Judges must apply the law as written, not as their instincts tell them Congress probably meant it. Language, when properly interpreted and literally applied, provides a meaningful constraint on judicial action; when we allow ourselves to be guided by intuition that Congress didn’t really mean what it said, we are no longer interpreting laws, we are making them.
—  United States v. Phelps, 895 F.2d 1281 (9th Cir. 1990) abrogated by Smith v. United States, 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993)

California Prosecutor Falsifies Transcript of Confession

When will they ever learn? Ninth Circuit Judge Alex Kozinski declared months ago in a much-quoted opinion that there is “an epidemic of Brady violations abroad in the land.” And yet, prosecutors continue to deny there’s a problem. Indeed, the Department of Justice gets outright indignant at the suggestion, and so do many state court prosecutors. They bristle at the very mention of the possibility.

But here’s another doozy: The People (of California) v. Efrain Velasco-Palacios. In this unpublished opinion from the Fifth Appellate District, the California Court of Appeal reveals that state prosecutors and California Attorney General Kamala Harris continue to be part of the problem. Kern County prosecutor Robert Murray committed “outrageous government misconduct.” Ms. Harris and her staff defended the indefensible—California State prosecutor Murray flat out falsified a transcript of a defendant’s confession.

There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.

United States v. Pineda-Moreno

617 F.3d 1120 (9th Cir. 2010)