An epidemic of injustice

"There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."

This is not a quote from a criminal defense attorney. This comes from Chief Judge Alex Kozinski of the 9th Circuit Court of Appeals. These words open a most powerful dissent in U.S. v. Olsen, here. In Olsen, the full 9th Circuit denied a defense request for a rehearing in a case where the federal prosecutor both knowingly hid favorable evidence from the defense and misled the trial judge about the status and import of that evidence while Mr. Olsen's federal criminal case was pending.

Mr. Olsen was convicted after trial of producing ricin as a weapon. The government relied on the testimony of a forensic scientist whose work it turns out was the subject of highly critical investigations and who was terminated from his official employ for incompetency and gross misconduct. His work in Mr. Olsen's case was also suspect. However, the federal prosecutor who was aware of these findings did not feel it necessary to report them to the defense and went even so far as to misrepresent the investigation to the trial judge.

Fundamental notions of due process and fair play underlie the Constitutional obligation of the prosecution to seek out and disclose the existence of evidence favorable to the accused. According to the Supreme Court, this duty extends beyond the prosecution itself to all those who are acting on their behalf. This simple and straightforward rule is routinely ignored by both the prosecution and the courts who are charged with its enforcement.

Often in our cases, we have confronted at the trial level the refusal of the prosecution to seek out and turn over favorable evidence ("Brady evidence" in legalese.) Much of this difficulty stems from appellate case law that stands for the proposition that in order to result in a new trial the evidence that was not turned over must have been "material" to the defense. Often when we request favorable or "exculpatory" evidence from the prosecution we are met with claims at the trial court level that the evidence sought is "not material," and therefore the prosecution has no duty to divulge it.

This is a widespread misapplication of the principles at issue. Before and at trial, the prosecutor's constitutional duty is to seek out and disclose potentially exculpatory (favorable) evidence. Whether or not that potentially favorable evidence is material or not has no place in the trial level debate over whether the material is itself subject to production and disclosure. Rather, if after a conviction it turns out that the prosecution failed somehow in its duty to turn over favorable evidence, the appellate court must then go on to determine whether or not a new trial is appropriate. Whether or not a new trial is appropriate depends on whether the evidence suppressed by the government would have been material to the conviction itself.

Unfortunately and routinely trial courts misconstrue the defense's request to enforce the prosecutor's "Brady" obligations to seek out and produce favorable evidence with the sub-constitutional laws dealing with what lawyers refer to as "discovery." Simply put all state and federal courts have laws and rules regarding what information ("discovery") the government must provide to the defense in a criminal case. Almost all discovery laws and rules we are familiar with are quite specific in scope and almost always there is case law preventing the defense from conducting overbroad discovery investigation. We read constantly about defense discovery "fishing expeditions" etc.

While the scope of each jurisdiction's discovery statutes and rules vary greatly, none illuminate the separate and higher constitutional Brady obligations of the prosecution. They are entirely separate and unequal doctrines. Yet trial court routinely conflates the two and fall back on notions of discovery law to abdicate their role as the enforcers of the defendant's constitutional rights.

If you are facing criminal charges, you must know that the deck is stacked against you. It is not a fair playing field. And, at least in ensuring that the prosecutor lives up to his or her Constitutional duty to seek out and disclose evidence favorable to you or your case, the courts have proven woefully inadequate. Judge Kozinski say it best in Olsen:

I wish I could say that the prosecutor's unprofessionalism here is the exception, that his propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors' offices across the country. But it wouldn't be true. Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend.

Do yourself a favor and higher an experienced and aggressive criminal defense attorney, and hold the prosecution and the courts to the Constitutional promise they so easily abandon.


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