A Conversation on Criminal Justice With Joel Cohen

Wayward prosecutors, wrongful convictions, and racial bias in the criminal justice system are the stuff of front-page news these days—sometimes all at once—with heated debates raging on social media and in courtrooms across the country.

Lawyer and author Joel Cohen adds to the discourse on these topics and others with his latest effort, Broken Scales: Reflections on Injustice (American Bar Association 2017). The book contains ten interviews that Cohen, of counsel at Stroock & Stroock & Lavan LLP, New York—along with co-author and law firm colleague Dale J. Degenshein—conducted of a diverse set of players in the legal system: lawyers, judges, a juror, and, more than once, the accused.

Through these interviews, Cohen takes the reader on the personal journeys of these players, whose dramas unfolded over the last several decades, from mid-century McCarthyism through the ongoing War on Terror. In a conversation with Bloomberg Law, Cohen discussed Broken Scales and the myriad criminal justice—or injustice—issues it brings to the fore.

Two Standouts

Of the ten interviews in the book, two stand out to Cohen.

He noted the case of Abdallah Higazy, an Egyptian-born student who, in the wake of 9/11, ultimately confessed to possessing a radio transceiver that the FBI believed was used to aid in the terrorist attacks.

But it wasn’t used in the attacks and it wasn’t even Higazy’s. He was framed by a self-styled patriot.

Higazy wasn’t beaten physically, but the FBI still elicited an untrue confession from him, Cohen pointed out. Agents had made thinly veiled threats against Higazy’s family in Egypt.

The Higazy case is “extraordinary,” Cohen said, if only because Higazy currently harbors no animus against the United States despite what he went through.

The other interviewee who looms large in Cohen’s mind is Marty Stroud, the white former prosecutor who selected the all-white jury that convicted Glenn Ford, a black man who was later exonerated.

Stroud’s sadness “dripped” during the interview, Cohen said.

The former prosecutor told Cohen he can’t forgive himself for having played a part in convicting a man who spent 30 years on death row for a crime he didn’t commit.

Now a defense lawyer, Stroud says he wakes up every day with the feeling of a hole in his stomach, and a “cold emptiness with the north-wind blowing straight through it.”

“There’s no happy ending here that I can see,” Stroud told Cohen.

Brady ‘Epidemic’

When asked about the most pressing issue facing America’s criminal justice system today, Cohen said it’s “an epidemic of Brady violations,” referring to the Supreme Court’s landmark 1963 decision that said prosecutors must turn over exculpatory evidence to the defense.

Dissenting in a 2013 case, then-Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit said, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” Kozinski has since resigned from the bench.

There should be “open file discovery” in criminal cases, Cohen said, whereby the defense largely has access to the same information about the case as the prosecution.

The Brady issue brought to Cohen’s mind his interview of Miriam Moskowitz, who was prosecuted during the anti-communist hysteria that followed World War II, before Brady and other pro-disclosure cases and statutes came about.

Moskowitz’s case was a run-up to the prosecution of Julius and Ethel Rosenberg for giving U.S. secrets to the Russians. She was convicted of conspiring to obstruct justice by encouraging others to lie to a grand jury investigating Soviet espionage.

But given the state of the law at the time, the government didn’t disclose statements made by Moskowitz’s accuser that she says would have helped her defense.

Moskowitz also had the same lawyer as her co-defendant. “We should have had separate trials,” she told Cohen.

Trump, Immigration

Though more than one of the interviews in Broken Scales may call the Trump administration to mind—like the fact that Moskowitz was prosecuted by Roy Cohn, McCarthy’s “right hand man” who later became Trump’s attorney and mentor—Cohen says just one of his interviews was “very influenced by Trump.”

That’s the interview of immigration judge Afsaneh Ashley Tabaddor.

Tabaddor, a Muslim born in Iran, was appointed an immigration judge by George W. Bush’s attorney general, Alberto Gonzalez. In 2012, during Barack Obama’s tenure, she was invited to and attended an event at the White House for Iranian-American community leaders.

But executive authorities under the Obama administration still ordered Tabaddor to recuse herself from cases where a party was from Iran, to avoid the “appearance of impropriety.” She filed a complaint with the EEOC.

Tabaddor was initially reluctant to be interviewed for the book given the controversy it could cause, Cohen said. But then, after some time passed, she was ready to talk.

Tabaddor was motivated by then-presidential-candidate Trump’s attacks on Judge Gonzalo Curiel, Cohen said.

Curiel, a federal judge in California, presided over a fraud case against Trump University, the for-profit education company that bears the now-president’s name.

Trump had accused Curiel of bias in the case because the judge is “Mexican,” Trump said, and Trump had pledged to build a wall on the Mexican border that, he claimed, Mexico would pay for.

Mexico has declined to pay for the wall, and the Trump administration has recently proposed that American taxpayers fund a multi-billion dollar effort to pay for it.

When Cohen asked about appearing before judges who may empathize with a particular viewpoint, Tabaddor said, “Whether you are facing Justice [Thurgood] Marshall or Justice Clarence Thomas, you are before a human being who has sworn to administer the law in an impartial manner.”