTORIAL MISCONDUCT AT TRIAL
Broadly defined, prosecutorial misconduct occurs at trial when a prosecutor pursues a conviction “outside the bounds of
acceptable advocacy.”70 Prosecutorial misconduct takes many forms, including Brady violations,71 relying on false evidence,72
making false statements to the court,73 and arguing facts not in evidence.74 The most common form of prosecutorial
misconduct consists of Brady violations, whereby prosecutors hold back exculpatory or impeachment evidence that is
“material” to proving the defendant’s guilt or that suggests that the defendant is innocent.75
*321 It is difficult to assess the magnitude of prosecutorial misconduct, because much of what prosecutors do goes on behind
closed doors.76 On the one hand, there is wide agreement that the majority of prosecutors are decent and honorable people.77
At the same time, there is a growing consensus that prosecutorial misconduct, while relatively rare, is a real problem.78
Prosecutors are the most powerful actors in the criminal justice system.79 When they fail to live up to their constitutionally
mandated responsibility to seek justice, the consequences are *322 profound.80 Prosecutorial misconduct has a number of
different and overlapping explanations, which include ignorance, overweening ambition, poor training, willful blindness, and
even malice.81 But no matter the intent, the result can be catastrophic: wrongful convictions that result in innocent men and
women spending decades behind bars or on death row, sometimes weeks or days from execution.82
B. THE ZEAL TO DEFEND WRONGFUL CONVICTIONS ON APPEAL
Once a conviction is obtained, finality sets in: with a judicial finding of guilt, there is a strong presumption that the system
worked.83 A prosecutor’s political *323 and reputational concerns also weigh in the balance.84 It is not in the prosecutor’s
interests, the interests of her superiors, or the interests of the office as a whole, to second-guess the integrity of the
judgment.85 The urgent commitment to the status quo is pragmatic. Ambitious, hard-charging prosecutors know that the way
to the top is amassing guilty verdicts, not admitting colossal mistakes.86 Elected district attorneys who run on tough-on-crime
platforms know that it can be fatal to appear incompetent and worse, to foment a public perception that the true perpetrator is
on the loose.87 There is also a psychological toll--perhaps even a devastating amount of guilt--in admitting a wrongdoing that
cost someone her freedom, even if the conduct was unwitting, committed by colleagues, or occurred decades earlier.88 And
some prosecutors may truly trust that the jury got it right.
Prosecutors tasked with defending a conviction against compelling proof that it was wrongful and riddled with misconduct
have two choices: (1) accept the responsibility for participating--directly or indirectly--in an injustice that caused unspeakable
pain and suffering; or (2) insist that nothing went awry or that whatever mistakes may have been made were “immaterial.”89
Selecting the *324 latter option allows the prosecutor to escape legal and personal responsibility by insisting that the
convicted person would have or should have been convicted regardless of any misconduct.90 Case after case demonstrates that
prosecutors overwhelmingly choose the second option, and defend the soundness of a conviction in appeals that stretch on for
years or even decades.91 The refusal to admit a terrible misjudgment or mistake, much less an act of bad faith, holds true
regardless of whether the appellate prosecutor had any involvement at the trial level, personally knew the key players, or even
worked in the same office.92
C. JUDICIAL RELUCTANCE TO SHAME PROSECUTORS IN WRITTEN OPINIONS
Prosecutors have a number of reasons not to act unilaterally to vacate a wrongful conviction, including the institutional
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emphasis on finality, scarce resources, time constraints, and self-interest.93 In these instances, it is left to state and federal
appellate judges to cry foul. Acknowledging the powerful role that judges play in righting wrongs and setting high ethical
standards, scholars have called upon the judiciary to publicly shame prosecutors who commit misconduct by naming them in
written opinions.94 The argument is that publically shaming prosecutors will effect positive change much in the way that
shaming sanctions purport to do with criminal offenders: serving up “just desserts”; deterring future misconduct;
incapacitating them-- at least for a time--from the ability to repeat *325 the behavior; and rehabilitating them by offering a
chance to reintegrate into their legal communities as chastened and committed to the ethical practice of law.95
The call to “name names,” however, has gone largely unheeded.96 Although there are certain notorious cases in which
appellate judges have used the prosecutor’s given name to denounce her conduct,97 judicial opinions tend to favor discretion,
referring only to the anonymous “prosecutor,” “Assistant United States Attorney,” “Assistant District Attorney,” or even
more obliquely: “the State,” “the People,” or “the Government.”
United States v. Kojayan, is a good example. The facts of the case were relatively simple and mostly undisputed. The
defendant, Chake Kojayan, flew to Los Angeles from Lebanon with heroin valued at $100,000 sewn into her purse.98 The
only issue at trial was whether Kojayan knew she was carrying heroin. She claimed she did not. The broker of drug deal, a
man named Krikor Nourian, claimed that she did.99
Jeffrey Sinek, the Assistant United States Attorney assigned to try the case, rebuffed repeated requests by defense counsel to
disclose Nourian’s whereabouts and whether he was cooperating with the government and receiving benefits for his proffered
testimony against Kojayan.100 Sinek told defense counsel, “The government has complied with its discovery obligations; it is
not required to be defendant’s investigator.”101
At trial, Sinek did not call Nourian, choosing instead to introduce his out-of-court statements through another witness.102
When the defense tried to argue that the jury should infer that Nourian’s testimony would have been problematic for the
government, Sinek responded forcefully. In closing argument, Sinek told the jury that Nourian “has the right to remain silent”
and that the government could not force him to testify. “Don’t be misled that the government could have called Nourian,” he
said.103
Sinek’s statements to the jury were false, as was his written response to defense counsel that he had complied with his Brady
obligations.104 Nourian had indeed entered into a written cooperation agreement with the government in which he promised to
testify truthfully if called as a witness.105 Sinek insisted to the jury that the government had no power to call Nourian to the
stand because Nourian *326 would invoke his Fifth Amendment rights--rights he had explicitly waived in the written plea
agreement Sinek never disclosed. Sinek’s conduct was troubling enough, but in the eyes of the federal appellate court, the
Ninth Circuit, what his superiors did was worse.106 The prosecutor’s appellate brief, approved by the chief of the appellate
section, “skated perilously close to misrepresentation,” never mentioning Nourian’s plea agreement and stridently insisting
that it was defense counsel, not Sinek, who was the bad actor.107 It was only at oral argument, in response to a direct question
from the court, that Sinek finally admitted, “There was an agreement.”108
In the initial opinion authored by Judge Alex Kozinski, which reversed Kojayan’s conviction, the court called out Sinek by
name forty-nine times.109 But after the United States Attorney’s Office filed a brief requesting that Sinek’s name be redacted,
the Ninth Circuit agreed.110 Today, the Kojayan case remains “standard reading in some prosecutor’s offices,” a compelling
and cautionary tale of arrogance and power run amok.111 But the opinion names no one: not Sinek, not his supervisor, not the
chief of appeals, nor anyone else in his office who defended the conviction at every stage of review despite overwhelming
evidence that serious misconduct had occurred.112 Interviewed years later, Judge Kozinski stated that he acquiesced in the
government’s request to redact Sinek’s name because “he was satisfied that his message to that lawyer and his Office had
been heard.”113
In making that decision, Judge Kozinski was following a well-trodden path. The seminal prosecutorial misconduct decision
remains Berger v. United States, decided by the United States Supreme Court in 1935.114 The opinion is cited like an
“incantation” in nearly every case alleging misconduct, and it is easy to see why.115 The Court’s laundry list of this particular
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prosecutor’s misdeeds is eye-popping in Berger: The prosecutor was guilty of misstating the facts in his cross-examination of
the witnesses:
of putting into the mouths of such witnesses things which they had not said; of suggesting by his
questions that statements had been made to him personally *327 out of court, in respect of which no
proof was offered; of pretending to understand that a witness had said something which he had not said
and persistently cross examining the witness upon that basis; of assuming prejudicial facts not in
evidence; of bullying and arguing with witnesses; and, in general, of conducting himself in a thoroughly
indecorous and improper manner.116
And yet, the Berger opinion never mentions the offending prosecutor by name.117 He is referred to only by his title,118 except
in the footnotes, which quote the trial transcript where his name appears as “Mr. Singer.”119 The Supreme Court has continued
this practice through the present day. Reversing a conviction and death sentence in a 2004 case after prosecutors failed to
disclose that their central witness was a paid informant and other witnesses had lied on the stand, the Supreme Court referred
to the offenders only as “prosecutors” and “the State.”120
Scholars posit a number of reasons why appellate judges are reluctant to call out offending prosecutors by name. Many
judges are former prosecutors themselves, and feel empathy and some protectiveness.121 Others believe that the misconduct
was an isolated incident and should not dog the errant prosecutor for the rest of her career.122 Others may refrain as a matter
“professional courtesy”123 or believe, as Judge Kozinski, did, that the court’s strong message had been received and acted
upon.124
There are signs, however, of a shift in judicial attitudes regarding the public shaming of prosecutors. Ironically, the most
notable and public change of heart may be Kozinski’s own.125 Along with a small number of other federal appellate judges, he
is at the vanguard of a new kind of prosecutorial shaming, in which live-streaming oral arguments, readily available on
YouTube, become a public theatre.126 The prosecutor, up close and in color, his name stated and spelled for the record, is the
target of a relentless judicial interrogation. The judicial focus is *328 not on the validity of his legal arguments, but rather on
the morality of his position. The prosecutor is asked again and again how he can insist on defending the indefensible conduct
of his peers, knowing that it resulted in a wrongful conviction. The causes and consequences of this new kind of shaming are
discussed in Part III.
III. A NEW SHAME SANCTION: JUDGES HUMILIATING PROSECUTORS DURING LIVE-STREAMING
ORAL ARGUMENT
Recently, the stubborn refusal by appellate prosecutors to concede that misconduct-ridden convictions should be overturned
has incited a particular strain of wrath in some federal appellate court judges.127 While prosecutors have historically defended
these types of convictions, their zeal has taken on a new potency with the rising tide of exonerations and the concomitant
constriction on the ability of federal judges to overturn convictions they view as wrongful.128 This confluence of events,
combined with judges’ belated recognition of the power of social media, has resulted in the new kind of shame sanction that
is the topic of this Article.129 The emergence of this new shaming sanction, in which appellate judges use oral argument as a
forum to express their condemnation of prosecutors who defend misconduct-infected convictions, is explored and analyzed in
this section.
A. PRECIPITATING FACTORS
1. THE INNOCENCE MOVEMENT
Exonerations are like earthquakes. Loud and terrifyingly disruptive, they leave upheaval and ruin in their wake.130 In recent
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years, the low rumble has become an “avalanche.”131 In 2014, 127 people were exonerated, averaging more than two *329
each week.132 The stories of the wrongfully convicted are gut-wrenching, shocking, and tragic beyond belief: decades of lives
stolen, isolated from loved ones, and often subjected to physical and sexual abuse in prison.133 For the judges who preside
over criminal trials or examine the record of those trials on appeals, exonerations call into question the integrity of the
judicial system at its core.134
The National Registry of Exonerations, a project housed within the University of Michigan Law School, has documented
every known exoneration since 1989.135 The Registry collects detailed information about each case and sorts the data by
gender, race, geography, crime of conviction, and whether or not the case involved DNA.136 The Registry has detailed graphs
that set out the cause or causes of the wrongful convictions and chart their frequency over time.
On May 18, 2015, the Registry released a report summarizing the data on the 1,600 exonerations it had documented to date.137
Among the more startling statistics: nearly half of the exonerees were African-American, seventy-five percent of the cases
did not involve DNA evidence, and a significant number of exonerees had spent decades in prison.138 The report stated, “As a
group, the *330 defendants have spent more than 14,750 years in prison for crimes which they should not have been
convicted--an average of 9 years and 3 months each.”139 Thirteen of the exonerees died before their names were cleared, most
in prison.140 A graph depicting the number of exonerations over time shows a sharp spike from 2012-2014, each year setting a
new record-high number.141
The second most common cause of wrongful convictions is official misconduct, trailing only false testimony.142 Forty-five
percent of the total number of exonerations involved acts by police and prosecutors that grossly distorted the fact-finding
process.143 These include, but are not limited to: coercing, coaching, or threatening witnesses, neglecting to turn over
exculpatory evidence or actively hiding it altogether, making false representations to the court and to the jury, and
committing perjury. The Report is a damning indictment that points to an inescapable conclusion: that wrongful convictions
are not isolated instances but a national epidemic that exposes the unjust way in which justice is administered in the United
States.144 No one escapes blame: not the prosecutors or the police, not the defense lawyers who fail to do their jobs, and not
the judges who allow it to happen.145
2. STATE COURT JUDGES’ RELUCTANCE TO OVERTURN CONVICTIONS
Many state court judges are prone to uphold wrongful convictions for the same reasons that appellate prosecutors are inclined
to defend them.146 Most are *331 elected and those that are appointed must stand for retention elections.147 Many, like
prosecutors, run on a tough-on-crime platform.148 Some wrongfully convicted people have criminal pasts; freeing them could
be seized upon by a more conservative opponent as evidence that a judge has unleashed a danger into the community.149 Some
cases have bad optics: while it is clear that the defendant should not have been convicted based on the quantity and quality of
proof, it is not clear that the defendant is, in fact, innocent.150 Thus, while the law compels the judges to reverse the
conviction, they often do not.151 State appellate judges who face the electorate must be risk-averse to survive.152 And, like
prosecutors, judges have a vested interest in finality and the belief that the system worked precisely as it was meant to
work.153 It is destabilizing and demoralizing to accept the alternative.
3. THE EBBING POWER OF FEDERAL JUDGES
The bulwark against wrongful convictions has always been the federal judiciary, insulated from the vagaries of public
opinion by a life-tenured *332 appointment to the bench.154 But ironically, as knowledge and outrage over wrongful
convictions is rising, the ability of federal judges to do anything about the problem is ebbing.155 In 1996, Congress passed the
AEDPA, which sharply curtailed the power of federal courts to review and undo state court convictions.156 The AEDPA bars
overturning a state court judgment unless it was (1) “contrary to,157 or involved an unreasonable application of,158 clearly
established Federal law, as determined by the Supreme Court of the United States,” or (2) involved “an unreasonable
determination of the facts.”159
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The Supreme Court has interpreted AEDPA’s language to mean that federal courts cannot disturb state court judgments
“except when the state courts truly act irrationally, as opposed to erroneously, in rejecting constitutional claims on their
merits.”160 In 2011, the Court made it clear that this level of deference applies even when the state court decision provides no
reason for rejecting the petitioner’s federal constitutional claims.161 The AEDPA also imposes significant *333 procedural
roadblocks. Federal courts cannot even entertain claims attacking state court judgments unless those claims have been
“exhausted”; that is, fully briefed on the merits before the state’s highest court.162 With few exceptions, federal courts cannot,
as a matter of law, consider facts that might exonerate the defendant, unless they were previously presented at a state-level
appeal.163 The AEDPA also holds federal prisoners to a strict deadline, requiring that they must file any federal petition no
more than one year after the conclusion of the state court litigation.164 The procedural limitations and substantive prescriptions
imposed by the AEDPA mean that federal judges are without the legal power to overturn convictions they view as wrongful
except under the most extreme circumstances.165
For nearly two decades now, some federal judges have tried to find a way around the AEDPA, only to be slapped down in
per curiam reversals by the Supreme Court.166 This is particularly true in the Ninth Circuit, the country’s largest and
purportedly most liberal-leaning appellate court.167 The Ninth Circuit is also the home of the judiciary’s most scholarly and
incisive critics of the AEDPA and the Supreme Court’s unceasingly “inflexible and unyielding” *334 interpretation of it.168
While Judge Reinhardt is perhaps the most famously prolific and outspoken in his condemnation of the AEDPA,169 it is Judge
Kozinski, a Republican-appointed libertarian, who has lately seized the spotlight with his savage takedown of the law in
dark-humored and compulsively readable articles and opinions.170 But regardless of their views and their life tenure, all
federal judges must live in the AEDPA’s reality. So long as the statute lives, their power to issue written decisions
overturning state-sanctioned convictions--even those that rest on the rotting foundations of perjured testimony, withheld
evidence, lackluster lawyering, and other egregious misconduct--is close to non-existent.171
B. THE NEW SHAME SANCTION AS A REMEDY FOR INJUSTICE
In light of this reality, some federal appellate judges have attempted to publicly shame prosecutors into dismissing AEDPAgoverned habeas cases that they cannot put an end to themselves. To date, I have found examples only in the Ninth *335
Circuit, but it is the only circuit that currently live-streams oral arguments and provides on-demand video access to them on
YouTube.172 It is my contention that as more appellate courts adopt this model, this particular type of shaming sanction will
take hold and replicate itself in appellate courts across the country.173 This subsection explores two cases in which this type of
shaming sanction was employed to successful and unsuccessful effect.
1. JOHNNY BACA V. DERREL ADAMS
Johnny Baca was convicted of the 1995 murders of John Adair and John Mix, a gay couple who employed Baca as a live-in
housekeeper and gardener.174 There had been issues between Baca and the couple, who at one point had asked him to leave
but later changed their minds, apparently at the urging of Adair’s adopted son, Tom.175 On the day of the killings, Adair called
the police to report that he and Mix had been shot,176 but he was unable to identify the shooter.177 Police arrived to find Mix
shot dead and a .38 caliber revolver lying on the floor, which had no prints on it.178 Adair was alive, but had suffered two
gunshot wounds to his face.179 When the police asked him to name the shooter, Adair “responded in a garbled voice with
something that sounded like Baca.”180 He then repeated the word “Baca” several times and spelled it.181 Adair was taken to the
hospital, where he died a week later.182
At trial, the prosecution’s theory was that Baca had killed Adair and Mix in a murder-for-hire plot masterminded by Tom.183
A friend of Adair’s testified that Adair was intending to disinherit Tom, but there was no evidence that Tom or Baca was
aware of this fact.184 After Adair’s death, Tom inherited nearly half a million dollars from Adair, but there was no evidence
that Baca received any of that money.185
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*336 The state never charged Tom with the murders of Adair and Mix,186 nor did it call Tom to testify against Baca. Instead,
the trial prosecutor, Deputy District Attorney Paul Vinegrad, relied on the testimony of a jailhouse informant, who told the
jury that Baca had confessed to killing the couple at Tom’s behest to get money.187 According to the informant, Baca told him
that he panicked and ran off when Adair did not die immediately.188 Asked directly by defense counsel if he was receiving
any benefits in exchange for his testimony, the informant said no.189
Vinegrad then called his colleague, Deputy District Attorney Robert Spira, who was prosecuting the informant, to back up
the informant’s testimony. Under oath, Spira told the jury that the informant had entered into a plea deal in which Spira
recommended that the informant serve a fourteen-year prison sentence for voluntary manslaughter. Spira was emphatic,
however, that his recommended sentence was based solely on the informant’s cooperation against his co-defendant and had
nothing to do with his testimony against Baca.190
The California Court of Appeal concluded that Spira’s testimony had only a “superficial resemblance to reality”:
Spira managed to conceal the only facts that were favorable to the defense ... that the trial court
unilaterally reduced the informant’s plea bargain as a reward for testifying against the defendant, after
assurances from the prosecution that it would not seek review to enforce the terms of the plea bargain.
Furthermore, the claim that the informant never requested leniency for testifying against the defendant is
sheer fantasy for the simple reason that he *337 actually got just that, which never would have happened
had he not actively pursued it.191
The California Court of Appeal also took the prosecution to task for continuing to proffer Spira’s misrepresentations on
appeal.192 Dismissing the argument that Spira’s testimony could be viewed “in such a way as to make it true, or at least not
clearly false,” the court stated, “[t]his kind of hypothetical parsing does not dispel the highly misleading nature of the
testimony, which sent a single, unwavering, blatantly false message to the jury: that the informant sought nothing and got
nothing for testifying against the defendant.”193
Nonetheless, the California Court of Appeal declined to reverse Baca’s conviction, finding that Spira and the informant’s
false testimony did not prejudice the outcome of the trial.194 While the question was “close,” the court concluded, “in the end,
we do not see a probability of a different outcome.”195
After exhausting his state court remedies, Baca filed a writ of habeas corpus in federal court, claiming, among other things,
that his trial had been fatally infected by prosecutorial misconduct and false testimony.196 The prosecution, now represented
by the state Attorney General’s office, stuck by their original arguments despite the explicit factual findings of the California
Court of Appeal rejecting them. In federal court, the appellate prosecutors continued to insist that Spira and Vinegard had
done nothing wrong and that the informant had testified truthfully.197
The case was assigned to federal magistrate Judge Patrick Walsh.198 In a stand-alone section of his nearly forty-page Report
and Recommendation opinion, Judge Walsh expressed “utter disappointment” with the lawyers in *338 Baca’s case.199 The
conviction was based on the “lies” of a jailhouse informant “bolstered” by Spira, “who also lied,” and aided by Vinegrad,
who “literally made no effort to determine if [his] witnesses were telling the truth.200 The prosecution, Judge Walsh said, had
“turned a blind eye to fundamental principles of justice to obtain a conviction in this case.”201
Judge Walsh made it clear that, had it been his case to decide de novo, he would have granted Baca relief.202 But the
AEDPA’s highly deferential standard of review made that impossible. The state court’s finding that Baca would have been
convicted regardless of the prosecutor’s misconduct and defense counsel’s numerous failings was not a “clearly unreasonable
application of Federal law,” as the AEDPA required.203
Baca appealed to the Ninth Circuit, drawing a panel that consisted of Judges Kozinski, Kim Wardlaw, and Willliam
Fletcher.204 Oral argument on January 8, 2015 began routinely enough, with Baca’s counsel pointing out the constitutional
errors in the trial. Judges Fletcher and Wardlaw suggested that it was possible that the California Court of Appeal had applied
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the wrong legal standard in assessing prejudice--one that set a higher bar than necessary.205 Judge Fletcher pointed out,
however, that although the California Court of Appeal did not mention the correct case by name ... the AEDPA imposed the
strong presumption that it did in fact apply the correct case in assessing Baca’s false testimony claim.206 Judge Kozinski
added that if the federal court determined that the wrong legal standard had been applied, Baca would still have to show that
he was prejudiced even under a legal standard with a lower burden of proof.207 When Baca’s counsel took his seat, there was
little evidence to suggest that his case would turn out any differently that it had before Judge Walsh.208
As soon as Deputy District Attorney Kevin R. Vienna took his turn at the lectern, however, the nature of the questioning was
altogether different. The open-ended hypothetical questions about the intricacies of the AEDPA were gone, replaced by
pointed queries from all three judges demanding to know how *339 Vienna and his office could justify Baca’s perjury-ridden
conviction.209 Judge Fletcher began by asking Vienna to concede that Spira had lied.210 Vienna responded, “I don’t, I--I--I am
not certain that he lied.”211 After further grilling by Judge Fletcher, Vienna admitted that Spira’s testimony was “inconsistent
with the actual facts.”
Judge Kozinksi jumped in and asked if Spira or Vinegrad had been prosecuted for perjury.212 After more stammering, Vienna
acknowledged that neither prosecutor had been prosecuted for perjury or disciplined in any way.213 Judge Kozinski
commented, “[T]he total silence on--on this suggests that this is sort of the way it is done. And, uh, they got caught this time.
And they’re going to keep doing it.”214 When Vienna tried to respond, Judge Kozinski cut him off. “It’s not a reassuring
picture,” he stated.215
Judge Fletcher pointed out that Vienna’s office, under the prior Attorney General, had “fought tooth and nail” to keep away
from the state court, information that exposed the prosecutors as liars and exculpated Baca.216 Judge Kozinski added, “It
would look terrible in an opinion when we--when we write it up and name names.” Vienna stammered, “That uh, uh,” to
which Judge Kozinski responded, “Would your name be on there?”217
After a series of increasingly fraught exchanges, Judge Kozinski concluded by telling Vienna, “talk to the Attorney General
and make sure she understands the gravity of the situation. And understand that we take it very seriously .... It does not speak
well for the prosecutors in California.”218 Judge Kozinski then suggested that Vienna would be wise to “work out something”
with Baca’s lawyer that would obviate the need for the Ninth Circuit to decide the case “[b]ecause I don’t think an opinion is
something that is gonna be very pretty.”219
The Baca argument was widely circulated, causing shame not only to Vienna, but the larger office he was representing. It has
been viewed more than 27,000 times on YouTube.220 While that may not sound like much to a Beyoncé fan, in *340 the legal
world, it is the equivalent of “going viral.”221 And the impact was profound. Less than three weeks later, the Attorney
General’s Office conceded that the conviction was unsound and requested that the federal court grant the writ of habeas
corpus so that Baca could have a new trial.222 Writing about the Baca case some months later in a preface to the Georgetown
Law Journal’s Annual Review of Criminal Procedure, Judge Kozinski commented, “Naming names and taking prosecutors to
task for misbehavior can have magical qualities in assuring compliance with constitutional rights.”223
2. GAGE V. CHAPPELLE
In 1999, Gregory Gage was convicted in Los Angeles Superior Court of nineteen counts of sexual abuse, forcible rape and
lewd acts upon his stepdaughter, Marian.224 Gage married Marian’s mother, Wanda, in 1990, when Marian was a
kindergartner.225 In 1995, after they had moved from Texas to Los Angeles, Wanda discovered that Gage had fathered a child
in an extramarital affair and was supporting the child with their money.226 Wanda filed for divorce and returned to Texas with
Marian.227
In September of 1998, four years after having any contact with Gage, Marian and Wanda “got into an argument over
Marian’s failing grades.”228 Marian, now seventeen-years-old, told Wanda, “You weren’t the one that was being touched *341
on.”229 She told her mother that Gage had abused her for years.230 Wanda reported the allegations to the authorities, and Gage
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was subsequently charged in Los Angeles County, where the abuse had allegedly occurred.231 Prior to trial, the prosecutor
offered Gage a plea deal under which he would have received anything from probation to 6 years in prison.232 Insisting on his
innocence, Gage declined the offer.233
Marian did not testify at the first trial, which ended in a hung jury.234 The state again offered Gage a deal, this time for three
years in prison.235 He again refused, insisting he was innocent.236
Marian testified at the second trial. The alleged abuse had taken place years earlier, and Marian’s medical examination
revealed no signs of sexual abuse.237 No one had ever witnessed an incident of abuse, or heard Marian talk about it except
Wanda. The only evidence that the heinous crimes had occurred was Marian herself, who told the jury that the abuse began in
1993 and continued for several years.238 Gage, who had no criminal record, testified in his defense.239 His attorney also called
a psychologist who had evaluated Gage and determined that he was not a pedophile.
In closing, the prosecutor acknowledged that the case boiled down to Marian’s credibility, stating that, “this was not ... a case
of a tremendous amount of evidence.”240 But, he emphasized, “if you believe what [Marian] said is to be the truth, then you
know that each and every element of these charges has been satisfied.”241 The jury convicted Gage on all counts.242
*342 At sentencing, the prosecutor asked for a lengthy term based on “a statement of aggravating factors, and a victim impact
statement” from Marian.243 The trial judge told the prosecutor that to grant the request, she would need Marian’s medical and
psychological records, none of which had been disclosed before trial.244 The prosecutor objected, but the trial court
nonetheless required him to turn over the complete records and expanded the order to include all statements Marian had made
to the police and any school discipline or juvenile delinquency proceedings.245 After the prosecutor objected again, it was
agreed that the records would be provided to the court only, for in-camera review.246
Defense counsel, who was not provided access to Marian’s records, filed a motion for a new trial, arguing that the jury’s
findings were “contrary to the law and evidence.”247 On November 27, 2000, the trial judge granted the defense’s motion for a
new trial, concluding after her review of the in-camera records that neither Marian nor Wanda was a credible witness.248 The
judge did not disclose the law enforcement, medical, and psychological records it had reviewed in-camera, but summarized
from portions of the records, including:
• After Marian attempted suicide on one occasion, Wanda took her to the hospital. The hospital admission records reflect that
Wanda handwrote that Marian is “a pathological liar and she lives her lies”;
• According to a police report dated November 16, 1998, which was the first time Marian reported the allegations against
Gage to the police in Texas, she told them that Gage “never had intercourse with her and he never tried to have penetration of
any kind and never any kind of oral sex.”;
• While still a minor and shortly before accusing Gage of sexually abusing her, Marian was in a sexual relationship with a
convicted felon and drug addict ten years older than she; when Wanda discovered the relationship, she reported it, and the
felon was sent back to prison. Marian became enraged and again attempted suicide;
• Marian was in therapy for years, but never mentioned the alleged abuse to her therapist.249
Despite these records, the California Court of Appeal reversed the decision granting Gage a new trial. The court had harsh
words only for the trial judge, who “conducted an independent investigation, actively and intentionally soliciting and
considering matters outside of the record. This unauthorized judicial conduct *343 was evidence of an animus inconsistent
with judicial objectivity.”250 The California Court of Appeal took the unusual step of reassigning the case to a different judge
on remand.251 Gage’s conviction was upheld, and he was sentenced to seventy years in prison.252
Gage twice appealed to the California Court of Appeal and later to the California Supreme Court to unseal Marian’s records
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and provide them to his attorney. Gage, represented by counsel, argued each time that he was entitled to review Marian’s
records because they contained impeachment and exculpatory material pursuant to Brady v. Maryland. He also argued that
any privacy right that Marian held in the records must yield to his Sixth Amendment right to effectively confront and crossexamine her.253 Both appellate courts denied Gage’s requests and the records remained sealed and undisclosed.254
On July 11, 2005, Gage, now representing himself because he was not entitled to lawyer, filed a petition for writ of habeas
corpus in federal court.255 In his federal petition, Gage failed to raise either his Brady claim or Sixth Amendment
confrontation claim.256 The magistrate judge issued a Report and Recommendation denying the petition, which was adopted
in full by the district court judge.257 Gage appealed to the Ninth Circuit asking for permission to file a second habeas petition.
The Ninth Circuit determined that Gage had “raised issues that warrant briefing,” and appointed counsel, Tony Faryar
Farmani, to file an application for leave to file a successive habeas petition. Farmini filed a 185-page brief, raising Gage’s
Brady claim among a host of others, and arguing that any delay should be excused because Gage was in fact innocent.258 The
Attorney General’s Office, now representing the state, responded that all of Gage’s new claims were procedurally barred and
that in any event, the AEDPA mandated deference to the California Court of Appeal decision affirming his conviction.
Oral argument took place on April 7, 2015, before Judges Dorothy Nelson, A. Wallace Tashima, and Richard Clifton.259
Gage’s counsel began by emphasizing the egregiousness of the Brady violation and that crucial information directly *344
impacting Marian’s credibility was never presented to the jury.260 But all three judges seemed far more concerned with Gage’s
failure to bring the claim in his first federal petition.261 Asked to explain the delay, counsel replied, “Mr. Gage is partially
blind. Mr. Gage is not all there. And he had lost hope.”262 He added that Gage had been forced to represent himself, and that
he “was not capable of doing his own petition.”263
When Deputy Attorney General David Cook argued on behalf the state, the three-judge panel subjected him to a grilling that
was remarkably similar in tone and substance to the grilling their colleagues had directed at Vienna in the Baca case.264 Judge
Tashima asked Cook to explain why the prosecutor had never provided Marian’s medical and psychiatric records to Gage’s
lawyer prior to trial. Cook tried to parry, stating that a different prosecutor from a different office had tried the case, but
Judge Tashima rejected this explanation.265 When Cook began to explain that Gage forfeited his rights to the records, Judge
Clifton interrupted him, speaking sharply, “That’s not an answer to the question. That’s why they may not have to be turned
over. We’re asking is there a good reason why they shouldn’t be turned over?”266
The bulk of Cook’s response was devoted to arguing that Gage had forfeited his right to see Marian’s records because he had
waited too long to ask for them in federal court.267 As Cook talked, the three judges looked on silently with stony expressions.
When Cook finished, Judge Clifton said, “None of this gives me any more confidence that the conviction is valid.”268 When
Cook tried to respond, Judge Clifton quickly cut him off, “the prosecutor’s job is to do more than secure convictions and your
office to maintain them. I mean, you’re ultimately trying to do justice.”269
Judge Clifton noted that Gage’s conviction “hinged” on Marion’s testimony.270 He expressed concern that the jury would
have reached a different verdict had they known about Marian’s history. After some pressing, Cook conceded that the case
did indeed boil down to Marian’s credibility, at which point Judge Clifton pounced, “the mother identified ... her daughter as
a pathological liar. Isn’t that something you think the jury might be affected by?”271 Cook responded that it *345 might be
something the jury would “take into consideration,” but Judge Clifton was not satisfied. “Does that sound like classic Brady-Brady material?” he asked.272 Cook responded by renewing his argument that Gage’s request was untimely.273 Clifton again
countered, “See now you are getting me to the procedural obstacles again. I’m trying to ask you about the conviction.”274
Cook then took the position that none of the information about Marian was Brady material. If it had been, he argued, the state
appellate courts would have unsealed it and provided it to Gage.275 The federal judges, he argued, should rely on the state
court’s conclusion.276 Judge Clifton, however, was not persuaded. “Appeal judges who made their decision without advocacy
from defense counsel cause defense counsel didn’t have access to the records. Does that trouble you in some fashion? It
troubles me .... I gotta say it doesn’t give me a lot of confidence in the verdict.”277 There was a long pause as Cook, clearly
uncomfortable, stared down at the lectern. Judge Clifton pressed, “Does it give you a lot of confidence in the verdict?”278
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Cook responded, “I’m not here to question”--but again, Judge Clifton cut him off in a sharp tone.279 “On some level you are.
Because the state of California, I mean, they’re classic quotations about the prosecutor’s job. It’s not simply to obtain
convictions, it’s to do justice.”280 He concluded, “I have some concerns about this conviction. I would hope the State of
California has some concerns as well.”281 Finally, Cook offered to take the case back to his supervisor for a second look.282 He
added, “If he is not already listening by the Internet.”283
Five weeks later, the panel issued an order requiring the parties to go to mediation.284 But the mediation, which consisted of a
single ninety-minute conference call, did not result in a decision by the Attorney General’s Office to vacate the conviction or
otherwise settle the case.285 On July 20, 2015, the panel *346 issued a short opinion denying Gage’s application to file a
second habeas petition in federal court.286 Writing for the panel, Judge Tashima quoted extensively from the AEDPA and the
case law interpreting its strict procedural limitations.287 Under the law, Gage could not show that he had diligently pursued his
Brady claim because he had not raised it in his first federal petition.288 The court noted that although Gage’s claim of
innocence was difficult to assess because the state still refused to turn over Marian’s records, it was, at the end of the day,
irrelevant.289 Gage’s untimeliness meant that the doors of the federal courts were closed.290
IV. CAN JUDICIAL SHAMING OF PROSECUTORS BE JUSTIFIED ON EFFICACY AND ETHICAL
GROUNDS?
A. THE EFFICACY OF JUDICIAL SHAMING SANCTIONS
Judicial shaming of prosecutors that is readily available for public viewing on YouTube is a new phenomenon, having begun
less than five years ago.291 Currently, the Ninth Circuit is the only federal appellate court that live-streams oral arguments and
uploads them to YouTube.292 There are too few instances from which to draw any empirical conclusions about the efficacy of
this particular type of shaming sanctions.293 This Article’s narrow focus on the *347 shaming of state prosecutors defending
wrongful convictions on habeas review winnows the numbers even further.294 It is, however, possible to make several
important observations using the Baca and Gage oral arguments. These cases are particularly useful as comparisons because
they share important factual similarities but resulted in opposite outcomes.
On the surface, it is difficult to explain why the judicial shaming sanction worked in Baca and failed in Gage. This is
especially true because the evidence against Baca--excluding the perjured testimony of Spira and the informant--was so much
stronger than the evidence against Gage. Baca, after all, had been identified by name as the killer to the police by one of the
victims before he died.295 Gage’s guilt hinged entirely on whether Marian was a credible *348 witness.296 And while the
panels were composed of different judges, they used the same tactic: demanding that the state provide a moral justification
for its defense of convictions that were unreliable because of grave misconduct and errors by the trial prosecutor.297
The prosecutors assigned to argue the cases were different individuals, but they shared the same professional profile: highachieving, accomplished lawyers whose reputations mattered a great deal to their continued professional success. Moreover,
they both answered to California Attorney General Kamala Harris. As a political figure with even higher aspirations to public
office-- she is currently running for the Senate--Harris, more than anyone else, had every reason to avoid or mitigate a shame
sanction. Given the fact that the same Attorney General’s Office was litigating both cases, it would be logical to expect both
cases to have the same outcome, but they did not.
There are, of course, factual differences. The California state courts declined to condemn the prosecutor in Gage’s case
(indeed, the only person it condemned was the trial judge), while the Court of Appeal in Baca was unsparing it its
condemnation of Vinegrad and Spira.298 It is arguable that the prosecutor’s misconduct in Gage was less egregious, because
he simply withheld a large amount of impeachment evidence rather than actively lying about its existence. It also is possible
that Baca had a stronger legal claim as there appeared to be a slim possibility that the panel could have found a legal way to
grant him relief,299 whereas in Gage there was not.300
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The most likely explanation of the different outcomes, however, turns on the way shame sanctions work--or do not work.
Shaming sanctions require public condemnation.301 They require spectacle.302 The shaming sanction did not work in Gage
because the shame experienced by the Attorney General’s Office was not as public. The Baca case was the subject of media
attention and attracted over 27,000 views on YouTube.303 No one in the media wrote about Gage’s case until months after the
Ninth Circuit ruled against him, and just over 300 people viewed *349 the oral argument.304
While the appellate prosecutor in Gage was clearly shamed before the three-judge panel, the lack of media attention meant
that his superiors-- including the Attorney General herself--did not feel the same sting or have to confront any long-term
repercussions to reputational concerns. The prosecutors simply refused to vacate the conviction or otherwise settle the case,
knowing that the law was on their side. And they were right, as the short written opinion issued soon thereafter by the Ninth
Circuit attests. The case quietly went away.
Concluding that the difference in outcome between Baca and Gage turns on the greater or lesser amount of public exposure
they respectively received is disquieting. The conclusion fits neatly with our country’s long history of shaming sanctions and
the scholarly analysis of their effectiveness, but fits poorly with fundamental American ideals of justice and fair play. It
strongly suggests that in the end, judicial shame sanctions must truly and publicly humiliate prosecutors to have any real
impact, no matter how probable--or even undeniable--the injustice appears.305
If this conclusion is correct, should attorneys directly involved in these kinds of cases try to publicize them, by, for example,
emailing the YouTube link of the oral argument to friends, colleagues, entire law firms or public defender offices, or to a
professional listserv? Should defense counsel contact members of the media directly to see if writers with interest in criminal
justice issues have any interest in covering them?
In our digital media age, attention spans are short. On the other hand, the Internet has given non-celebrities and those
unschooled in traditional journalism an easy way to communicate about an important issue with a broad audience. The Baca
case arguably got the press coverage it did because of Judge Kozinski’s celebrity status in the legal world. As a moral matter,
the outcome of a case should not turn on a judge’s public profile (or lack thereof); but as a practical matter, if that is true,
should an attorney with a wrongfully convicted--and quite possibly innocent--client with no hope of winning in court do her
best to publicize the judicial shaming of her adversary at oral argument to try to get the prosecutor’s office to reconsider its
position?
*350 B. ETHICAL ARGUMENTS APPLIED TO SHAMING PROSECUTORS
As stated earlier, nothing in the Code of Conduct for federal judges expressly prevents them from using shame sanctions
against prosecutors.306 Still, the general language in some of the Canons sweeps broadly enough to suggest that it may be
unethical for judges to use shame sanctions to overtly pressure a party during litigation in an effort to affect the outcome. The
Commentary to Canon 1 of the Code of Conduct states that judges must act “without ... favor” to ensure “public confidence
in the judiciary.”307 Canon 2 mandates that judges “respect and comply with the law and should act at all times in a manner
that promotes public confidence in the integrity and impartiality of the judiciary.”308 These Canons prohibit favoritism and
emphasize the importance of impartiality. If a federal judge strongly suggests, while a case is pending, that one side should
win and that the losing side should abandon its opposition or face a public shaming, that judge is arguably in violation of both
Canons.
On the other hand, were Canons 1 and 2 followed under such a strict interpretation, our system of justice would have broken
down long ago.309 Judges routinely use a combination of cajoling, coercion, and even outright threats to affect the outcomes
of cases that are pending before them. In federal courts across the country, judges regularly make clear, mid-litigation, that
they are dissatisfied or even disgusted with a party’s legal position and threaten to take drastic action.310 Although federal
judges are barred from participating directly in plea *351 negotiations,311 they retain the power to reject any plea agreements
they believe to be unfair or unwise.312 And certainly, there is nothing preventing a federal judge from suggesting to a
prosecutor, as Judge Kozinski did, that he “work something out.” Nor is there anything amiss in referring a case for
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mediation, as Judges Clifton, Tashima, and Nelson did.
Judge Kozinski has made strong public statements in favor of judicial shaming, although he does not use that term.313 In his
much-cited 2015 article in the Georgetown Law Journal, Kozinski discussed the Baca case in detail and concluded, “Judges
who see bad behavior before them, especially prosecutors who wield great power and have greater ethical responsibilities,
must hold the misconduct up to the light of public scrutiny.” He underscored the importance of the fact that the Baca
argument was available on-line, remarking that, “it is far easier to hide an injustice if only the judge and a few lawyers know
about it.”314
Judge Kozinski’s argument draws support from the scholarship of Professor Terry A. Maroney.315 Maroney does not write
specifically about the use of shaming sanctions, but focuses on the closely related issue of righteous judicial anger,316 the
emotion clearly on display during the Baca and Gage oral arguments.317 Maroney draws a clear distinction between judicial
anger that is purposeless and abusive, and righteous judicial anger, which, if managed properly, is crucial to good judging.318
The expressionless, emotionless judge is, she wrote, “a dangerous myth.”319 Quoting Aristotle, Maroney stated that “[v]irtue
consists of feeling anger ‘at the right times, with reference to the right objects, with the right motive, and in the right way.”’320
Judges who employ righteous indignation at an injustice and use that emotion to correct that injustice, Maroney wrote,
“deserve not our condemnation but our approval.”321
Woven together, the Kozinski-Maroney theories about judging and emotion make a powerful argument that shame sanctions
employed against prosecutors *352 during oral argument are not unethical or unwise, but are rather necessary and good.
Under this theory, judges who employ shaming sanctions in wrongful conviction cases are wielding their authority with great
moral purpose.322 Their aim is to correct a miscarriage of justice.323 As Maroney explained, “criminal defendants harmed by
the lies of government actors fall within the judge’s zone of care, for she is responsible for protecting their legal rights.”
More than two hundred years ago, the Supreme Court made it clear that Article III judges have this responsibility, declaring
in Marbury v. Madison “that where there is a legal right, there is also a legal remedy.”324 The duty to safeguard the
constitutional rights of an individual against the abusive use of power by the state is the heart of a federal judge’s mandate. If
shaming sanctions are required to fulfill that mandate, they may well be justified.
CONCLUSION
This Article has explored a new shaming sanction in which federal judges use oral argument as a public theatre to humiliate
prosecutors who insist on defending wrongful convictions. The Article details two recent Ninth Circuit cases in which
separate panels of appellate judges employed this shame sanction to try convince prosecutors withdraw their opposition to the
overturning of these convictions. In both cases, it was clear that because of the passage of the AEDPA, the law made it
impossible for the judges to rely upon a legal analysis to undo what all six clearly viewed as an injustice.
Because these kinds of cases arise only in a very specific set of legal and factual circumstances--federal habeas review of
state court convictions infected with gross misconduct by the state--this shame sanction will be relatively rare. But I predict
that other federal appellate judges, similarly frustrated by their AEDPA-imposed powerlessness, will follow suit in the
coming years. As more circuits adopt the practice of live streaming oral arguments and posting them to YouTube and more
judges become comfortable using social media as a tool, the opportunity and ability to employ this sanction will increase.
Shame sanctions have a long and infamous history in our country. In the colonial era they were used to heap ignominy and
physical pain on criminal offenders.325 In the 1800s, they virtually vanished with the rise of the prison industrial complex.326
When some trial judges began to publicly shame criminal *353 offenders in the early 1990s, many recoiled instinctively,
viewing this type of punishment as grotesque and unbefitting our more civilized society.327 This Article has reviewed the rich
history of scholarship on the efficacy and morality of these recent shame sanctions. I conclude that the arguments against
them, while viscerally appealing, are unconvincing. Shame sanctions are far preferable to the documented horrors of prison
and are certainly no more degrading. Nor are they reserved for the poor and therefore class-bound, as they used to be.
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The Article then turned to the application of shame sanctions against prosecutors by judges in wrongful conviction cases that
were in ongoing litigation. The Article concluded that there were simply too few examples at this point to draw any
conclusions about the efficacy of this sanction: in one case it achieved the desired result and in the other it did not. The
Article did observe, however, that for this type of sanction to be effective, it needs a broad audience--not to smear the
reputation of the individual prosecutor but to make it untenable for a prosecutor’s office to fail to consider the ethical and
practical considerations of using procedural rules to gloss over a gross miscarriage of justice. The history of shaming
sanctions suggests that without public condemnation, there are too few incentives, and too much risk, for some prosecutors to
take these concerns into account.
At the heart of this Article is the question whether judges who employ shame sanctions are acting ethically. It is a tricky
question, because shame sanctions are arguably an “extrajudicial” remedy--a last-ditch effort to change the outcome of a case
where the law clearly does not support a reversal. Some might argue that cajoling, bullying, and publicly humiliating
prosecutors into dropping cases mid-litigation is an abuse of judicial authority, particularly because there is no other way to
achieve the same result. I conclude that while this argument has merit, it is not a winning one. Federal judges have a sacred
duty to safeguard constitutional rights. The Founders gave them life-tenure to ensure that they would have the freedom to
carry out that all-important responsibility.328 It is my view that when federal judges shame prosecutors who defend wrongful
convictions, they do so in furtherance of their judicial duties, not in contravention of them. It is inherently within the power
of the federal courts to protect defendants against the abuses of the state. By employing shame sanctions in this very specific
way, federal judges are doing exactly that.
Footnotes
a1
Lara A. Bazelon, the former director of the Loyola Law School Project for the Innocent, is a criminal defense attorney and the cochair of the American Bar Association’s Ethics, Gideon & Professionalism Committee. I am indebted to the June 2015 participants
in the Fordham Criminal Justice and Ethics Schmooze: Miriam Baer, Tony Brown, Alafair Burke, Tucker Carrington, Jim
Coleman, Russell Gold, Bruce Green, Janet Hoeffel, Peter Joy, Laurie Levenson, Kate Levine, Samuel J. Levine, Saira Mohamed,
Jane Campbell Moriarty, Jenny Roberts, Rebecca Roiphe, Victoria Root, Jed Shugerman, Kami Chavis Simmons, Abbe Smith,
Alice Woolley, and Ellen Yaroshefsky. Thank you to John Cline for helpful comments on an early draft. My great thanks to Bruce
Green and to Peter Joy; Bruce for providing the inspiration for this Article and Peter for helping in its shaping and revision, both
for giving so much of their time and attention. And as always to Richard Bazelon, faithful reader and eagle-eyed editor. © 2016,
Lara Bazelon.
1
See James Q. Whitman, What Is Wrong with Shame Sanctions?, 107 YALE L. J. 1055, 1056 [hereinafter Whitman, What Is
Wrong] (noting the “scattered reappearance of shame sanctions in the United States” in the 1990s and the eagerness of the media to
report on the phenomenon); But see Experts Question Whether They Solve Problems, NAT’L J. (Sept. 9, 2013),
http://www.nationaljournal.com/domesticpolicy/can-public-shaming-be-good-criminal-punishment-20130909
[http://perma.cc/WW66-29DM] (“Even though scattered sentences have been reasonably high profile, public shaming is currently
not a common practice in the U.S. criminal justice system.”).
2
Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880, 1943 (1991) [hereinafter Massaro,
Shame] (arguing against the use of shaming sanctions because there is no evidence that they are effective and because they
“authorize[] public officials to search for and destroy or damage an offender’s dignity”); Dan M. Kahan, What Do Alternative
Sanctions Mean?, 63 U. CHI. L. REV. 591, 638-39 (1996) (arguing that while the empirical data is lacking, shaming sanctions
have a pragmatic utility and “should work” because debasement of the offender before his peers is an effective deterrent to future
wrongdoing and will make others more inclined to follow the law by “dramatically underscoring the disgrace of lawbreaking”)
[hereinafter Kahan, Alternative Sanctions]; Whitman, What Is Wrong, supra note 1, at 1058 (“There is simply no straightforward
liberal tradition, I argue, that shows why engaging in the mere public display of offenders, without corporeal violence, is wrong.”);
Dan Markel, Are Shaming Punishments Beautifully Retributive?, 54 VAND. L. REV. 2157, 2166 (2001) [hereinafter Markel,
Beautifully Retributive] (arguing that “a liberal theory of the state proscribes the use of shaming as a practice of retribution”); Dan
M. Kahan, What’s Really Wrong with Shaming Sanctions, 84 TEX. L. REV. 2075, 2086-87 (reversing his earlier position to argue
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against shaming punishments because they “resonate with significations of hierarchy and community that assault the sensibilities
of those who favor more egalitarian and individualistic forms of social organization”).
3
Shaming sanctions have a long tradition in American culture, dating back to colonial times. In the seventeenth and eighteenth
centuries, shaming sanctions often involved branding, maiming, or violence in the public square, such as putting the offender “in
the stocks” and having the populace throw rotten fruit and other produce at him. Massaro, Shame, supra note 2, at 1912-15.
Nonetheless, the primary injury was often to one’s psyche. Kahan, Alternative Sanctions, supra note 2, at 611 (“For early
Americans, shame was an even more salient ingredient of corporal punishment than was physical pain. ‘The sting of the lash and
the contortions of the stocks were surely no balm, but even worse for community members were the piercing stares of neighbors
who witnessed their disgrace and with whom they would continue to live and work.”’) (quoting Adam J. Hirsch, The Rise of the
Penitentiary: Prisons and Punishments in Early America 4-5, 38 (1992). Shaming sanctions largely disappeared with the rise of
incarceration, “developed as a partial response to the perceived decline in the utility of shaming punishments.” Markel, Beautifully
Retributive, supra note 2, at 2169. By the late 1800s, shaming punishments had largely disappeared from the legal landscape. Id. at
2169-70.
4
Massaro, Shame, supra note 2, at 1884 (“The revival of shaming springs from profound and widespread dissatisfaction with
existing methods of punishment.”).
5
Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. CHI. L. REV. 733, 737 (1998).
6
Matt
Berman,
Can
Public
Shaming
Be
Criminal
Punishment,
NAT’L
J.
http://www.nationaljournal.com/s/71318/can-public-shaming-be-good-criminal-punishment?mref_scroll
WU88].
7
Patt Morrison, Is Public Shaming Fair Punishment?, L.A. TIMES (May 24, 2014), http://www.latimes.com/opinion/op-ed/la-oe0525-morrison-sentencing-shame-judges-20140525-column.html [http://perma.cc/3JVZ-KCHW].
8
The man was twenty-four year old Shawn Gementera. After he and a co-defendant “pilfered letters from several mailboxes,” he
pleaded guilty to one count of mail theft in federal court. United States v. Gementera, 379 F.3d 596, 598 (9th Cir. 2004). United
States District Court Judge Vaughn Walker sentenced Gementera to two months imprisonment and three years of supervised
release. Id. at 598. As a condition of supervised release, Judge Walker required Gementera to stand outside a post office for eight
hours wearing a sandwich board proclaiming his crime. Id. In imposing this condition, Judge Walker stated that Gementera
needs to understand the disapproval that society has for this kind of conduct, and that’s the idea behind the humiliation. And it
should be humiliation of having to stand and be labeled in front of people coming and going from a post office as somebody who
has stolen the mail.
Id. at 601. Gementera appealed the sandwich board aspect of the punishment, arguing that it violated the Eighth Amendment. Id. at
598-99. The Court of Appeals rejected that argument and upheld the sanction noting that Gementera “offered no evidence
whatsoever, aside from bare assertion, that shaming sanctions violate contemporary standards of decency. But the occasional
imposition of such sanctions is hardly unusual, particularly in our state courts.” Id. at 608 (internal citations omitted). One month
after fulfilling the sandwich board condition of his supervised release, Gementera stole mail again and found himself back before
Judge Walker, “who expressed frustration that his original sentence had not ‘put [Gementera] on the right track.”’ Lauren M.
Goldman, Trending Now: The Use of Social Media Websites in Public Shaming Punishments, 52 AM. CRIM. L. REV. 415, 416
(2015) [hereinafter Goldman, Trending Now].
9
Dan M. Kahan & Eric A. Posner, Shaming White Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines,
42 J. L. & ECON. 365, 365-67 (1999) (recounting a decision by Hoboken, New Jersey authorities to demand that white collar
defendants convicted of public urination “mop the city’s streets, and for good measure bought ads in the offenders’ local
newspapers”).
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(Sept.
9,
2013),
[http://perma.cc/9YJT-
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10
Massaro, Shame, supra note 2, at 1886-87.
11
Id. at 1887-88 (describing a case in which a repeat sex offender was required by the judge to post signs at his home and on his car
that read “DANGEROUS SEX OFFENDER--NO CHILDREN ALLOWED”).
12
One legal scholar argued for a form of this type of shame sanction, claiming that prosecutors would be deterred if appellate judges
“named names” by referring to the individual prosecutor who committed misconduct in published opinions rather than referring to
that individual as simply “the prosecutor,” the “Deputy District Attorney,” or “the assistant United States Attorney.” Adam M.
Gershowitz, Prosecutorial Shaming: Naming Attorneys to Reduce Prosecutorial Misconduct, 42 U.C. DAVIS L. REV. 1059,
1061-64 (2009) [Gershowitz, Prosecutorial Shaming]. One of the main points of Gershowitz’s article, however, was that appellate
court judges very rarely “call out the offending prosecutors by name in judicial opinions” and that “many judges go to great lengths
to redact the names of misbehaving prosecutors from trial transcripts quoted in judicial opinions.” Id. at 1062. In response,
Gershowitz’s article called for law schools to create Prosecutorial Misconduct Projects, to compile the data on cases reversed for
prosecutorial misconduct and publish the names of the prosecutors who were at fault. Id. at 1064.
13
Maura Dolan, Clashing Courts: Law Restricts Federal Judges’ Ability to Intervene in State Court Cases, L.A. TIMES (Sept. 5,
2015), http://www.latimes.com/local/crime/la-me-courts-clash-20150906-story.html [http://perma.cc/Z3T9-TV68] [hereinafter
Dolan, Clashing Courts] (quoting state appellate justice Anthony Kline as saying that AEDPA “has taken the federal courts out of
the business of habeas corpus”); Hon. Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity:
The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly
Unfortunate Consequences, 113 MICH. L. REV. 1219, 1221 (2015) [hereinafter Reinhardt, The Demise of Habeas] (explaining
that following the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and a series of Supreme Court
cases interpreting the law “in the most inflexible and unyielding manner possible,” state court decisions on questions of federal
constitutional law are “nearly unreviewable by the federal judiciary” in post-conviction cases).
14
In a case that was argued before a panel of Ninth Circuit judges on April 7, 2015, the deputy attorney general, David C. Cook, fell
silent for several seconds after Judge Clifton expressed moral outrage at his argument and stammered repeatedly under grilling by
Clifton and his colleagues. Transcript of Oral Argument at 19-20, Gage v. Chappell, 793 F.3d 1159 (9th Cir. 2015) (transcript on
file with the author) [hereinafter Gage Transcript].
15
United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013) (Kozinski, J., dissenting from an order denying a petition for rehearing
en banc).
16
Transcript of Oral Argument at 27, Baca v. Adams, 777 F.3d 1034 (9th Cir. 2015) (transcript on file with the author) [hereinafter
Baca Transcript] (Judge Wardlaw, responding to the prosecutor’s claim that the state courts did not condone the prosecutorial
misconduct in Baca’s case, “No. That’s not clear. Because they out and out say this guy--the prosecutor lied on the stand. And he-by his lies bolstered the credibility of a jailhouse snitch. But it’s--it’s--it didn’t prejudice the trial. So that’s condoning it .... I mean,
I understand why [the state court judges] do that. I mean, they’re elected judges. They’re not gonna be reversing these things. So-but it condones it by not reversing the conviction on that basis and making this State do it right without the lies.”).
17
Marbury v. Madison, 5 U.S. 137, 163, 177 (1803) (discussing the inherent power of Article III judges “to say what the law is” and
declaring that “‘it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at
law, whenever that right is invaded”’) (quoting WILLIAM BLACKSTONE, COMMENTARIES NO. 3 23 (1765)); THE
FEDERALIST NO. 78, at 398 (Alexander Hamilton) (Garry Wills ed., 1982) (stating “[t]hat inflexible and uniform adherence to
the rights of the constitution and of individuals ... we perceive to be indispensable in the Courts of justice”); Rebecca L. Brown,
Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513, 1545 n.147 (1991) (noting that the very reason common law
courts arose “demonstrate their historically close connection to the protection of individual rights”); Akhil Reed Amar, Of
Sovereignty and Federalism, 96 YALE L. J. 1425, 1483 (1987) (discussing the “special role of federal judges in protecting
individual rights against states” in the context of the Eleventh Amendment). For an insightful analysis of “how energetic the
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federal judicial role must be in protecting individual rights” against the state in the context of state prisoners seeking federal habeas
corpus relief, see J. Richard Broughton, Habeas Corpus and the Safeguards of Federalism, 2 GEO. J. L. & PUB. POL’Y 109
passim (2004) [hereinafter Broughton, Habeas Corpus].
18
OXFORD ENGLISH DICTIONARY (1st ed. 2001).
19
Id.
20
BLACK’S LAW DICTIONARY (10th ed. 2015).
21
Deni Smith Garcia, Three Worlds Collide: A Novel Approach to the Law, Literature, and Psychology of Shame, 6 TEX.
WESLEYAN L. REV. 105, 121 (1999) [hereinafter Garcia, Three Worlds]; see also Toni M. Massaro, The Meanings of Shame:
Implications for Legal Reform, 3 PSYCHOL. PUB. POL’Y & L. 645, 648 (1997) [hereinafter Massaro, The Meanings of Shame].
22
Peter H. Huang & Christopher J. Anderson, A Psychology of Emotional Legal Decision Making: Revulsion and Saving Face in
Legal Theory and Practice, 90 MINN. L. REV. 1045, 1064 (2006) (noting that shame can teach appropriate boundaries and
promote self-control); W. Bradley Wendel, Nonlegal Regulation of the Legal Profession: Social Norms in Professional
Communities, 54 VAND. L. REV. 1955, 1988-89 (2001) (using the “honor/shame model” to explain how a community exerts
behavioral control over its members).
23
Garcia, Three Worlds, supra note 21, at 124 (arguing that shaming sanctions work best in a family setting where the parents
provide unconditional love and set moral limits without ostracizing the offender so that “the shamed person most likely is forgiven
and is able to return to a normal relationship within the family unit”).
24
Gershowitz, Prosecutorial Shaming, supra note 12, at 1088-89.
25
Massaro, The Meanings of Shame, supra note 21, at 685 (“It may also be most effective, though more controversial, when it is
targeted at the least dangerous offenders, that is, status conscious, shame-sensitive offenders such as middle-class, first-time
offenders.”).
26
See id.; see also Whitman, What Is Wrong, supra note 1, at 1066 (noting the rise of the public, media-saturated coverage of arrest
and subsequent “perp walk” of defendants accused of financial crimes under the administration of then-United States Attorney
Rudolph Guiliani); Palma Paciocco, Pilloried in the Press: Rethinking the Constitutional Status of the American Perp Walk, 16
NEW CRIM. L. REV. 50, 86 (2013) (“[A]rgu[ing] that the perp walk is, in effect, a modern-day shaming sanction.”).
27
Gershowitz, supra note 12, at 1090-91 (“In a profession where reputation is the most valuable commodity, identifying perpetrators
of prosecutorial misconduct will be embarrassing.”).
28
See supra note 2.
29
Kahan, Alternative Sanctions, supra note 2, at 638 (“Does shame deter criminality? The short and simple answer is that we don’t
know. Shaming penalties have not yet been subject to rigorous empirical evaluation.”).
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30
Massaro, The Meanings of Shame, supra note 21, at 648 (stating that “[p]sychological accounts of shame suggest that the
behavioral consequences are unpredictable”); Kahan, Alternative Sanctions, supra note 2, at 638 (1996) (stating that, based on the
empirical data or lack thereof, “we don’t know” whether shame sanctions deter criminal conduct).
31
Someone so extreme is arguably sociopathic and an extremely rare case. More common are people who have an innate sense of
shame that is not triggered by classic shame triggers. For example, in some poor, crime-ridden communities where arrests and
convictions are regular occurrences, getting arrested and convicted for a crime will not trigger the shame that a middle-class person
may feel “at even being accused of a quite minor offense.” Massaro, The Meanings of Shame, supra note 21, at 669.
32
Kahan & Posner, Shaming White Collar Criminals, supra note 9, at 371-72.
33
Doron Teichman, Sex, Shame, and the Law: An Economic Perspective on Megan’s Laws, 42 HARV. J. LEGIS. 355, 391 (2005).
34
Kahan & Posner, Shaming White Collar Criminals, supra note 9, at 365, 370-71. The story about the “incontinent yuppies” is told
at the outset Kahan and Posner’s article. Wall Street stockbrokers and their friends were urinating in public outside of bars in
Hoboken, New Jersey. As punishment, they were ordered to clean the streets and take out ads in their local newspapers. Id. at 365.
Kahan and Posner wrote, “To be sure, the spectacle of Wall Street broker scrubbing Hoboken’s streets gratified the public demand
for retribution. But it also solved the underlying crime problem. Today, Hoboken’s streets sparkle.” Id. at 365-66; see also
Massaro, Shame, supra note 2, at 1898 (citing a study by showing that social opprobrium is most effective in altering the conduct
of those who are the “most strongly socialized”).
35
Kahan & Posner, Shaming White Collar Criminals, supra note 9, at 370-71.
36
Id. at 371; see also Garcia, supra note 21, at 107 n.13, 111 (summarizing scholarship endorsing micro-targeted shame sanctions).
37
Gershowitz, supra note 12, at 1090 (stating that “some judges have recognized that the most powerful audience is not the general
community but rather the offender’s professional community”).
38
Id.
39
See supra note 2.
40
MARTHA CRAVEN NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW 230-31, 278-79, 297
(2004).
41
Whitman, What Is Wrong, supra note 1, at 1068-69 (“The government, we would say, properly has the power to deprive offenders
only of property or liberty, but never of dignity.”); Paciocco, Pilloried in the Press, supra note 26, at 86 (“Shaming sanctions quite
literally heap insult upon injury. Indeed, sometimes the insult is the injury, as in the case of another well-known American literary
character, Hester Prynne.”).
42
Whitman, What Is Wrong, supra note 1, at 1069 (describing “the great era of reformist debate over shame sanctions, the period
roughly 1750-1850” and the condemnation of shame sanctions as “promoting public indecency or a surrender to our animal
nature”).
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43
Massaro, Shame, supra note 2, at 1913-14 (describing these and other forms of physically shaming punishments in the Colonial
era); MYRA C. GLENN, CAMPAIGNS AGAINST CORPORAL PUNISHMENT: PRISONERS, SAILORS, WOMEN, AND
CHILDREN IN ANTEBELLUM AMERICA 111 (1984); Michael Lee Dynes & Henry Edward Whitmer, The Scarlett Letter of
the Law: A Place for Shaming Punishments in Arizona, 6 PHX. L. REV. 513, 515 (2013) (“Use of public shaming punishments
slowly diminished over time and largely vanished with the rise of the prison in the nineteenth century.”).
44
MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 115-16 (1977) (“The scaffold, where the
body of the tortured criminal had been exposed to the ritually manifested force of the sovereign, the punitive theatre in which the
representation of punishment was permanently available to the social body, was replaced by a great, enclosed, complex and
hierarchical structure that was integrated into the very body of the state apparatus.”).
45
See id. at 233 (“The prison is like a rather disciplined barracks, a strict school, a dark workshop, but not qualitatively different.
This double foundation--juridico-economic on the one hand, technico-disciplinary on the other--made prison seem the most
immediate and civilized form of penalties.”).
46
Alarmingly, however, this realization was a long time in coming. Public lynchings were celebrated in America through the 1920s.
See David Garland, Penal Excess and Surplus Meaning: Public Torture and Lynchings in Twentieth Century America, 39 LAW &
SOC’Y REV. 793, 796 (2005) (describing public executions “taking place in the first decades of the twentieth century, in longsettled regions of the world’s most advanced capitalist nation, in front of well-dressed crowds who traveled in excursion trains and
automobiles, clicked Kodak cameras, and drank Coca-Cola”). The targets were primarily African-American men and the lynchings
occurred primarily in the Deep South as a way to terrorize and repress the black community. See generally AMY L. WOOD,
LYNCHING AND SPECTACLE: WITNESSING RACIAL VIOLENCE IN AMERICA, 1890-1940 (2011) (describing the social
acceptability of public lynching and its role as a form of public entertainment); SHERRILYN A. IFILL, ON THE COURTHOUSE
LAWN: CONFRONTING THE LEGACY OF LYNCHING IN THE TWENTY-FIRST CENTURY (2007) (describing an
attendance of thousands, including women and children, and the practice of immortalizing lynchings with photographs and
keepsakes). But the United States also practiced lynching in the western frontier states, with a sizeable number of Mexican and
other immigrant victims.
47
See Massaro, Shame, supra note 2, at 1942-43 (arguing that shaming is too “cruel” to be “part of the sentencer’s arsenal” because it
empowers public officials to “search for and destroy or damage an offender’s dignity,” which she deems “an Orwellian prospect”);
see also Markel, Beautifully Retributive, supra note 2, at 2178 (describing shame sanctions as “marked by two features: first, there
is an attempt to debase, degrade, or humiliate the offender; and second, the degradation occurs before the public eye, often but not
always with the aid of the public”).
48
See Massaro, Shame, supra note 2, at 1917 (stating that, in the small, interdependent colonial culture, shaming was used to drive
home the importance of “socially correct behavior” and the authorities who meted out the shaming punishments coupled them with
“established rituals for reclaiming the shamed one, should she prove herself worthy”); see also Garcia, Three Worlds, supra note
21, at 119-20 (stating that “with the modern lock ‘em up and throw away the key political atmosphere, reintegrative shaming is not
a popular or politically profitable enterprise”).
49
See Kahan & Posner, White Collar Criminals, supra note 9, at 374 (“Offenders nearly always choose shame over imprisonment
when given the choice.”).
50
See, e.g., Arizona Moves 700 Inmates After Violence Inside Prison, N.Y. TIMES (July 4, 2015),
http://www.nytimes.com/2015/07/05/us/arizona-moves-700-inmates-after-violence-inside-prison.html
[http://perma.cc/A6TKC9R4] (describing a prison riot that took hours to bring to an end and resulted in severe property damage and the mass transfer of
inmates); Joseph Spector, Upstate N.Y. Prison has Recent History of Violence, USA TODAY (June 13, 2015),
http://www.usatoday.com/story/news/nation/2015/06/13/new-york-prison-history-clinton-correctional-facility/71168250
[http://perma.cc/MVW2-E6C7] (documenting a forty-five percent uptick in violence between 2012 and 2013 at the Clinton
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Correctional Facility in New York). Christopher Zoukis, a former prison inmate and the author of the 2014 book College for
Convicts: The Case for Higher Education in American Prisons, wrote, “American prisons foster a culture of violence, hatred,
bigotry and dominance. They take the criminally inclined, and the not so inclined, and turned them into hardened convicts who,
after a period of years, become dangerous men.” Christopher Zoukis, The Dirt Wars: An Intimate Look at Convict Culture in
American Prisons, HUFFINGTON POST: THE BLOG (Aug. 12, 2014), http://www.huffingtonpost.com/christopher-zoukis/thedirt-wars-an-intimate_1_b_5672848.html [http://perma.cc/6B5F-KV9A]. That horrific violence and rape are prevalent in prison is
now a widely accepted fact. In 2003, then-President George W. Bush signed the Prison Rape Elimination Act, which passed
Congress with strong bipartisan support. Valerie Jenness & Michael Smyth, The Passage and Implementation of the Prison Rape
Elimination Act: Legal Endogeneity and the Uncertain Road from Symbolic Law to Instrumental Effects, 22 STAN. L. & POL’Y
REV. 489, 489-90 (2011) (stating that the enactment of PREA affirmed “prison rape as a national social problem”). The PREA
created a commission of lawmakers, rape survivors, and experts, who proposed standards to uncover, expose, and respond to
prison rape in state and federal penitentiaries. Id. at 490. The Department of Justice formally adopted the standards on August 20,
2012. Prison Rape Elimination Act, NAT’L PREA RES. CTR., http://www.prearesourcecenter.org/about/prison-rape-eliminationact-prea [http://perma.cc/62TM-TDLM] (last visited Sept. 29, 2015). But the problem of physical assaults and rape in prison
continues. See, e.g., Dan Harris, Prison Rape Widely Ignored by Authorities, ABC NEWS (Apr. 16, 2015),
http://abcnews.go.com/WNT/story?id_131113 [http://perma.cc/8J8D-YNP7]. According to the non-profit group Stop Prisoner
Rape, over 200,000 men are raped in prison every year. Id. The rapes are often known to the prison authorities, who ignore them.
Id. (quoting Harvard University Professor James Gilligan as stating, “[a]s long as [the sexually predator inmates] cooperate, the
prison authorities will permit them to have their victims”). For a compelling analysis of the harm done to an offender in prison and
to his family as a collateral consequence, see generally Jalila Jefferson-Bullock, The Time is Ripe to Include Considerations of the
Effects on Families and Communities of Excessively Long Sentences, 83 UMKC L. REV. 73 (2014).
51
The “great liberal arguments” are found in the philosophy made famous by John Locke and adopted by the Founders, which
viewed human beings as essentially rational, equal, and independent, with the right to “Life, Health, Liberty and Possessions,”
JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (10th ed.) (1689).
52
Whitman, What Is Wrong, supra note 1, at 1058 (“Shame sanctions were abolished for reasons that have little to do with
contemporary American liberal theories.”).
53
Id. at 1073.
54
See Wendy N. Espeland & Berit I. Vannebo, Accountability, Quantification, and Law, 3 ANN. REV. L. & SOC. SCI. 21, 26-28
(2007) (discussing sentencing guidelines more generally and stating that, in creating the Federal Sentencing Guidelines,
“extraordinary effort and resources were required to promote and create uniform sentencing”).
55
Whitman, What Is Wrong, supra note 1, at 1073-74.
56
Id. at 1082 (arguing that the belief in the profound dignity of the human body is entirely outdated now that “[w]e put little effort
into raising ourselves above the animal life of our bodily functions”).
57
Kahan & Posner, Shaming White Collar Criminals, supra note 9, at 374 (“Imprisonment shames people, and this will have the
same differential effects as a pure shaming penalty, but we do not let that bother us too much.”).
58
Garcia, Three Worlds, supra note 21, at 113 (“In today’s secular world of gated communities, who cares if Hester slept with the
minister?”).
59
Goldman, Trending Now, supra note 8, at 415 (describing the impact of a hypothetical shaming punishment posted on a Facebook
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account).
60
Whitman, What Is Wrong, supra note 1, at 1057.
61
See, e.g., Code of Conduct for United States Judges, UNITED STATES COURTS, http://www.uscourts.gov/judgesjudgeships/code-conduct-united-states-judges [http://perma.cc/SG43-87XW] (last visited Sept. 30, 2015).
62
Paul v. Davis, 424 U.S. 693, 712 (1976) (holding that publicizing the names and photographs of people who shoplift does not
violate their rights under the Due Process Clause of the Fourteenth Amendment).
63
This Article defines “wrongful conviction” broadly to include all defendants who were convicted of crimes in violation of their
constitutional rights whether or not they are able to demonstrate factual innocence.
64
See Terry A. Maroney, Angry Judges, 65 VAND. L. REV. 1207, 1232-33, 1233 n.149 (2012) [hereinafter Maroney, Angry Judges]
(providing a host of examples in which trial judges lambasted prosecutors in their courtrooms).
65
See, e.g., People v. Hill, 952 P.2d 673, 698 (Cal. 1998) (naming the prosecutor, Deputy District Attorney Rosalie Morton, detailing
her numerous acts of misconduct in a capital case, reversing the conviction and the death sentence, taking judicial notice of
previous cases in which she had committed misconduct, and concluding “Morton’s actions, at times childish and unprofessional
and at other times outrageous and unethical, betrayed her trust as a public prosecutor. Her method were deceptive and
reprehensible.”); United States v. Tavera, 719 F.3d 705, 708 (6th Cir. 2013) (naming the prosecutor, Assistant United States
Attorney Donald Taylor, castigating him for withholding crucial exculpatory information from the defense, finding a due process
violation and reversing the conviction, and recommending that Taylor’s office “conduct an investigation of why this prosecutorial
error occurred and make sure that such Brady violations do not continue”).
66
Perhaps the two most notorious cases in recent memory involve the public shaming and disgrace of Michael B. Nifong and Ken
Anderson. In 2006, Nifong, then the elected District Attorney for Durham, North Carolina, indicted three Duke University lacrosse
players for raping a stripper who had danced at a team party. Shaila Dewan, Duke Prosecutor Jailed; Students Seek Settlement,
N.Y. TIMES (Sept. 8, 2007), http://www.nytimes.com/2007/09/08/us/08duke.html [http://perma.cc/E369-E2UU]. When the
woman was unable to identify her attackers, Nifong showed her photographs only of lacrosse players, an extremely suggestive
practice that violated the guidelines of his own office. Id. The players each had strong alibis, which Nifong discounted. Id. The
DNA evidence did not back up the rape claim, and Nifong withheld it from the defendants. Id. Even after the woman changed her
story, Nifong insisted on going forward with the kidnapping charges against the three young men. Id. Eventually, Nifong turned
the case over to the state attorney general, who concluded that the lacrosse players were innocent and Nifong was a “rogue
prosecutor.” Id. The North Carolina state bar brought charges against Nifong and disbarred him. Id. Nifong was prosecuted for
withholding DNA evidence from the defense and lying to the court by stating that he had turned the evidence over. Judge
Sentences Ex-Durham County District Attorney Nifong to Jail for a Day, FOX NEWS (Aug. 31, 2007),
http://www.foxnews.com/story/2007/08/31/judge-sentences-ex-durham-county-district-attorney-nifong-to-jail-for-day.html
[http://perma.cc/G2S3-KH4E]. Nifong was sentenced to serve one day in jail. Id. Ken Anderson, once the District Attorney for
Williamson County, Texas, and a former Texas Prosecutor of the Year, charged Michael Morton for the brutal murder of Morton’s
wife in 1985. Anderson told the jury that Morton masturbated over his dead wife’s body before going to work as usual. Raymond
Bonner, Reversal of Fortune: A Prosecutor on Trial, PRO PUBLICA (Apr. 29, 2013), http://www.propublica.org/article/reversalof-fortune-a-prosecutor-on-trial [http://perma.cc/R93E-2D3A]. Morton was convicted in 1986, and sentenced to life in prison.
Anderson obtained the conviction by withholding crucial exculpatory evidence. Id. He never told Morton’s attorneys that Morton’s
son told his grandmother that a “monster” had killed his mother while his father was not home, that the victim’s mother told police
that Morton could not have committed the crime, that a man had been seen in the woods by the house at the time of the killing and
also had a green van. Id. In 2011, Morton was released after the Innocence Project demanded the retesting of a bloody bandana
found 100 yards from the crime scene that came back matching the victim’s blood and that of the true attacker. Id. He had served
twenty-five years in prison. Id. Meanwhile, Anderson went on to become a judge. Morton’s attorneys demanded that a special
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prosecutor investigate Anderson and a special Court of Inquiry was convened. At the end of the process, the judge ruled that
Anderson had broken state law and committed perjury by lying to the court. Anderson was arrested, convicted, and sentenced to
serve ten days in jail. His license to practice law was revoked and he resigned from the bench. Jeremy Heallen, Former Texas
Judge Jailed, Disbarred for Hiding Evidence, LAW360 (Nov. 8, 2013), http://www.law360.com/articles/487677/former-texasjudge-jailed-disbarred-for-hiding-evidence [http://perma.cc/P9AU-T54P] [hereinafter Heallen, Former Texas Judge].
67
See Gershowitz, supra note 12, at 1076-77 (citing studies showing that judges name prosecutors in only a small fraction of cases);
Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B. U. L. REV. 125, 17273 (2004) (stating that “appellate court opinions invariably neglect to identify the prosecutor by name”); Lorraine Morey, Keeping
the Dragon Slayers in Check: Reining in Prosecutorial Misconduct, 5 PHX. L. REV. 617, 621-26 (2012) (detailing specific cases
in which appellate courts reversed convictions because of prosecutorial misconduct without naming the offending prosecutor).
68
Gershowitz, Prosecutorial Shaming, supra note 12, at 1068-72. Gershowitz describes several extreme instances in which judges
have redacted prosecutors’ given names from court transcripts and “referred to them dozens of times as the ‘State’ or the
‘prosecutors,’ even where, as a linguistic matter, it would have made far more sense to identify them by name.” Id. at 1078.
69
See Martha Bellisle, Investigation: State’s Prosecutors Rarely Face Discipline for Misconduct, PENINSULA DAILY NEWS
(Aug. 3, 2015), http://www.peninsuladailynews.com/article/20150804/NEWS/308049990 [http://perma.cc/G5VY-TGFD]
(“National studies ... show sanctions are rarely imposed and when they are, they amount to a ‘slap-on-the-wrist,’ according to the
Center for Prosecutor Integrity.”); Fred C. Zacharias & Bruce Green, The Duty to Avoid Wrongful Convictions: A Thought
Experiment in the Regulation of Prosecutors, 89 B. U. L. REV. 1, 11-12 (2009) (stating that “professional discipline has had little
practical effect in constraining prosecutorial behavior that risks faulty convictions”). One notable exception is the strong public
action taken by Federal Trial Court Judge Emmet Sullivan, who presided over the trial of then-Senator Ted Stevens for corruption
by allowing his contractor friend George Allen to do extensive work on his home for well-below market price. Hon. Alex
Kozinski, Criminal Law 2.0, 44 GEO. L. J. ANN. REV. CRIM. PROC. Iii, xxiii-xxiv, xiii-iv (2015) [hereinafter Kozinski,
Criminal Law] (describing the botched prosecution and lauding Judge Sullivan for his “extraordinary persistence and ...
courageous intervention”). The case against Stevens turned on Allen’s testimony. Id. at xxiii. After the jury convicted Stevens,
Judge Sullivan learned that the Government withheld evidence that Allen had initially made a statement that Stevens overpaid him
and that Allen himself was under investigation for other criminal activity. Id. at xxiii-iv; see also Neil A. Lewis, Tables Turned on
Prosecution in Stevens Case, N.Y. TIMES (Apr. 7, 2009), http://www.nytimes.com/2009/04/08/us/politics/08stevens.html?_r_0
[http://perma.cc/5GUM-YVFX]. Outraged by “the mishandling and misconduct [he had] seen in this case,” Judge Sullivan
appointed a special prosecutor to investigate the prosecutors’ misconduct. James Oliphant, Ted Stevens’ Charges Dismissed as
Judge Excoriates Prosecutors, L.A. TIMES (Apr. 8, 2009), http://articles.latimes.com/2009/apr/08/nation/na-stevens8
[http://perma.cc/59G6-K3G4]. Under fire and besieged by bad press, the Attorney General, using a “newly-appointed team of
prosecutors, filed a Motion to Set Aside the Verdict and Dismiss the Indictment, citing the failure to produce notes taken by
prosecutors.” United States v. Stevens, No. 08-CR-231 (EGS), 2009 WL 6525926, at *1 (D.D.C. Apr. 7, 2009). Judge Sullivan
granted the motion. Id.
70
Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 WASH. U. L. Q. 713, 720 (1999).
71
See Brady v. Maryland, 373 U.S. 83, 87-88 (1963).
72
See Napue v. Illinois, 360 U.S. 264, 269, 272 (1959).
73
Heallen, Former Texas Judge, supra note 66 (reporting on the conviction of former prosecutor and judge Ken Anderson for lying
to the court about complying with Brady v. Maryland in his prosecution of Michael Morton, who was freed after more than twenty
years of wrongful incarceration).
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74
See, e.g., Berger v. United States, 295 U.S. 78, 84 (1935).
75
Gershowitz, Prosecutorial Shaming, supra note 12, at 1075-76; see United States v. Olsen, 737 F.3d 625, 631 (9th Cir. 2013)
(Kozinski, J., dissenting from the denial of rehearing en banc) (stating that “Brady violations have reached epidemic proportions in
recent years, and the federal and state reporters bear testament to this unsettling trend”). The knowing use of false evidence and
improper arguments to the jury are also well-documented examples of prosecutorial misconduct. See Peter A. Joy, The
Relationship Between Prosecutorial Misconduct and Wrongful Conviction: Shaping Remedies for a Broken System, 2006 WIS. L.
REV. 399, 402 (2006).
76
CTR. FOR PROSECUTOR INTEGRITY, An Epidemic of Prosecutorial Misconduct 4 (Dec. 2013),
http://www.prosecutorintegrity.org/wp-content/uploads/EpidemicofProsecutorMisconduct.pdf
[http://perma.cc/4GSU-3WWV]
(last visited Oct. 30, 2015) (quoting a number of experts and noting that official misconduct played a role in forty-three percent of
exoneration cases).
77
See generally Kathleen M. Ridolfi & Maurice Possley, Preventable Error: A Report on Prosecutorial Misconduct in California
1997-2009,
N.
CAL.
INNOCENCE
PROJECT,
SANTA
CLARA
UNIV.
SCH.
OF
LAW
(2010),
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article_1001&context_ncippubs [http://perma.cc/CG92-U33K] (last visited
Oct. 30, 2015) [hereinafter Ridolfi & Possley, Preventable Error] (stating that there are approximately 30,000 prosecutors
employed in more than 2,000 jurisdictions across the United States, and the vast majority appear to discharge their duties
honorably).
78
The National Registry of Exonerations tracks the number of exonerations in the United States from 1989 through the present. See
National
Registry
of
Exonerations,
UNIV.
MICH.
LAW
SCH.,
https://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx [http://perma.cc/94B7-XKYR]
(last visited Oct. 30, 2015) [hereinafter National Registry of Exonerations]. As of July 25, 2015, the Registry had recorded 1,625
exonerations. Id. Of those cases, it found that forty-five percent had been infected by official misconduct. Id. A 2009 study
conducted by the Center for Public Integrity found that from 1970-2008, courts reversed 2,012 indictments, convictions, or
sentences due to prosecutorial misconduct. Steve Weinburg, Who Suffers When a Prosecutor is Cited for Misconduct?, THE CTR.
FOR PUBLIC INTEGRITY, http://www.publicintegrity.org/2003/06/26/5517/breaking-rules [http://perma.cc/X8J7-NSSL] (last
updated May 19, 2014). The study also documented thousands of other cases in which prosecutorial misconduct was found, but did
not rise to a level warranting reversal. Id. These numbers seem high, but constitute a fraction of the hundreds of thousands of cases
prosecuted in that time period. Id. The study did not include the many cases that were resolved without reaching the appellate
courts or resulting in a written opinion or, of course, the cases in which the misconduct was never discovered. Id. Another study
conducted by the Northern California Innocence Project (NCIP), which focused solely on California, examined more than 4,000
cases from 1997-2009 addressing claims of prosecutorial misconduct. Ridolfi & Possley, Preventable Error, supra note 77, at 16.
According to that study, California courts explicitly found misconduct in 707 cases, and the offending prosecutors were “almost
never discipline[d].” Id. at 3. A third study conducted by two reporters at USA Today that focused solely on federal prosecutions
found 201 documented cases of prosecutorial misconduct from 1997 to 2010. Brad Heath & Kevin McCoy, Prosecutors’ Conduct
Can Tip Justice Scales, USA TODAY (last updated Sept. 23, 2010), www.usatoday.com/news/washington/judicial/2010-09-22federal-prosecutors-reform_N.htm [http://perma.cc/B6N8-NABD] (last visited Oct. 30, 2015). The authors concluded that these
cases “have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.”
Id.
79
ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 45 (2007); see also Lawton
P. Cummings, Can an Ethical Person Be an Ethical Prosecutor? A Social Cognitive Approach to Systemic Reform, 31 CARDOZO
L. REV. 2139, 2146 (2010) (“Prosecutors wield enormous power. They possess almost unfettered discretion in certain key
decisions, such as who to charge for what crime, whether to seek the death penalty, and whether to permit a plea.”); Erwin
Chemerinsky, Losing Faith: The Supreme Court and the Abandonment of the Adjudicatory Process, 60 HASTINGS L. J. 1129,
1131-32 (2009) (stating that statutes such as the Federal Sentencing Guidelines, mandatory minimums, and California’s Three
Strikes law “have transferred a tremendous amount of power from judges to prosecutors”).
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80
See Kozinski, Criminal Law, supra note 69, at xxii (stating that most prosecutors are “fair-minded, forthright, and highly
conscientious” but that “a non-trivial number of prosecutors--and sometimes entire prosecutor offices--engage in misconduct that
seriously undermines the fairness of criminal trials”).
81
See Gershowitz, Prosecutorial Shaming, supra note 12, at 1061 (“Much prosecutorial misconduct stems from the fact that law
schools and district attorney’s offices often provide too little training demonstrating where to draw the line between aggressive
prosecution and misconduct.”). An emerging body of legal scholarship in the area of social cognitive theory discusses the interplay
between tunnel vision and misconduct. Tunnel vision is defined as an in-the-trenches mentality that causes a prosecutor’s view of
her case to become so slanted that she truly believes the decisions she is making are fair and reasonable when they are in fact
violating the defendant’s constitutional rights. See Dianne L. Martin, Lessons About Justice from the Laboratory of Wrongful
Convictions: Tunnel Vision, the Construction of Guilt, and Informer Evidence, 70 UMKC L. REV. 847, 848 (2002); see also
Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science, 47 WM. & MARY L. REV.
1587, 1604-05, 1614 (2006); Bennett L. Gershman, ‘ ‘Hard Strikes and Foul Blows:” Berger v. United States 75 Years After, 42
LOY. U. CHI. L. J. 177, 189 (2010) (citing a report studying 600 cases of prosecutorial misconduct from 1926-30 that attributed
“some of the misconduct to a prosecutor’s carelessness, inadvertence, inadequate training, or the ‘excitement’ of a criminal trial,
rather than any deliberate attempt to deprive a defendant of his legal rights”). On the other extreme are cases in which courts have
found that the prosecutor acted intentionally and in flagrant violation of his duties. See, e.g., United States v. Chapman, 524 F.3d
1073, 1080-86 (9th Cir. 2008) (upholding the district court’s finding that the prosecutor acted “flagrantly, willfully, and in bad
faith” by failing to disclose 650 pages of impeachment material and making false statements to the court). Additionally, there can
be no doubt that the conduct of rogue prosecutors Michael Nifong and Ken Anderson was deliberate and even malicious. See supra
note 66 and accompanying text.
82
See, e.g., Milke v. Ryan, 711 F.3d 998, 1000-01 (9th Cir. 2013) (describing the case of Debra Milke, who was convicted on the
testimony of a police detective whom the trial prosecutors knew was a serial perjurer and spent nearly two decades on death row
before a dedicated team of lawyers finally succeeded in freeing her); They Couldn’t Take My Soul: Anthony Ray Hinton On His
Exoneration
After
30
Years
on
Death
Row,
DEMOCRACY
NOW!
(Apr.
6,
2015),
http://www.democracynow.org/2015/4/6/they_couldn_t_take_my_soul [http://perma.cc/8SFM-ZVHX] (last visited Oct. 30, 2015)
(stating that “race, poverty, inadequate legal assistance, and prosecutorial indifference to innocence conspired to create a textbook
example of injustice”); Andrew Cohen, Freedom After 30 Years Spent on Death Row, THE ATLANTIC (Mar. 11, 2014),
http://www.theatlantic.com/national/archive/2014/03/freedom-after-30-years-on-death-row/284179/ [http://perma.cc/BZ27-P6ZU]
(describing the case of Glenn Ford, who spent three decades on death row after prosecutors turned away from evidence pointing to
another suspect and deliberately struck every black juror from the panel). Ford died of cancer a little over one year after his release.
See Alexandria Burris, Glen Ford, Exonerated Death Row Inmate, Dies, USA TODAY (June 29, 2015),
http://www.usatoday.com/story/news/nation/2015/06/29/glenn-ford-exonerated-death-row-inmate-dies/29489433/
[http://perma.cc/G8PV-GPGS].
83
See, e.g., Herrera v. Collins, 506 U.S. 390, 419-20 (1993) (O’Connor, J., concurring) (“[Petitioner] was tried before a jury of his
peers, with the full panoply of protections that our Constitution affords criminal defendants. At the conclusion of that trial, the jury
found petitioner guilty beyond a reasonable doubt. Petitioner therefore does not appear before us as an innocent man on the verge
of execution. He is instead a legally guilty one who, refusing to accept the jury’s verdict, demands a hearing in which to have his
culpability determined once again.”).
84
See Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B. U. L. REV. 125,
134-52 (2004) [hereinafter Medwed, Zeal Deal].
85
See id. at 134-37 (“Prosecutors with the highest conviction rates (and thus, reputations as the best performers), stand the greatest
chance for advancement internally.”); see generally Kenneth Bresler, ‘‘I Never Lost A Trial”: When Prosecutors Keep Score of
Criminal Convictions, 9 GEO. J. LEGAL ETHICS 537, 541 (1996) (“They keep personal tallies and reveal them in various
contexts: political campaigns, interviews with journalists, resumes, cocktail parties and other opportunities for self-promotion.”).
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86
See Medwed, Zeal Deal, supra note 84, at 135-36 (“Prosecutors with the highest conviction rates (and, thus, reputations as the best
performers) stand the greatest chance for advancement internally.”).
87
See id. at 153.
88
See id. at 138 (“It is hard for anybody to admit a mistake, much less someone who may have participated in the conviction of an
innocent person or whose colleague may have done so.”). In a public admission without precedent for its unsparing self-abasement
and apologetic tone, A.M. “Marty” Stroud, the lead prosecutor who secured the wrongful conviction and death sentence of Glen
Ford, penned a letter to the editor of his local newspaper apologizing for what he and his colleagues had done. A.M “Marty”
Stroud III, Lead Prosecutor Apologizes for Role in Sending Man to Death Row, THE TIMES (Mar. 10, 2015),
http://www.shreveporttimes.com/story/opinion/readers/2015/03/20/lead-prosecutor-offers-apology-in-the-case-of-exonerateddeath-row-inmate-glenn-ford/25049063/ [http://perma.cc/QEZ9-7F6Z].
89
To overturn a conviction, it is not enough that an error occurred, the error must also be material. See Strickland v. Washington, 466
U.S. 668, 688 (holding that, to reverse a conviction for ineffective assistance of counsel, counsel’s performance must have been
deficient and there must be a reasonably probability that it prejudiced the outcome), Napue v. Illinois, 360 U.S. 269-70 (1959)
(holding that reversal is required if there is any reasonable likelihood that the false evidence could have affected the jury’s verdict);
United States v. Bagley, 473 U.S. 667, 682 (1985) (interpreting the Brady rule to mean that prosecutors are obligated to turn over
exculpatory evidence “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different”). Materiality standards vary depending on the error, see id., but in short, the error has to
have had some likely effect on the outcome. As one scholar has noted, the materiality standard imposed by Brady “amplifies
cognitive biases,” and may cause even some ethical prosecutors to conclude they need not turn over exculpatory evidence because
it is not, in their determination, material). Alafair S. Burke, Revisiting Prosecutorial Disclosure, 84 Ind. L.J. 481, 481 (2009).
90
See Kozinski, supra note 69, at xxxvii (noting most prosecutorial attitudes run the gamut from “that’s why they put erasers on
pencils,” to “they must be guilty of something”); Medwed, Zeal Deal, supra note 84, at 138 (describing an “ends justify the
means” mentality in which prosecutors convince themselves that “the defendant is guilty despite any holes in the actual evidence”).
91
See Lorraine Morey, Keeping the Dragon Slayers in Check: Reining in Prosecutorial Misconduct, 5 PHX. L. REV. 617, 621-28
(2012) (collecting cases); Bruce A. Green, Why Should Prosecutors “Seek Justice”?, 26 FORDHAM URB. L. J. 607, 638 n.133
(2012) (stating that a prosecutor’s typical reaction to a claim of innocence is to be highly skeptical of the validity of new evidence
pointing to a wrongful conviction and hostile to the possibility that the defendant might be innocent).
92
See Milke v. Mroz, 339 P.3d 659, 665-67 (Ariz. Ct. App. 2014) (barring re-prosecution on double-jeopardy grounds because
egregious prosecutorial misconduct over more than two decades--“at trial, during appeal, and during post conviction proceedings in
state court”--constituted a “flagrant denial of due process”); United States v. Chapman, 524 F.3d 1073, 1088 (9th Cir. 2008)
(dismissing the indictment with prejudice based on misconduct at trial and on appeal, where different attorneys continued to deny
that misconduct had occurred: “The government’s tactics on appeal only reinforce our conclusion that it still has failed to grasp the
severity of the prosecutorial misconduct involved here”); Killian v. Poole, 282 F.3d 1204, 1210-11 (9th Cir. 2002) (describing
years of the state’s concealment of evidence and concluding “if ever there was a case for application of the cumulative error
principles, this is it”). See also Kozinski, Criminal Law, supra note 69, at xv n.77 (describing in detail two recent exonerations in
which the appellate prosecutors, who had nothing to do with the original trial, refused for years to give the convicted prisoners
access to forensic and DNA testing and stoutly denied, to the bitter end, that any misconduct had occurred).
93
Medwed, Zeal Deal, supra note 84, at 132-69.
94
See Gershowitz, supra note 12, at 1090.
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95
See id. at 1091-92.
96
See id. at 1067.
97
See, e.g., id. at 1066-67.
98
United States v. Kojayan, 8 F.3d 1315, 1316 (9th Cir. 1993); see Gershowitz, Shaming Prosecutors, supra note 12, at 1067.
99
Kojayan, 8 F.3d at 1316.
100
See id. at 1317.
101
Id.
102
Id.
103
Id. at 1317-18.
104
See id. at 1318.
105
United States v. Kojayan, 8 F.3d 1315, 1316, 1318 (9th Cir. 1993).
106
See id.
107
See id. at 1319-20.
108
See id. at 1320.
109
See Gershowitz, Prosecutorial Shaming, supra note 12, at 1067.
110
See id. at 1067-68.
111
See id.
112
See United States v. Kojayan, 8 F.3d 1315, passim (9th Cir. 1993).
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113
See Maroney, Angry Judges, supra note 64, at 1233 n.148 (citing Maroney’s interview with Judge Kozinski on February 6, 2010).
114
See Berger v. United States, 295 U.S. 78, 84-85 (1935).
115
See Gershman, supra note 81, at 179 (“Berger’s exhortation is routinely cited by courts when they reverse a conviction resulting
from a prosecutor’s misconduct; by lawyers in appellate briefs as a ritualistic incantation of the law’s commitment to fair criminal
process and the prevention of wrongful convictions; and by academics as a reminder of the appropriate ethical standard for a
prosecutor.”).
116
See Berger, 295 U.S. at 84.
117
See id. passim.
118
See id. passim.
119
See id. at n.1.
120
See Banks v. Dretke, 540 U.S. 668, 675 (2004). Indeed, the Supreme Court has become more protective of prosecutors over the
years, in Berger, the court included parts of the transcript without redacting the prosecutor’s last name. In Miller-El v. Cockrell,
537 U.S. 322 (2003), the Court quoted from a transcript in which prosecutors used peremptory challenges to strike jurors based on
race but redacted the prosecutors’ names. See id. at 232-35, 332-33.
121
See Gershowitz, Prosecutorial Shaming, supra note 12, at 1085.
122
See, e.g., id. at 1086-87.
123
See id.
124
See Maroney, Angry Judges, supra note 64, at 1233.
125
See Kozinski, Criminal Law, supra note 69, at xxxvi (“Naming names and taking prosecutors to task for misbehavior can have
magical qualities ....”).
126
See infra notes 195-97.
127
See supra II.D.
128
See infra III.A.1, III.A.2.
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129
See infra notes 197-98.
130
One recent horrific example involves an exoneree named Glen Ford. Wrongfully convicted of murder, he spent more than three
decades in a tiny dark cell on death row before he was finally released. See Lindsey Bever, After Nearly Thirty Years on Death
Row Glen Ford is Exonerated--and Free, WASH. POST (Mar. 12, 2014), http://www.washingtonpost.com/news/morningmix/wp/2014/03/12/after-nearly-30-years-on-death-row-glenn-ford-is-exonerated-and-free
[https://perma.cc/J5CFBD8Y?type_source]. A little more than a year later, on March 27, 2015, a judge ruled that Ford was not entitled to any
compensation despite the state’s misconduct and other errors that had robbed him of his life. See Vickie Welborn, Judge Denies
Glenn
Ford
Compensation,
SHREVEPORT
TIMES
(Mar.
27,
2015),
http://www.shreveporttimes.com/story/news/local/2015/03/27/glenn-ford-exonerated-compensation-katherine-dorroh-aaronsandler-kristin-wenstrom-isadore-rozeman/70575350 [https://perma.cc/FWY3-G869?type_source]. Ford died three months after
the ruling, of cancer. Lauriel Cleveland, Glen Ford, Exonerated After Thirty Years on Death Row, Dies, CNN (June 30, 2015),
http://www.cnn.com/2015/06/30/us/exonerated-death-row-inmate-glenn-ford-dies [https://perma.cc/U6E6-FAKZ?type_source].
131
See Kozinski, Criminal Law, supra note 69, at iii, xxxiii.
132
See National Registry of Exonerations, supra note 78.
133
For a thought-provoking and moving account of the suffering exonerees faced in prison and the continuation of that suffering upon
release,
see
Ariel
Levy,
The
Price
of
a
Life,
THE
NEW
YORKER
(Apr.
13,
2015),
http://www.newyorker.com/magazine/2015/04/13/the-price-of-a-life [https://perma.cc/T6K5-GQPZ?type_source]. For a firstperson account of the horrors of prison, see Dwayne Dail, Wrongfully Convicted: One Man’s Story, BUREAU OF JUSTICE
PROGRAM’S NATIONAL INSTITUTE OF JUSTICE (Mar. 9, 2009), http://www.nij.gov/journals/262/pages/one-mansstory.aspx [https://perma.cc/SE6U-FXFZ?type_source] (detailing his years of rape and physical assault during his 18 years of
wrongful incarceration).
134
See Kozinski, Criminal Law, supra note 69, at iii-xiv (enumerating the various reasons why judges believe in the accuracy of the
criminal justice system, showing the fallacy of those reasons, and discussing those fallacies in light of the alarming high
exoneration rate).
135
See National Registry of Exonerations, supra note 78. There is no way to know with any certainty how many wrongfully convicted
men and women remain in prison today, but most scholars who study the issue believe that the known exonerees are only “the tip
of the iceberg”: freed through a combination of luck, persistence, good lawyering, and often DNA or forensic evidence. Medwed,
Zeal Deal, supra note 84, at 131. Most cases do not involve that kind of evidence, which makes proving the wrongful conviction a
great deal more difficult. See Project, National Registry of Exonerations: The First 1600, U. MICH. L. SCH.,
https://www.law.umich.edu/special/exoneration/Documents/1600_Exonerations.pdf [https://perma.cc/522X-HBBN] (last visited
Oct. 30, 2015) (noting that seventy-five percent of exonerations do not involve DNA evidence). In some cases, it may well be
impossible. Kozinski, Criminal Law, supra note 69, at xv (stating that “new evidence is hard--and often impossible--to find” to
prove one’s innocence). A recent study by the University of Michigan estimated that 4.1 percent of the death-row population is
innocent. Jan Hoffman, 4.1 Percent Are Said to Face Death on Convictions that were False, N.Y. TIMES (May 1, 2014),
http://www.nytimes.com/2014/05/02/science/convictions-of-4-1-percent-facing-death-said-to-be-false.html?_r_0
[http://perma.cc/Q6ND-WNGP]. Conservative estimates put the number of those wrongfully convicted of any felony at somewhere
between two and eight percent. Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. REVIEW OF BOOKS (Nov. 20, 2014),
http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-pleadguilty [http://perma.cc/58XA-HFLY]. As the
United States has a prison population of 2.2 million people, that number translates into tens of thousands of innocent people behind
bars. See id.
136
See Project, supra note 133.
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137
Id.
138
Id.
139
Id.
140
Id.
141
Id.
142
See id. According to the Registry, the greatest cause of wrongful convictions is false accusations and perjury. Id.
143
Id.
144
See, e.g., Rodney J. Uphoff, Convicting the Innocent: Aberration or Systemic Problem?, 2006 WIS. L. REV. 739, 743 (2006)
(stating that “systemic shortcomings and practices lead to wrongful convictions,” including poor lawyering by defense counsel);
Ellen Yaroshefsky, Wrongful Convictions: It Is Time To Take Prosecution Discipline Seriously, 8 U.D.C./DCSL L. REV. 275,
282-83 (2004) (focusing on prosecutorial misconduct as a key systemic problem underlying many wrongful conviction cases).
145
Kozinski, Criminal Law, supra note 69, at xxii-xxxiv (casting a wide net of blame that includes judges); see also Report &
Recommendation of United States Magistrate Judge Patrick Walsh at 32, Baca v. Adams, Case No. CV 08-683-MMM (PJW)
(voicing the court’s “utter disappointment” in the conduct of the prosecutors and defense counsel in a stand-alone section of the
opinion titled, “The Combined Failure of the Prosecution and the Defense in this Case are Regrettable”). See discussion infra Part
III.B.1.
146
In a study published in 2014, two professors at Emory University “collected and coded data from over 3,000 criminal appeals
decided in state supreme courts in thirty-two states and examined published opinions from 2008-2013.” Joanna Shepherd &
Michael S. Kang, Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases,
SKEWED JUSTICE, http://skewedjustice.org [https://perma.cc/WPP4-VX25?type_source] (last visited Oct. 30, 2015). The study
concluded that state supreme court justices’ willingness to side with criminal defendants decreased as spending on judicial election
advertisements increased: for every $10,000 spent, the judges voted against the defendant an additional eight percent of the time.
Id.; see, e.g., Billy Corriher, Merit Selection and Retention Elections Keep Judges Out of Politics, CENTER FOR AMERICAN
PROGRESS
ACTION
FUND
(Nov.
12,
2012),
https://www.americanprogressaction.org/issues/civilliberties/report/2012/11/01/43505/merit-selection-and-retention-elections-keep-judges-out-of-politics
[https://perma.cc/8FUG5KLG] (arguing against contested elections because judges “must be free to make unpopular decisions that protect the rights of
individuals”).
147
CARLOS BERDEJO & NOAM YUCHTMAN, CRIME, PUNISHMENT, & POLITICS: AN ANALYSIS OF POLITICAL
CYCLES
IN
CRIMINAL
SENTENCING
(2012),
http://faculty.haas.berkeley.edu/yuchtman/Noam_Yuchtman_files/Berdejo_Yuchtman_April_2012.pdf
[http://perma.cc/XT23JB75] (last visited Oct. 30, 2015) (“We present evidence that Washington State judges respond to political pressure by sentencing
serious crimes more severely. Sentences are around ten percent longer at the end of a judge’s political cycle than at the beginning;
judges’ discretionary departures above the sentencing guidelines range increase by fifty percent across the electoral cycle,
accounting for much of the greater severity.”).
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148
Bert Brandenburg, Justice for Sale, POLITICO (Sept. 1, 2014), http://www.politico.com/magazine/story/2014/09/elected-judges110397.html#.VbWfHIvZpUQ [http://perma.cc/FAK8-BKLM] [Brandenburg, Justice for Sale] (stating the judges presiding over
criminal cases are “especially vulnerable to election pressure as grisly TV ads accuse them of being soft on crime” causing them
“to fight back by sounding like district attorneys”). Astudy of Alabama judges found that in an election cycle, they are more likely
to insist on the death penalty over the recommendation of the jury for a life sentence. See id.
149
See Brandenburg, Justice for Sale, supra note 148 (quoting the presiding judge in Birmingham, Alabama’s criminal court as saying
that ads accusing judges of being soft on criminals “have some impact, especially in high profile cases. Let’s face it, we’re human
beings”).
150
See, e.g., People v. Baca, No. E032929, 2004 WL 2750083, at *9 (Cal. Ct. App. Dec. 2, 2004) (stating that while it was a “close
question,” even without the tainted evidence it was reasonably probable that the defendant was guilty).
151
See Baca Transcript, supra note 16.
152
See, e.g., People v. Baca, 2004 WL 2750083, at *9; see also Dolan, Clashing Courts, supra note 13 (quoting NYU Professor Burt
Neuborne as saying that, “In close cases, state judges are more likely than their federal counterparts to rule against criminal
defendants and other unpopular litigants .... Federal judges have lifetime tenure and cannot be recalled for an impolitic decision”).
153
Hon. Morris B. Hoffman, The “Innocence” Myth, WALL ST. J., Apr. 26, 2007, at A19 (stating that the vast majority of cases end
in guilty pleas by guilty people, meaning that “the actual rate of wrongful convictions in the United States is vanishingly small”).
Judge Hoffman is a state court judge in Colorado. See id.
154
See, e.g, ROBERT A. KATZMANN, COURTS AND CONGRESS 39 (1997) (discussing the power of life tenure to insulate
judges from political retribution from unpopular decisions); Reinhardt, The Demise of Habeas, supra note 13, at 1231-32 (2015)
(contrasting the freedom afforded to federal judges to vindicate constitutional rights without fear of losing their jobs with state
court judges who could lose their reelection bids if they are labeled “soft on crime”).
155
Cavazos v. Smith, 132 S. Ct. 2, 7 (2011) (“Doubts about whether Smith is in fact guilty are understandable. But it is not the job of
this Court, and it was not the job of the Ninth Circuit, to decide whether the State’s theory was correct.”); Brown v. Payton, 544
U.S. 133, 148-49 (2005) (Breyer, J., concurring) (stating that if he were the reviewing state court, he would reverse the inmate’s
death sentence but as a member of the federal judiciary under AEDPA, he was without the power to do so); Murdoch v. Castro,
609 F.3d 983, 995 (9th Cir. 2010) (acknowledging that the law may change in petitioner’s favor, “[b]ut under the highly deferential
standard established by AEDPA and the Supreme Court, as long as the state court could have found a principled reason not to
apply the Court’s precedents to the current case, we may not grant habeas relief”); see also Broughton, Habeas Corpus, supra note
17, at 125 (“The substantive and procedural provisions of the AEDPA thus provide comprehensive and unprecedented limits on the
powers of federal courts to grant habeas relief to a prisoner in state custody.”).
156
28 U.S.C. §2254(d).
157
See Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (interpreting the phrase “contrary to” to mean that the state court applied “a
rule that contradicts the governing law set forth in [Supreme Court] cases”).
158
See id. at 413 (holding that a state court decision unreasonably applies Supreme Court law when it “identifies the correct governing
legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the petitioner’s case”).
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159
Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (finding the state court unreasonably applies the facts under AEDPA if the
state court’s findings are based on insufficient evidence, a defective state court process, or an absence of any finding at all).
160
Daniel J. O’Brien, Heeding Congress’s Message: The United States Supreme Court Bars Federal Courthouse Doors to Habeas
Relief Against All but Irrational State Court Decisions, and Oftentimes Doubly So, 24 FED. SENT. R. 320 (2012); see Harrington
v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court, a state prisoner must show
that the state court’s ruling ... was so lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fair-minded disagreement.”).
161
See Richter, 562 U.S. at 98 (holding that “[w]here the state court’s decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing that there was no reasonable basis for the state court to deny relief”). Ninth Circuit
Judge Stephen Reinhardt has stated that under Richter, “[S]tate courts can ignore or summarily deny meritorious claims as long as
a federal judge can conjure up any possible way that existing Supreme Court precedent would compel a contrary conclusion.”
Reinhardt, The Demise of Habeas, supra note 13, at 1230-31 (2015).
162
Rose v. Lundy, 455 U.S. 509, 518-22 (1982).
163
Cullen v. Pinholster, 131 S. Ct. 1388, 1398-99 (2011).
164
Holland v. Florida, 560 U.S. 631, 635 (2010).
165
See, e.g., Richter, 562 U.S. at 101-02; Pinholster, 131 S. Ct. at 1398-99.
166
See, e.g., Cavazos v. Smith, 132 S. Ct. 2, 7-8 (2011) (per curiam) (“This Court has vacated and remanded this judgment twice
before, calling the panel’s attention to this Court’s opinions highlighting the necessity of deference to the state courts in section
2254(d) habeas cases. Each time the panel persisted in its course, reinstating the judgment without seriously confronting the
significance of the cases called to its attention.”); Early v. Packer, 537 U.S. 3, 11 (2003) (“By mistakenly making the ‘contrary to’
determination and then proceeding to a simple ‘error’ inquiry, the Ninth Circuit evaded § 2254(d)’s requirement that decisions
which are not ‘contrary to’ clearly established Supreme Court law can be subjected to habeas relief only if they are not merely
erroneous, but ‘an unreasonable application’ of clearly established federal law, or based on ‘an unreasonable determination of the
facts.”’ (emphasis added)); Cash v. Maxwell, 132 S. Ct. 611, 616 (2012) (Scalia, J., dissenting from denial of certiorari) (“It is a
regrettable reality that some federal judges like to second-guess state courts. The only way this Court can ensure observance of
Congress’ abridgment of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that
present no disputed issues of law. We have often not shrunk from that task, which we have found particularly needful with regard
to decisions of the Ninth Circuit.” (emphasis in the original)); Diarmuid F. O’Scannlain, A Decade of Reversal: The Ninth Circuit’s
Record in the Supreme Court Through October Term 2010, 87 NOTRE DAME L. REV. 2165, 2168 (2012) (“It seems that at least
once every term, the Supreme Court has to remind us about the proper standard of review in habeas proceedings under the
Antiterrorism and Effective Death Penalty Act (affectionately called ‘AEDPA’).”).
167
John Schwartz, “Liberal” Reputation Precedes Ninth Circuit Court, N.Y. TIMES (Apr. 25, 2010),
http://www.nytimes.com/2010/04/25/us/25sfninth.html [http://perma.cc/QG85-527L]; Robert Barnes, Supreme Court Delivers a
Dressing Down to the Ninth Circuit, WASH. POST (Jan. 31, 2011), http://www.washingtonpost.com/wpdyn/content/article/2011/01/30/AR2011013003951.html [http://perma.cc/7BAW-GQ9Q].
168
Reinhardt, The Demise of Habeas, supra note 13, at 1222; see also Kozinski, Criminal Law, supra note 69, at xlii (“AEDPA is a
cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice .... It should
be repealed.”).
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169
Reinhardt, The Demise of Habeas, supra note 13, at 1220; see also Stephen Reinhardt, Life to Death: Our Constitution and How it
Grows, 44 U. C. DAVIS L. REV. 391, 408 (2010) (stating that AEDPA means that “even if the conviction or sentence is
unconstitutional under clearly established Supreme Court law, a state court ruling to the contrary will not be overturned and the
petitioner will remain incarcerated or may be executed, unless the ruling of the state court was not only wrong, but unreasonably
so. Can this really be the law?”); Stephen Reinhardt, The Anatomy of an Execution: Fairness vs. “Process,” 74 N.Y. U. L. REV.
313, 319, 349-53 (1999) (recounting the effect of AEDPA and the stringent application of procedural rules by the Supreme Court
in the case of Thomas Thompson, who was executed in 1998 after a trial that was riddled with prosecutorial misconduct and
ineffective assistance of counsel); see also Nathan Koppel, Ninth Circuit Judge Stephen Reinhardt Feels the High Court’s Wrath,
WALL ST. JOURNAL LAW BLOG (Jan. 19, 2011), http://blogs.wsj.com/law/2011/01/19/ninth-circuit-judge-stephen-reinhardtfeels-high-courts-wrath [http://perma.cc/SW8J-K84V] (stating that on January 19, 2011, the United States Supreme Court reversed
two Reinhardt-authored decisions in habeas cases).
170
See, e.g., Kozinski, Criminal Law, supra note 69, at xli-xlii n.175 (commenting on the handling of the Ted Stevens prosecutorial
misconduct case: “What does that say about the sincerity and competence of the Justice Department’s efforts? They can topple a
senator and jail Martha Stewart, but they can’t even spank their own misbehaving lawyers?”); Sessoms v. Grounds, 776 F.3d 615,
631 (9th Cir. 2015) cert. denied sub nom. Arnold v. Sessoms (U.S. Oct. 5, 2015) (Kozinski, J., dissenting) (“But what we must
decide is not what Sessums meant or what the officers understood, but whether it was unreasonable for the state courts to conclude
that a reasonable officer would have been perplexed as to whether Sessums was asking for a lawyer. This is the kind of question
only lawyers could love--or even understand--and perhaps not even most of them.”); Murdoch v. Castro, 609 F.3d 983, 996-97 (9th
Cir. 2010) (Kozinski, J., dissenting) (“If it wasn’t for bad luck, Murdoch wouldn’t have had luck at all. He’s wakin’ up this
mornin’ in jail when there’s strong proof he ain’t done nothin’ wrong.”).
171
Reinhardt, The Demise of Habeas, supra note 13, at 1220 (stating that “any participant in our habeas regime would have to agree
that it resembles a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed
in pursuing the Writ as it would be for a Supreme Court Justice to strike out Babe Ruth, Joe DiMaggio, and Mickey Mantle in
succession--even with the Chief Justice calling balls and strikes”); Kozinski, Criminal Law, supra note 69, at xli (“We now have to
stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”).
172
Howard J. Bashman, Third Circuit Arguments Coming Soon to YouTube?, LEGAL INTELLIGENCER (Aug. 11, 2015),
http://www.thelegalintelligencer.com/id_1202734385558/Third-Circuit-Oral-Arguments-Coming-Soon-toYouTube?slreturn_20150902225528 [http://perma.cc/G9TA-4L73] [hereinafter Bashman, Third Circuit Arguments] (“For
whatever reason, no other federal appellate court has yet followed the Ninth Circuit onto YouTube to offer either live or archived
video access to oral arguments.”).
173
See id. (reporting that the Third Circuit is considering “posting video of its oral arguments to YouTube”).
174
People v. Baca, No. E032929, 2004 WL 2750083, at *1, *4 (Cal. Ct. App. Dec. 2, 2004).
175
Id. at *1.
176
Id. at *2.
177
Id.
178
Id.
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179
Id.
180
Baca, 2004 WL 2750083, at *2.
181
Id.
182
Id.
183
Id. at *2-3.
184
Id. at *3.
185
Id.
186
Reporter’s Transcript of the Oral Argument at 3-4, Baca v. Adams, Case No. 13-56132 (Jan. 8, 2015),
https://www.youtube.com/watch?v_2sCUrhgXjH4 [https://perma.cc/TN5W-A86D]. Baca testified in his own defense, claiming he
was outside of the house at the time of the shooting, waiting for Mix to give him a ride. Mix and Adair went in their bedroom and
began arguing. Baca testified that he waited twenty minutes and then left in Mix’s car, “which he admitted was a bad idea.” When
the police stopped him several days later, he pretended to be someone else because he did not want to get arrested for car theft.
People v. Baca, 2004 WL 2750083, at *3-4. When the police arrested Baca in a park several days later, Adair’s car was close by.
Id. at *2.
187
Baca, 2004 WL 2750083, at *1, *4.
188
Id.
189
Id. at *6.
190
Id. at *4. The full procedural history is a great deal more complicated than the abridged version presented in the text of this Article.
Baca had two trials. Id. at *2. Before the first trial, the informant pleaded guilty to voluntary manslaughter with the understanding
that Spira would recommend a fourteen-year prison sentence. Id. at *2. On December 20, 1998, while Baca’s case was pending on
appeal, the informant was sentenced, with Spira in court representing the state. Id. at *5. Spira stated that he was recommending
the reduced sentence only for the informant’s cooperation in his own case. Id. The judge then indicated that he intended to
unilaterally reduce the sentence from fourteen years to eleven, which he conceded he lacked the legal power to do. Id. He asked
Spira if the state would appeal. Spira stated that he would not, and the judge imposed the eleven-year sentence. Id. The informant’s
testimony against Baca was substantially the same in both trials. Id. at *2. At Baca’s second trial, in 2002, Spira “repeated his
testimony about the informant’s plea bargain,” but then “added a new wrinkle.” Id. at *6. He claimed that the informant was
actually sentenced in 1997 to the agreed-to fourteen years and that the sentence was reduced to eleven years in 1998 only in
response to technical problems pointed out by the CDC in calculating credits for time-served. Id.
191
Id. at *6.
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192
Id. at *7-8.
193
Id.
194
Id. at *9.
195
Id.
196
Baca v. Adams, 2011 U.S. Dist. LEXIS 157443, at *2 (C.D. Cal. June 22, 2011). Baca also claimed that he had suffered from the
ineffective assistance of trial counsel and that his Sixth Amendment right to cross-examination was violated. Id. at *2-3. In 2010,
federal magistrate judge Patrick Walsh held an evidentiary hearing, at which Vinegard, Spira, and Baca’s trial counsel, Anthony
Silva, testified and denied any wrongdoing. Id. at *12-15. Vingard testified that he knew nothing about any lies by Spira and the
informant. Id. at *15. Spira testified that he told no lies and Silva testified that he made a tactical decision not to impeach the
informant with his sentencing hearing transcripts. See id. at *13-15. Six months after the evidentiary hearing, the United States
Supreme Court decided Cullen v. Pinholster, which precludes the factual development of claims in federal court absent unusual
circumstances. 131 S. Ct. 1388, 1398-99 (2011) (holding that, under AEDPA, a federal court’s review of a state court decision is
limited to the record before the state court). Judge Walsh concluded that he was barred from considering any of the testimony at
the evidentiary hearing because it had not been reviewed by the state court. Baca, 2011 U.S. Dist. LEXIS 157433, at *15-16.
197
Baca, 2011 U.S. Dist. LEXIS 157433, at *40 n.5.
198
Id. passim.
199
This section of the Report and Recommendation is entitled “The Combined Failure of the Prosecution and the Defense in this Case
are Regrettable.” Id. at *43. Judge Walsh also took trial counsel to task for providing ineffective assistance of counsel, but, as with
the other claims, found he could not grant relief because the contrary finding by the state court was not clearly unreasonable under
AEDPA. Id. at *18-30, *47-52.
200
Id. at *44-46.
201
Id. at *44.
202
Id. at *23.
203
Id. at *16-17, *28-30, *39-40 (citing 28 U.S.C. 2254(d)).
204
Transcript of Oral Argument, Baca v. Adams, 777 F.3d 1034 (9th Cir. 2015) (No. 13-56132),
https://www.youtube.com/watch?v_2sCUrhgXjH4 [http://perma.cc/5HUR-DE2T] [Reporter’s Transcript] (transcript on file with
the author). Judge Kozinski was appointed by President Reagan. Judges Wardlaw and Fletcher were appointed by President
Clinton.
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205
Id. at 5-6.
206
Id. at 6.
207
Id. at 10-11.
208
Id. at 1-15.
209
Maura Dolan, U.S. Judges See “Epidemic” of Prosecutorial Misconduct in State, L.A. TIMES (Jan. 15, 2015),
http://www.latimes.com/local/politics/la-me-lying-prosecutors-20150201-story.html [http://perma.cc/3EQS-M6WN] (reporting
that the deputy attorney general “had barely started his argument when the pummeling began”).
210
Reporter’s Transcript, supra note 204, at 15-16.
211
Id.
212
Id. at 17-20.
213
Id.
214
Id. at 26.
215
Id.
216
Id. at 31-32.
217
Id. at 33.
218
Id. at 38.
219
Id.
220
United States Court of Appeals for the Ninth Circuit, 13-56132 Johnny Baca v. Derral Adams, YOUTUBE (Jan. 8, 2015),
https://www.youtube.com/watch?v_2sCUrhgXjH4 [http://perma.cc/9E3X-776T] (last visited on Aug. 21, 2015).
221
See Dolan, supra note 207 (“The low-profile case probably would have gone unnoticed if not for the video, which attorneys
emailed to other attorneys and debated on blogs.”).
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222
See Ken Broder, Kamala Harris Flips on Murder Case after Federal Judges Rip Prosecutorial Misconduct, ALLGOV
CALIFORNIA (Feb. 4, 2015), http://www.allgov.com/usa/ca/news/california-and-the-nation/kamala-harris-flips-on-murder-caseafter-federal-court-rips-prosecutorial-misconduct-150204?news_855570 [https://perma.cc/LK7E-4VLR?type_source] (quoting a
pleading filed by the Attorney General’s Office: “After oral argument, this matter was discussed with the Attorney General and the
new Riverside County District Attorney. In the interest of justice, the People have concluded that the conviction should be set
aside”).
223
Kozinski, Criminal Law, supra note 69, at xxxvi. The United States Department of Justice took issue with many of the assertions
made by Judge Kozinski in his widely circulated law review article. In an open letter dated November 4, 2015, co-authored by two
top federal prosecutors, the DOJ stated that,
Judge Kozinski goes too far in casting aspersions on the men and women responsible for administering justice in this country. His
preface seemed to question not only the integrity of our agents and prosecutors, but also the government’s capacity to self-correct
in the (very small) minority of cases when someone falls short.
Letter of Associate Deputy Attorney General Andrew D. Goldsmith & United States Attorney for the District of Colorado John
Walsh (Nov. 4, 2015), http://pdfserver.amlaw.com/nlj/DOJ%20response%C20to%20Kozinski.pdf [http://perma.cc/H52Y-27C3]
(last visited Dec. 19, 2015). The letter did not make any specific mention of the Baca or Gage cases, nor did it express any opinion
about the shaming of prosecutors during oral argument. See id.
224
See People v. Gage, No. B14219, 2001 WL 1446950, at *1, (Cal. Ct. App. Nov. 14, 2001).
225
See id.
226
See id.
227
See id.
228
See id. at *2.
229
Id.
230
Id.
231
Id.
232
Petitioner’s Court-Ordered Supplemental Application for Authorization to File Second or Successive Section 2254 Petition at 6,
12, Gage v. Chappelle, 793 F.3d 1159 (9th Cir. 2015) No. 13-73438 [hereinafter Gage Supplemental Application] (on file with
author and with journal).
233
Id. at 80 (citing to the trial transcript).
234
Oral
Argument,
Gage
v.
Chappell,
793
F.3d
1159
(9th
Cir.
2015)
(No.
13-73438),
https://www.youtube.com/watch?v_zQapiqIN2Es [http://perma.cc/Q9RZ-YWRG] (transcript on file with the author). See Gage
Transcript, supra note 14, at 7.
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235
Gage Transcript, supra note 14, at 7.
236
Id.
237
See People v. Gage, No. B14219, 2001 WL 1446950, at *3, (Cal. Ct. App. Nov. 14, 2001).
238
See id. passim. The state called an expert in “child abuse accommodation syndrome” to explain why, as a psychological matter,
Marian waited three years to disclose the abuse. Id. at *2. The state also called a family nurse practitioner to testify that it was not
unusual for the physical examination of Marian to have turned up no signs of abuse. Id. at *3. Finally, the state called a friend of
Wanda’s, who testified that she had once observed Gage treat Wanda’s son poorly and that, in her opinion, Gage “was not a loving
husband and father.” Id.
239
Id. at *2; Gage Supplemental Application, supra note 232, at 26 (citing to the court transcript in which the trial judge described
Gage as “a man who has no priors, not even a traffic ticket .... The only psychologist who examined him said he did not have any
indicia of a pedophile”).
240
Gage Supplemental Application, supra note 232, at 80 (citing to the trial transcript).
241
Id.
242
People v. Gage, No. B147219, 2001 WL 1446950, at *3, (Cal. Ct. App. Nov. 14, 2001).
243
Id.
244
Id.
245
Id.
246
Id. at *3-4.
247
Id. at *4.
248
See Order Granting Defendant’s Motion for a New Trial, People v. Gage, at 2-5 (L.A. Superior Ct. 2000) (copy on file with the
author).
249
Gage Supplemental Application, supra note 232, at 25, 82-83.
250
People v. Gage, No. B14219, 2001 WL 1446950, at *8-9 (Cal. Ct. App. Nov. 14, 2001) (internal quotation marks and citation
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omitted).
251
Id. at *9.
252
People v. Gage, No. B168825, 2004 WL 2786345, at *1, *3, (Cal. Ct. App. Dec. 6, 2004).
253
Gage Supplemental Application, supra note 232, at 35.
254
Oral Argument at 21:46, Gage v. Chappelle, 793 F.3d 1159 (9th Cir. 2015) (No. 13-73438)
https://www.youtube.com/watch?v_zQapiqIN2Esm [http://perma.cc/VJW7-XT4N] (transcript on file with the author) [hereinafter
Oral Argument, Chappelle]. All further citations to the oral argument will be to the transcript.
255
Gage Supplemental Application, supra note 232, at 35.
256
Report and Recommendation at 9, Gage v. Chappelle (Oct. 26, 2010) (No. CV 05-5057-ODW).
257
Id. at 32.
258
Gage Supplemental Application, supra note 232.
259
Oral Argument, Chappelle, supra note 254.
260
Transcript of Record at 1, Gage v. Chappelle, No. 13-73438 (9th Cir. Apr. 7, 2015) [hereinafter Gage Transcript].
261
Gage Transcript, supra note 258, at 1.
262
Id. at 7.
263
Id. at 26-27.
264
Id. at 14-25.
265
Id. at 14.
266
Id.
267
Id. at 15-7.
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268
Id. at 17.
269
Id.
270
Id.
271
Reporter’s Transcript, supra note 202, at 18-19.
272
Id. at 19.
273
Id.
274
Id.
275
Id.; see also Order Granting and Denying Motion to Unseal Transcripts and Exhibits and permission to File Supplemental Brief at
2, People v. Gage, No. B168825 2001 WL 1446950 (Cal. Ct. App. Nov. 14, 2001) (stating that the court reviewed Marian’s
records and concluded that they are “private” and that “there is nothing in those records which could be of assistance to
defendant”) (order on file with author).
276
Reporter’s Transcript, supra note 202, at 19.
277
Oral Argument, Chappelle, supra note 254, at 21:46.
278
Reporter’s Transcript, supra note 202, at 19-20.
279
Oral Argument, Chappelle, supra note 254, at 21:51.
280
Id.
281
Reporter’s Transcript, supra note 202, at 20.
282
Id. at 20-21, 23.
283
Id. at 23.
284
Order Setting Mediation Conference, Gage v. Chappelle, 793 F.3d 1159 (9th Cir. 2015) (No. 13-73438) (on file with author).
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285
See E-mail from Tony Faryar Farmini, to Lara Bazelon, Co-Chair, the Am. Bar Ass’n’s Ethics, Gideon & Professionalism Comm.
(July 28, 2015) (on file with author).
286
Gage v. Chappelle, 739 F.3d 1159 (9th Cir. 2015).
287
Id. at 1164-1169.
288
Id. at 19.
289
Id. at 13.
290
Id.
291
The Ninth Circuit began streaming video of oral arguments in 2010. See http://www.ca9.uscourts.gov/media
[http://perma.cc/6N78-XBRB] (last visited Oct. 23, 2015). To this day, other circuit courts only provide audio recordings of oral
argument, not video recordings. That includes the United States Supreme Court and the District of Columbia Court of Appeals. See
Argument Audio, SUPREME COURT OF THE U.S., http://www.supremecourt.gov/oral_arguments/argument_audio.aspx
[http://perma.cc/P2MR-SQFK] (last visited Oct. 23, 2015); Oral Argument Recordings, U.S. Court of Appeals for the D.C. Circuit,
http://www.cadc.uscourts.gov/recordings/recordings.nsf/DocsByRDate?OpenView&count_100 [http://perma.cc/8Z54-P98E] (last
visited Oct. 23, 2015).
292
Bashman, Third Circuit Arguments, supra note 172.
293
Examples of this type of shaming by Ninth Circuit judges continue to arise in cases that do not involve wrongful conviction and
where the court does have a legal remedy available, suggesting that judges see it as a way of deterring misconduct, full stop.
Beginning in the tenth minute of a live streaming video during oral argument in Rodriguez v. Robbins, Judge Kim Wardlaw
castigated the AUSA for attempting to bolster the government’s case by referring to a Los Angeles Time article published three
days earlier. Oral Argument, Rodriguez v. Robbins, No. 13-56706, 2012 WL 7653016 (C.D. Cal. Sept. 13, 2012),
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid_0000008028 [http://perma.cc/D8Z3-G2MA]. In Rodriguez, the
government was appealing an order from the district court judge requiring bail hearings every six months for undocumented
immigrants as a matter of due process. Id. Citing unnamed “federal authorities,” the Los Angeles Times article reported that one of
the undocumented immigrants who had been released on bail went on to sexually assault a fourteen year-old girl. Cindy Chang,
Sex Offender Accused of Assaulting Teen was in the U.S. Illegally, Officials Say, L.A. TIMES (July 21, 2015),
http://www.latimes.com/local/crime/la-me-sex-offender-immigration-20150721-story.html [http://perma.cc/9V5T-SX4R]. The
article quoted a 2013 decision written by Judge Wardlaw stating that the challenged rule “will not flood our streets with fearsome
criminals seeking to escape the force of American immigration law.” Id. Visibly outraged, Judge Wardlaw told the prosecutor that
she, too, had read the Times article and wondered whether the Department of Justice had leaked the information in a deliberate
attempt to influence the outcome of the appeal. Id. Judge Wardlaw then took the AUSA to task for trying to use evidence outside
of the record. On August 13, 2015, the panel issued an order
to show cause why sanctions should not be imposed for the improper oral argument before this Court on July 24, 2015, based on an
L.A. Times news article, published July 21, 2015, three days before oral argument in this case, entitled “Suspect was fighting
deportation,” the source for which is identified as “federal authorities” and which directly references and quotes from earlier
proceedings in this case.
Rodriguez v. Robbins, 797 F.3d 758, 759 (9th Cir. 2015)(citing Fed. R. App. P. 46(c); Circuit Rule 46-2(a); MODEL CODE OF
PROF’L RESPONSIBILITY 3.5 (1980)).
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294
Another recent instance of judicial shaming of a prosecutor during oral argument on a direct appeal is United States v. Maloney,
755 F.3d 1044 (9th Cir. 2014) (en banc). John Maloney was stopped at a checkpoint by border patrol agents who searched his
tractor-trailer and found over 300 pounds of marijuana. Id. at 1045. The U.S. Attorney’s Office for the Southern District of
California charged John Maloney with the possession of marijuana with the intent to distribute it. Id.At trial, the only issue was
whether Maloney know he was carrying the marijuana in his truck. Id. In the rebuttal portion of his closing argument, the
prosecutor argued that the jury should infer guilt because Maloney had no luggage with him when he was arrested, and he should
have been carrying luggage for such a long trip. Id. at 1045-46. But no evidence about luggage had been introduced at trial. Id. at
1045-46. Defense counsel’s motion for a sur-rebuttal and for a mistrial based on prosecutorial misconduct, were denied. Id. After a
divided panel of the Ninth Circuit affirmed Maloney’s conviction, a majority of judges voted to rehear the case en banc. Id. at
1046. Oral argument before eleven appellate judges was held on September 19, 2013. Oral Argument, United States v. Maloney,
755 F.3d 1044 (9th Cir. 2014) (No. 11-50311), https://www.youtube.com/watch?v_HgafGnA4Eow [http://perma.cc/N45L-CR2G]
[hereinafter, Oral Argument, Maloney]. Assistant United States Attorney Bruce Castetter argued that no prosecutorial misconduct
occurred. Id. Judge Kozinski asked Castetter, “When you stand there and defend that conduct, don’t you send the wrong message
to prosecutors?” Judge Fletcher told Castetter, “Your office needs to rethink some of its practices.” Id. Toward the end of the
argument, which lasted over one hour, Judge Kozinski told Castetter to watch the oral argument on video with the AUSA Miller,
who tried the case, and others in his office, “just view it and see if it is something you want to be teaching your AUSAs.” Id. He
then instructed Castetter to show the video of the oral argument to the U.S. Attorney, Laura Duffy, to see if she thought endorsing
the prosecutor’s conduct was appropriate. Id. On October 7, 2013, U.S. Attorney Duffy filed a motion to reverse Maloney’s
conviction. Maloney, 755 F.3d at 1046. In the motion, Duffy stated that she had reviewed the oral argument on video with other
senior members of her office and concluded that the prosecutor’s rebuttal closing argument was improper. Id. She promised to “use
the video of the argument as a training tool” for all of the attorneys that worked for her. Id. Duffy and her colleagues were not the
only ones who viewed the video: over 14,000 people watched it. Oral Argument, Maloney, supra note 294.
295
People v. Baca, No. E032929 2004 WL 2750083, at *2 (Cal. Ct. App. Dec. 2, 2004).
296
Oral Argument, Chappelle, supra note 254; Reporter’s Transcript, supra note 202, at 17.
297
See supra notes 209-19 and 264-81.
298
Compare People v. Gage, Case No. B14219, 2001 WL 1446950, at *8-9 (Cal. Ct. App. Nov. 14, 2001) with People v. Baca, 2004
WL 2750083, at *6-8 (Cal. Ct. App. Dec. 2, 2004).
299
Baca Transcript, supra note 16, at 4-11.
300
Judge Clifton told Deputy Attorney General Cook, “And what I’ve heard from you so far is a set of procedural obstacles which Mr.
Gage failed to clear. And that’s true. And that’s what the law provides.” Gage Transcript, supra note 14, at 17.
301
See supra notes 34-38.
302
See supra note 5.
303
See United States Court of Appeals for the Ninth Circuit, 13-56132 Johnny Baca v. Derral Adams, YOUTUBE (Jan. 8, 2015),
https://www.youtube.com/watch?v_2sCUrhgXjH4 [http://perma.cc/7ZPQ-P5MH] (last visited Dec. 19, 2015) (showing 29,781
views).
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304
See United States Court of Appeals for the Ninth Circuit, 13-73438 George Gage v. Kevin Chappell, YOUTUBE (Apr. 7, 2015),
https://www.youtube.com/watch?v_zQapiqIN2Es [http://perma.cc/J6Y2-4UTD] (last visited Dec. 19, 2015) (showing 311 views).
305
Kozinski, Criminal Law, supra note 69, at xxxvi (underscoring the importance of video recording oral argument, stating that “[i]t
is far easier to hide an injustice from public scrutiny if only the judge and a few lawyers know about it”).
306
Code of Conduct for United States Judges, supra note 61, passim.
307
Id. at Canon 1 Commentary.
308
Id. at Canon 2.
309
Canon 3 instructs judges to “be patient, respectful, and courteous to litigants” and “accord every person who has a legal interest in
the proceedings a right to be heard according to the law.” Id. at Canon 3(A)(3)-(4). Any lawyer who has every practiced in federal
court (or any court) knows that the rule is often disregarded, as do the judges themselves. See, e.g., Teachers4Action v. Bloomberg,
552 F. Supp. 2d 414, 416 (S. D. N.Y. 2008). Stories abound in legal circles about federal judges who routinely yell and bully
litigants, and cutting them off before they have a chance to finish--or sometimes even make--a legal argument. One of the judges
most infamous for his ill-tempered imperiousness--as well as for his frequent reversals by the appellate court--is federal district
court judge Manuel Real. In 1989, he forced a lawyer who was proceeding pro se to defend himself “in a medicated fog without his
case files” after having U.S. Marshals bring him from the hospital to the courthouse. Carol J. Williams, Critics Want to Bench
Judge Manuel Real, L.A. TIMES, Aug. 16, 2009, http://articles.latimes.com/2009/aug/16/local/me-judge-real16
[http://perma.cc/JU33-KAVZ]. The lawyer was convicted after a two-day bench trial and spent nearly twenty months in prison. Id;
see also Tom Hayden, Judge Real in Alex Sanchez Case is Surreal, THE NATION (Oct. 28, 2009),
http://www.thenation.com/article/judge-real-alex-sanchez-case-surreal/ [http://perma.cc/GF5P-KTCQ] (quoting attorney Harlan
Braun as saying “in the courtroom, he destroys a lawyer’s ability to present a case. He tells the jury you’ve done something wrong.
He makes faces. I’m sorry, but he acts like a five year old with power.”).
310
Maroney, Angry Judges, supra note 64, at 1232 (describing federal district court judge John Sprizzo dismissing charges against
half the defendants in a major drug case and excoriating the prosecution, stating, “If you had been a competent prosecutor, which
you are not, you would have hedged against the possibility that maybe the judge would disagree with you .... If these drug dealers
are walking free, it is because you did not hedge against that possibility”); see also Benjamin Weiser, Police in Gun Searches Face
Disbelief
in
Court,
N.Y.
TIMES
(May
12,
2008),
http://www.nytimes.com/2008/05/12/nyregion/12guns.html?pagewanted_print&_r_0 [http://perma.cc/DXP6-Z2SP] (detailing
numerous cases in which federal judges believed that police officers testifying for the prosecution were committing perjury and
suppressing key evidence resulting in the dismissal of cases, even as prosecutors continued to “vigorously defend the officers’
conduct and testimony”).
311
FED. R. CRIM. P. 11(c).
312
See id.
313
In a section titled “When Prosecutors Misbehave, Don’t Keep It a Secret,” Judge Kozinski discusses United States v. Kojyan and
United States v. Maloney in addition to Baca v. Adams. See Kozinski, Criminal Law, supra note 69, at xxxv -vi. The facts in
Maloney are detailed in this Article in footnote 292.
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314
Id. at xxxvi. For the Department of Justice’s written rebuttal, see supra note 223.
315
Maroney, Angry Judges, supra note 64, at 1211-12; see also Terry A. Maroney, The Persistent Cultural Script of Judicial
Dispassion, 99 CALIF. L. REV. 629 (2011); Terry A. Maroney, Emotional Regulation and Judicial Behavior, 99 CALIF. L. REV.
1485 (2011).
316
Maroney, Angry Judges, supra note 64, at 1211-12.
317
See Oral Argument, supra note 218; Oral Argument, supra note 232.
318
Maroney, Angry Judges, supra note 64, at 1211-12.
319
Id. at 1232-65.
320
Id. at 1210-11.
321
Id. at 1215.
322
Alfred Gitelson & Bruce L. Gitelson, A Trial Judge’s Credo Must Include His Affirmative Duty to be an Instrumentality of Justice,
7 SANTA CLARA L. REV. 7, 7 (1966).
323
See id. at 8 (“The objective and sole justification of our law and courts being justice, the trial judge cannot be negative. He does not
serve his purpose or function by being merely an umpire, a referee, a symbol, or an ornament.”).
324
Marbury v. Madison, 5 U.S. 137, 163 (1803).
325
Massaro, Shame, supra note 2, at 1913-14.
326
Dynes, The Scarlett Letter, supra note 43, at 515.
327
See supra note 1.
328
See supra note 152.
29 GEOJLE 305
End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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