Yes, you affirm the conviction as the law requires. You then lobby the governor to pardon the man.

It is an interesting question. One wonders how 12 people could hold an abiding certainty that the guilt of such a person has been proved beyond a reasonable doubt, when a judge believes to a moral certainty that the defendant is innocent. I'm not saying that this is impossible, but (assuming a judge without an agenda) one would think it would be rare. The judge should also remember that the jurors were there to watch the testimony of the witnesses, while he wasn't.

That said, I agree with the first commenter. Do your job, and then write the governor and tell him that you know better than those 12 jurors. If you can explain why, maybe he'll listen.

If all you're doing is judging credibility based on the cold record, then you affirm.

However, nearly all trials have some sort of error or another. And a lot of convictions are upheld based on the idea of harmless error/lack of prejudice; after all, most defendants are guilty. Now, if you have a conviction and a moral certainty of innocence, then it's awfully hard to conclude that the improperly worded jury instruction, or the incorrect allowance of some bit of testimony that was objected to, was harmless.

In other words, the appellate court can almost always get where it wants to be without putting much of a kink in the law.

Isn't this precisely the kind of thinking that gets the 9th Circuit into trouble all the time?

Isn't this the old "rule of law" - "rule of man" issue? I believe that Aristotle or somebody had something to say on that. And if I had taken Law and Philosophy instead of Evidence, I might know the answer. I think it's "rule of law" (largely for the reason that Dick King mentioned), but I practice securities law, so who knows?

One comment on Kozinski's article, which was interesting. He seems to argue that merely because the judicial cannon cannot apply to every situation in which there might be an ethical issue, it is useless and we should just trust judges. I disagree. We use the cannon for what it's useful for - things like conflict of interests due to financial interests in a case. Things that it is not useful for, we simply must deal with in other ways. We should not make the perfect the enemy of the good.

No realistic criminal justice system is going to reach a true outcome 100% of the time. False convictions are probably worse outcomes than false exonerations, but I also would guess they are relatively rare, as the system is designed with a false exoneration bias.

So the issue becomes one where you must weigh a bad outcome against a good process. I'm not sure exactly what Judge Kozinski is suggesting as an alternative, but to replace the biases and baggage of a group of people (who must usually all agree) with the biases and baggage of a single person doesn't seem to me to be likely to result in better outcomes over the long term.

Yes, confirm. This is neither a difficult nor a particularly interesting question. However, it is difficult to understand why Judge Kozinski believes that it is difficult (or interesting).

"If you want a decision, go to court; if you want Justice, go to church." -- don't know

Wouldn't a pardon require a confession of guilt? (Obviously I'm not a lawyer!)

His point (at least as I read the article) is that the "hard" ethical questions are not so simple that they can always be simply addressed by the Canon.

I'd (again, neither lawyer nor judge) strike the first conviction on the grounds that the jury wasn't rational in coming to its verdict, and the second for the bad search. Would it be unethical of me (as judge) to warn both prosecution and defence that I was probably going to strike the second even as I held it for a month or six to think about it?

I pretty much agree with the above viewpoints... you affirm. Though I personally think this leads to interesting counter question.

If a man is obviously guilty... there is an incredible amount of physical evidence against this person for a crime... and the jury finds him guilty. He appeals the decision based on some minor technicality... which as it turns out would get him off. Do you over turn it?

There are higher callings than procedural propriety, and while a Judge who bends the rules is breaking faith with the citizens of the country who placed him in that position, the Judge who allows an innocent man to be condemned to prison is doing /evil/.

One option that I have not seen discussed is resigning. A resignation letter that highlighted the dilemma would both allow the judge to keep his word to the populace and avoid actually committing the evil of condemning the innocent. It would also do some small good in bringing attention to the matter.

But it also means walking away from a lifetime of work -- becoming a federal judge is not an easy process. I hesitate to expect such self-possession from anyone these days.

-Michael E. Lopez
Highered Intelligence

Why affirm? Our laws are designed to separate the guilty from the innocent. We set up procedures that parties must follow with the idea that we punish the guilty and acquit the innocent. If that is the case, why this rush to affirm? This is not based on a feeling, but on an understanding of lying snitches who are frequently paraded in court in order to obtain conviction.

The comments speak to a general bias in favor of exoneration. As a defense attorney, I do not see that bias. I see jurors who are cynical and jaded, coming into court wanting to convict unless the defense attorney persuades them that they should not. I have seen a number of cases in which it is clear that someone is snitching in order to reduce his criminal exposure. Despite vigorous cross-examination, most jurors believe the snitch. The comments above seem to think this is an atypical example. I think it is far more common than expected and I think that any reasonable judge would view the evidence as described above as woefully inadequate. Unfortunately, not many judges would view this reasonably.

I share AKAttorney's approach. It's the job of a judge to provide justice. If all we wanted from judges was for them to apply rules as written, we'd replace them with computers. If a case comes before an appellate judge, and he has the power to reverse what he sees to be clearly an unjust outcome, he should do so.

If you as an appellate judge believe the person did not commit the crime you must reverse the case. It is common in Massachusetts for the justices to do this using some flimsy and transparent pretext to justify their actions. It is a simple case of judicial nullification. The problem with the example,however,is that if the verdict was so obviously wrong then I would have expected the trial judge should have taken the case away from the jury and acquitted the defendant either by directing a verdict of not guilty or by taking the verdict and then setting it aside.

Surely there is an alternative between affirming the conviction and acquiting. How about a simple remand for a new trial, with a strongly worded hint or two to the the trial judge about the appellate panel's (or judge's) view of the current state of the evidence. This could influence the trial judge on a defense motion for acquittal if nothing changes, etc.

I'm a prosecutor in a large city, and although I NEVER write in comments sections, I feel like I must do so here.

Keep in mind several things: the prosecutor's role is to seek the truth. The State presents only cases where there is probable cause to believe the defendant committed the crime in question. And most of us only present cases where we believe the defendant is guilty beyond a reasonable doubt.

The defense attorney and judge have no such obligations to truth. The defense attorney's role is to represent his client and protect the defendant's rights. The judge is there to ensure the case is presented according to the law, prevent any undue prejudice to the defense, and to instruct the jury.

Even so, the jury is the party with all the power - the jury evaluates the credibility of the testimony and the strength of the evidence (unless the defendant requests a court trial, anyway). The judge does not usurp the jury's power once the case has been passed to them for deliberations. Appellate courts are expected to give great deference to the decision-making role of a jury.

The jury saw the witnesses - observed their demeanor, heard the timbre of their voices, saw whether they shifted their eyes from place to place. The jury gets to see and touch the evidence. The jury sees the way the prosecutor behaves and whether she believes in her case through the way she presents it. The jury sees the defendant, notices the defendant's behaviour and considers the validity of the defense argument. They also consider their own experiences, history, and everything under the kitchen sink during their deliberations.

Exactly how is an appellate judge, 12 years later and maybe 6 counties (or states!) away more qualified than the jury to determine guilt or innocence? The defendant has bail reviews, preliminary hearings, suppression motions, trial, appeals, post-conviction, habeas corpus, parole hearings, and other procedures all designed to protect the rights of the particular defendant, as well as the rights of every accused person.

To later allow an appellate judge to disregard all these procedures in favour of his/her own speculation is unfair to every person involved in the system. Every single one of us is involved in that system by virtue of being citizens in the jurisdiction where criminal trials are held – being potential defendants, victims, witnesses, and jurors. One person so far removed ought not hold more power than the rest of us combined.

Appellate courts in fact tend to lean toward the prosecution, and often affirm on flimsy rationales such as "harmless error" for that reason.

Moreover, there are lots of innocent people in prison, though there are more guilty ones.

if factual innocence comes across as clearly as the hypothetical suggests, it should not be hard to find a non-harmless error (even the super-rare "insufficiency of the evidence"). If you read the 9th Circuit's opinions in the LA Daily Journal, you'll see fairly frequent reversals of immigration judges' denials of asylum on just that basis.

I'm not sure Kozinski's hypothetical is the best one to illustrate the point, but I see this sort of thing happening all of the time in the case law. I do civil litigation, not criminal, so the sort of thing I see is rules concerning personal jurisdiction or dismissal or summary judgement being bent to avoid dragging in a party from a distant state who can't afford to litigate (or conversely to force a corporate defendant to come to the local plaintiff's home turf), or getting rid of an obviously meritless or vexatious claim that nevertheless raises disputed issues of material fact. The problem is not usually in the actual case where the rules are "bent." It's in the next case down the road, where another judge takes the "bent" rule and applies it to dismiss a case that *very well* may have merit, or at least forces the parties to litigate an issue that ought to be clear, but isn't any more because of this precedent bending the rules.

I should start collecting examples; it's a fascinating and difficult issue that deserves more attention. Why *should* I have to go through discovery on this obviously meritless claim just because the complaint is well pleaded, if it's obvious it's going to fail when we get to the facts? Isn't that a waste of judicial and party resources? Is one solution to argue to appellate courts down the road, "Sure, Case X went that way, but look at the facts!" This may just push the "rule-bending" down one level -- i.e., ask the later appellate court to treat the apparently binding precedent as non-binding based not on the legal reasoning, but because the factual scenario may have given rise to a temptation to "bend."

Not being one to pick nits, and certainly never one to sail through waters I'm not qualified to read the charts on, I do have a few questions before I off and prejudge:
- How did this case get to the point of deliberation by the jury?
- Why was the man sentenced to life without parole by the presiding judge?
- What was the basis for the appeal? Subsidiary sarcastic question (temperament rating: D-) Was it for incompetent counsel, incompetent judge, 'loss of change of venue motion for 'can't get a fair trial in this emotionally charged jurisdiction', (are there any more?) since it wasn't until the appeal that substantial notice was made of this transparently unconvincing (per Judge Kozinski) testimony by any of the other, what, 25 or 30 other people involved in the case, most of which have ethical cannons to abide by or have sworn to do right and honorable things in effecting justice?

On a related note, and I'd sure appreciate correction, if appropriate, but I thought appeals were reviewed regarding issue(s) put forth to the appeals court by the appealing party. (Laymen to expert: You can't go in arguing for a win with an appeal on motive and come out with a win on weapon, can you?) Anyway, Judge Kozinski made the example sound to me like the appeal was, "Here's ten boxes of case documents. See if you can find fault with something." Yes, no system is infallible but this example doesn't indicate a system with competence written all over it, if every judge has to review "the record" as Judge Kozinski put it. Not to belabor the point but that sounds, in parallel fashion, like the CEO getting the 'ready to go' prospectus for taking the company public with a Post-It note inquiries on a couple of pages and the CEO checks the whole thing including for spelling errors.

Okay, now I'm ready. I'll take Pardons for $100, Mr. Volokh. (Hat tip: jlh - comment #1)

Dusty,

1) I've never seen a judge take a case from the jury in a criminal trial. Never. In Oklahoma, judges are elected, so that's just not going to happen.

2) Again, in Oklahoma, he wasn't. The jury would have deliberated and sentenced him one of three ways in a capital case: life, life w/o parole, or death.

3) I'd say that the issue on appeal was sufficiency of the evidence. IAC could be one as well. I very sincerely doubt that one arguing that the trial court abused its discretion in not taking the case from the jury would win, but they might have thrown that in there too.

"The record" generally includes the transcript of the trial, the judgment and sentence, and any exhibits. The judges, of course, do not get to go through all of that. This is why they have clerks, assistants, etc. The judges (or designees) do not search through everything themselves, but rather are directed to the "important parts" based on the briefs of the parties. It's possible that there could be some clear, egregious error that might merit reversal but if you don't raise that issue on appeal, tough luck.

I'm sure the judge writes in all good faith, but an appellate judge who, from a transcript, can be convinced to a moral certainty that jurors who convicted based on legally sufficient evidence erred and convicted an innocent man possesses an arrogance that borders on the frightening; as Justice Traynor has said, "one entrusted with decision...must also rise above the vanity of stubborn preconceptions, sometimes euphemistically called the courage of one's convictions. He knows well enough that he must disconnect his own predilections, of however high grade he regards them, which is to say he must bring to his intellectual labors a cleansing doubt of his omniscience...." R. Traynor, "Reasoning in a Circle of Law," 56 Val L Rev 739, 750-751 (1970).

Tim Baughman

You affirm. Reversing an otherwise solid conviction based on a so-called "moral" certainty is sanctioning judicial anarchy. The role of the judge is not to intrude into the provence of the trier of fact, but to insure that their conclusion was reached in accordance with applicable law and rules. Otherwise, why not allow judges to decide the case first and then submit it to a jury for their opinion? The math is the same.

I respect "prosecutryx" for her integrity if she describes the situation in her city fairly, but there is too much empirical evidence — especially since the introduction of DNA evidence, but even before — for anyone to make the claim that only prosecutors have a committment to "truth", not judges or juries!

More generally (speaking as a legal layperson and historian): the tension between substantive and procedural justice is very very old. One poster correctly mentioned Aristotle, but the distinction between common law and equity jurisdiction in England since the late Middle Ages is also relevant. Any bureaucratized and highly procedure-orient process, like the medieval common law or the modern American courts, will inevitably be inadequate to reality quite frequently, often with severe ethical consequences. That's assuming the best of will on all parts; when bad will is manifest, even relatively good procedural rules are generally helpless to protect defendants against vindictive or prejudiced prosecutors.

The flip side, as several posters have noted, is that the appeal to equity for judicial appeal also has its dangers: what separates it from "arbitrary" decision-making by those in power in the equity courts (which routinely are the more powerful people in society). Moreover, once equity jurisdiction is established as an independent form of judicial authority (as in the infamous court of Star Chamber), it is enormously tempting for people in power to use such courts to bypass the procedural baffles present in the routine/common-law system to be able to "get at" political opponents more easily. The Tudors made an art form of this in the 16th century, and Charles I's attempts to revive this art had a good deal to do with Parliament's insistence on abolishing the courts of equity jurisdiction in the 1640s and after.

I haven't read Kozinski's article, but it appears to explore the same set of issues in the contemporary American venue, with emphasis on a particular point in the system, and no dobut he knows the historical and philosophical background as well.

In the end though, what appears to be at stake is not a solveable problem (as posters who call for outright "affirm" [procedure was followed] or "reverse" [justice must be served"] seem to think), but a predicament that is inherent in the gap between an endlessly complex and particular world of human activity and the structured and confined playing field we call "the law". Any essay that reminds us that the predicament is permanent and without simple solutions is worthwhile, as is any contribution that tries to work out strategies for coping with the predicament that don't themselves produce even worse consequences (rigid casuistic treatment of difficult cases, on the one hand [mandatory sentencing rules, anyone?], or out-of-control courts on the other).

By the way, I do agree with those posters who reject (1) affirming and lobbying the governor, or (2) resigning. Judges are chosen and accept to position so that they can _judge_. But those who say that a judge who "reversed" in Kozinski's case would be simply acting on "opinion" are confused: judges are trained, both formally in law school and informally as legal practitioners, to make judgments within the legal system. That's more than "opinion", about which, as is well known, "non disputandum est." A judge's feelings about spinach or Impressionist paintings are opinions; her actions in court when faced in a court are (or damn well should be) judgments, for which she is answerable and which must be arguable intersubjectively.

I'm leery of any system that tries to _prescribe_ how judges must balance procedure and equity, though (since such systems simply become another layer of procedure). In the real world, I suspect, the most cogent posting is the one that points out that our legal system is such a thicket of rules already that almost ANY case will have procedural problems. Consequently, reveral (or affirmation) can be justified to suit the situation without simply opting for pure equity and throwing out the rulebook. Acting in such a way, then, is perhaps the finest example of phronesis or practical wisdom — and thus something that judges should feel no shame at all in doing IF it is ethically justifiable. (Again, there's a flip side, though: a judge can use inevitable procedural slips to let off the wealthy and powerful, or the members of his own political/religious/social team, or whatever, just as much as he can use them to gently correct unjust outcomes).

Hey, there's no end to judgement.

You guys who are arguing about the flip side of this example (an obviously guilty person who, if the law is applied correctly, will be set free on a technicality) should actually read Kozinski's article. He gives exactly such an example.

Are those who advocate judges "doing justice" over applying legal principles comfortable with their bending/breaking the law, to ensure a slam-dunk argument based on a technicality doesn't free a dangerous criminal?

I doubt it.

I believe I said I'd let them both go.

IANAL, but is the system set up so the judge only has two options (affirm or reverse) without the option of obtaining more info? If his review of the case makes him say "WTF?", what stops him from asking for more background?

Slightly OT: Several of the previous posts talk about cops shading the truth. Oddly enough, a few minutes ago I just read an account of such (if the blogger is to be believed). When you-all are done arguing about angels on the head of a pin, go read this:

http://fishorman.blogspot.com/2004/12/i-am-finished.html

If you can point the blogger to some help, leave a comment.

Some commenters have stated that an appellate court can not reverse on grounds not raised on appeal. But isn't that what the Ohio Supreme Court just did in reversing a murder conviction (on grounds that the murders took place in Pennsylvania) in a case which was recently mentioned on this blog.

I am not a lawyer.
1) It seems to me that following rules does not constitute justice in of itself.
2) Were the jurors appraised of the snitch's background. Any deals made with the prosecution?
3) How many pieces of information/evidence were excluded that the jurors did not see/hear?

When the government prosecutes:
1) For the individual, interpret the law in the most linient way possible.
2) For the government, hold them to the law.

The hypothetical case should be sent back for a retrial.

On related issues:
1) How many prosecutors, officers, etc. are prosecuted when they do things that are dishonest and cause an innocent to be convicted?
2) No double jeopardy? It depends on whether it is a "celebrity" case. You know, State vs. Federal. But again, it is a definition issue.

Jaime