What the hell is going on in America?

The federal judiciary — which previously could be counted upon to be relatively complacent in the face of a culture of prosecutorial misconduct — has begun to take notice and harumph and even do something about it. In January a Ninth Circuit panel blasted state prosecutors defending a conviction won with perjury. Ninth Circuit Judge Alex Kozinski has started a blunt public and academic discussion of misconduct as a systemic problem. This week the Fifth Circuit cited prosecutorial misconduct — including federal prosecutors commenting on cases online under pseudonyms — in overturning the federal convictions of some murderous New Orleans police officers.

This is a trickle, not a tide. But normally federal judicial recognition of the problem of misconduct is a parched desert; any relief is notable. And in the last two months, judges have even questioned one of law enforcement's most cherished methods of gaming the system — leaks to the press. The situation raises questions not just about government misconduct, but about how the press addresses such misconduct.

This story comes courtesy of the Los Angeles Daily Journal, the best legal paper in the United States as measured by willingness to print my columns. Regrettably it's behind a paywall. Reporter L.J. Williamson ably told the story of yet another tumultuous hearing before the Ninth Circuit.

The case before the Ninth Circuit wasn't a criminal prosecution — it was an immigration case. Rodriguez v. Robbins is a sprawling ongoing litigation about when Immigration and Customs Enforcement must allow alien detainees to have bond hearings — that is, when they are entitled, in the course of the lengthy process of determining whether or not they will be deported, to a hearing on whether they may be released on bail pending a ruling on their arguments against deportation. In 2013, in an opinion written by Ninth Circuit Judge Kim McLane Wardlaw, the Ninth Circuit upheld the trial court's preliminary injunction requiring ICE to give bail hearings to some classes of detainees.

That didn't end the case; the ruling only concerned a preliminary injunction. The case returned to the Ninth Circuit in July 2015. Several days before the July 24, 2015 oral argument, the Los Angeles Times ran a story about an alien named Keane Dean, accused of sexually assaulting a 14-year-old girl. The article quoted unnamed "federal authorities" about Dean recently having been released on bail during immigration proceedings, and referenced the ongoing Ninth Circuit litigation. The Times quoted Judge Wardlaw's 2013 opinion in Rodriguez:

"This injunction will not flood our streets with fearsome criminals seeking to escape the force of American immigration law," Judge Kim Wardlaw of the U.S. 9th Circuit Court of Appeals wrote in an April 2013 opinion affirming the need for the bond hearings.

The implication, of course, was that the Ninth Circuit had made a foolish mistake. There wasn't any analysis of Dean's bail hearing and why an immigration judge made a bad call about his suitability for bail. Aliens are only entitled to bail, even under the Ninth Circuit's ruling, if they aren't a flight risk or danger to the community.

Three days later, at the Ninth Circuit oral argument on the ongoing Rodriguez case, U.S. Department of Justice attorney Sarah Stevens Wilson referred to the article before the three-judge panel in support of the government's position that bail hearings ought not be required as broadly as the plaintiffs demanded. This was unusual. Appeals are supposed to be decided based on facts in the record — that is, facts that were filed with the trial court or introduced on the record in the trial court. There's a formal procedure for expanding the record on appeal, but it's cumbersome, not used very often, and not generally used to cite supportive L.A. Times articles. Wilson's argument was, in effect, an appeal to a parade of horribles as evidenced by a news piece outside the record. She suggested that Dean's case shows why the bail hearing required by the court, and the burden of proof of dangerousness or flight risk imposed on the government, would lead to dangerous aliens being released.

Reaction was swift and merciless — to Wilson. You can watch the video here. The action starts at about 10:40 on the video. Judge Wardlaw immediately noted that though Dean was charged with a state crime, the article opened with information provided by unnamed federal authorities. She asked Wilson if she knew who that was. Wilson said she didn't know. Judge Wardlaw indicated she wanted to see the transcripts of Dean's bond hearing to see why the immigration judge — an official who is an Executive Branch employee, appointed by the Department of Justice in a notoriously political process — would release a previously convicted sex offender. Judge Wardlaw made her implication even clearer than Wilson did — the Department of Justice was effectively arguing that it needed a tougher standard for bail because it couldn't trust its own employees not to screw up. "I'm not sure anyone else would have made that decision," said Wardlaw, referring to the improvident grant of bail.

Wardlaw also asked Wilson whether "federal authorities" had released the information to the Times days before the hearing in an effort to influence the proceedings, and said that the court would be ordering an inquiry into the identity of the leakers. "You're not the press and you don't have the right to protect that information," she said ominously. And, at about 14:20 on the video: "You do realize that it would not be ethical or proper, and possibly even criminal, to give information to the LA Times to possibly influence the outcome of this hearing." Wardlaw concluded by noting that the article was not in the record and wasn't properly cited. "I really wished you hadn't raised this," said Judge Wardlaw, who clearly had seen the article and was waiting, seething, to see if the government made a play based on it. It's a very uncomfortable moment for Wilson, who stands up pretty well under the pressure.

Last week, the Ninth Circuit followed up with an order to show cause — an order telling the government to explain why the court should not issue sanctions based on the oral argument. The order does not openly accuse the government of leaking information to influence the court, but notes that "federal authorities" provided information and that the Department of Justice then cited the information a few days later. The court also demanded copies of transcripts and documents about Dean's bond hearings. The court wants to know why the government cited an article not in the record sourced to an anonymous federal employee, and wants to know why the government's own employee made the terrible bail decision that the government is now trying to blame on the court. This does not bode well for the government.

If someone in the government did leak information in order to influence the Rodriguez litigation, it's not most egregious government leak ever. Administrative judge proceedings, including bail hearings, generally aren't private, and the decision makers being influenced are appellate judges, not a jury. This isn't like, for instance, law enforcement leaking evidence to the papers to influence a criminal trial. The federal employees may not have broken the law; they may have just fed leads and arguments and information (like the precise Judge Wardlaw quote to use to frame the story) to the press to influence the hearing. But it could be the clumsiest leak ever. The decision to raise the article before the court — before the very judge not-very-subtly-bashed in the article — showed extremely bad judgment.

The problem illuminated here isn't just one of possible government misconduct. It's the too-cozy too-credulous relationship between law enforcement and the press, and the very questionable decisions the press makes about what is a story. I've been writing about this for some time. The press thinks that a picture of a guy being perp-walked is a story, but the willingness of the cops to stage that picture to humiliate the defendant is not a story. The press thinks that juicy evidence against a defendant is a story but law enforcement's motive in leaking that evidence isn't. When the people sworn to uphold the law, who are prosecuting someone for violating the law, break the law to damage a defendant, the press thinks that the leaked information is the story, not the lawbreaking by law enforcers. The press does not, as far as I can tell, assess when it is being used as a tool by law enforcement. How could it, if it wants to preserve its source of tasty leaks?

I reached out to Cindy Chang, the reporter on the LA Times story, for comment. I knew she wouldn't reveal her federal source. But this is what I wanted to ask her: if she knew that the people who leaked the information to her were involved in the litigation before the Ninth Circuit, would she regard that as newsworthy? How would she reconcile the newsworthiness of that fact with her obligation to keep the identity of a source confidential? Does she believe it is newsworthy if a law enforcement source leaks information in order to influence ongoing litigation, or in order to embarrass a judge or opposing lawyer or party in that litigation? If law enforcement officials are willing to break the law in the course of leaking information to her, does she regard that as newsworthy? Finally, if the U.S. Department of Justice responds to the court's Order to Show Cause, and says something about the leak she knows is not true, will that at least be newsworthy? How would she reconcile her obligation to protect her source with the newsworthiness of the government lying? Ms. Chang cordially and professionally indicated she couldn't comment herself. I'll let you know if anyone else from the times comments.

If you think the last question is ridiculous, I submit that you are wrong. Don't forget the BALCO case, in which a defense attorney leaked secret grand jury transcripts to the press and then filed motions demanding that the court dismiss the case because the government must have leaked them. That instance suggested that the press' obeisance to leakers isn't necessarily about being pro-government; it's about valuing headlines over justice.

If we're seeing a real trend towards federal judges taking a firmer hand with prosecutorial misconduct, I'm thrilled. But I wouldn't regard the press as a reliable ally in that process.

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