Are Brady Violations Epidemic? (12/11/13)

Judge Alex Kozinski (Wikipedia here), of the Ninth Circuit, has a blistering dissent to the denial of rehearing en banc in an alleged Brady violation case.  Brady v. Maryland, 373 U.S. 83, 83 (1963), here., see also Giglio v. United States, 405 U.S. 150, 153-54 (1972), here. The denial of rehearing en banc, with Judge Kozinski's dissent, is United States v. Olsen, ___ F.3d ___, 2013 U.S. App. LEXIS 24500 (9th Cir. 2013), here  The original panel opinion in the case is United States v. Olsen, 704 F.3d 1172 (9th Cir. 2013), here.

In broad sweep, perhaps the key evidence of guilt were spiked allergy pills that the prosecutor urged were spiked by the defendant.  But, the defendant alleged, the pills had been spiked by the state forensic investigator, one Melnifoff.  Well before the trial, that investigator was under investigation because of possibly intentional errors in other cases.  Although the defense knew of the investigation, the prosecutor down-played its significance and relevance to the case, and apparently did not take the trouble to learn the scope of the investigation which, by trial, had been completed and cast doubt on the investigator's diligence and credibility in other cases.  Judge Kozinski read the record as:

Nearly everything the district judge understood to be true was false. But the prosecutor did not correct the district judge, who then concluded that it would be "unfair to Mr. Melnikoff to allow counsel to delve into this issue" and "under an analysis of [Federal Rule of Evidence] 403, it just would be improper to go into that." As a result, the government introduced the spiked allergy pills and the jury heard Melnikoff's testimony, all without ever being informed of these serious doubts about their reliability.

The original unanimous panel opinion rejected Olsen's claim of a Brady violation, finding that, although perhaps more correct information should have been disclosed, the defendant had not shown the required probability that the correct information would have affected the outcome of the case, given the compelling force of evidence of guilt.  Olsen questioned that holding by petition for rehearing.  The petition was denied because "the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration."  Judge Kozinski dissented, with Judges Pregerson, Reinhardt, Thomas and Watford joining the dissent..

Judge Kozinski is good at the opening lines, and he does not disappoint.

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

The facts of the case eliciting the sweeping statement can be reviewed in  the case.  I focus here on Judge Kozinski's broader claim of an epidemic of Brady violations.  I also incorporate some of his general statements of the state of Brady law.  Here are key excerpts (footnotes omitted):

Brady holds that a prosecutor violates due process when he (1) suppresses evidence (2) that is favorable to the defendant, when that evidence (3) is material to guilt or innocence. Id. at 87. This extends to evidence that bears upon the credibility of a government witness. Giglio v. United States, 405 U.S. 150, 153-54, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). The panel expressly recognizes that the report was favorable to Olsen; nevertheless it dismisses Olsen's complaint on the ground that the WSP report wasn't material. Olsen, 704 F.3d at 1183-87.

Evidence is material under Brady if it creates "a 'reasonable probability' of a different result." Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). "A reasonable probability does not mean that the defendant 'would more likely than not have received a different verdict with the evidence,' only that the likelihood of a different result is great enough to 'undermine[] confidence in the outcome of the trial." Smith v. Cain, 132 S. Ct. 627, 630, 181 L. Ed. 2d 571 (2012) (quoting Kyles, 514 U.S. at 434). To say that the undisclosed information wasn't material, a court must conclude that the other evidence was so overwhelming that, even if the withheld evidence had been presented to the jury, there would be no "reasonable probability" that it would have acquitted. This standard isn't satisfied if "the State's argument offers a reason that the jury could have disbelieved [the undisclosed evidence], but gives us no confidence that it would have done so." Id.

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The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here. 

A robust and rigorously enforced Brady rule is imperative because all the incentives prosecutors confront encourage them not to discover or disclose exculpatory evidence. Due to the nature of a Brady violation, it's highly unlikely wrongdoing will ever come to light in the first place. This creates a serious moral hazard for those prosecutors who are more interested in winning a conviction than serving justice. In the rare event that the suppressed evidence does surface, the consequences usually leave the prosecution no worse than had it complied with Brady from the outset. Professional discipline is rare, and violations seldom give rise to liability for money damages. See, e.g., Connick v. Thompson, 131 S. Ct. 1350, 1366, 179 L. Ed. 2d 417 (2011). Criminal liability for causing an innocent man to lose decades of his life behind bars is practically unheard of. See, e.g., Nathan Koppel, Texas Ex-Prosecutor Gets Brief Jail Time for Misconduct, Wall St. J., Nov. 9-10, 2013, at A5 (reporting that Texas settled civil and criminal misconduct charges against former prosecutor Ken Anderson, whose suppression of evidence in a murder trial resulted in the defendant spending 25 years in prison, in exchange for Anderson "forfeit[ing] his law license, [] serv[ing] up to 10 days in jail, pay[ing] a $500 fine and perform[ing] 500 hours of community service"). If the violation is found to be material (a standard that will almost never be met under the panel's construction), the prosecution gets a do-over, making it no worse off than if it had disclosed the evidence in the first place. 

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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. [String case citations omitted]  

When a public official behaves with such casual disregard for his constitutional obligations and the rights of the accused, it erodes the public's trust in our justice system, and chips away at the foundational premises of the rule of law. When such transgressions are acknowledged yet forgiven by the courts, we endorse and invite their repetition. 

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We must send prosecutors a clear message: Betray Brady, give short shrift to Giglio, and you will lose your ill-gotten conviction. Unfortunately, the panel's decision sends the opposite message. The panel shrugs off an egregious Brady violation as immaterial. Had Melnikoff been fully impeached, the only evidence from which the prosecutor could've proven Olsen's intent to use ricin as a weapon would have been a few Google searches and bookstore receipts. This is surely enough to show a reasonable probability of a different result. By raising the materiality bar impossibly high, the panel invites prosecutors to avert their gaze from exculpatory evidence, secure in the belief that, if it turns up after the defendant has been convicted, judges will dismiss the Brady violation as immaterial. 

On these facts, I would easily find a Brady violation.  * * *

Brady responsibilities are, of course, present in all criminal prosecutions.  Readers wanted to see other of my blog discussions about Brady may do so by clicking the link below.

As I said, Judge Kozinski is good at the opening line.  Here is my personal favorite because it deals with the defraud / Klein conspiracy so prevalent in tax prosecutions:

We consider whether conspiring to make the government's job harder is, without more, a federal crime.

United States v. Caldwell, 989 F.2d 1056 (9th Cir. 1993), here, a case which reined in the Government's overly expansive interpretations of the defraud conspiracy (commonly called the Klein conspiracy in a tax setting, but really a Hammerschmidt conspiracy because the Hammerschmidt case, a nontax case, is the law of the defraud conspiracy).

Thanks to Robert Horvitz, here, for bringing Judge Kozinski's dissent in Olsen to my attention.

Addendum 12/12/13 7:30 am:

The estimable Jonathan Turley blogged this entry on Olsen:  Chief Judge Writes Scathing Dissent Warning of “Epidemic Of Brady Violations” By The Justice Department (Jonathan Turley Blog 9/11/13), here.

Excerpts.

I have long been a fan of the opinions of Chief Judge Alex Kozinski. While we disagree on many cases, Kozinksi often defies predictions and more ideological colleagues in ruling against the government. Chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals and considered a leading libertarian, Kozinski often rules in favor of individual rights — making him a refreshing voice on the federal courts which tend not only to be highly conservative on police powers but also populated by a disproportionate number of former prosecutors. Kozinski’s dissenting opinion this week in the case of Kenneth Olsen continues that legacy and further puts the bias of the federal court in favor of prosecutors into sharp relief. Kozinski opposed the denial of an en banc rehearing with four of this colleagues in the case of Kenneth Olsen, whose trial was marked by prosecutorial abuse. Kozinski began his decision with the chilling but true observation that “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” They didn’t. The court voted overwhelmingly to deny a rehearing in United States v. Olsen, 704 F.3d 1172, 1177 (9th Cir. 2013), a case where the Justice Department failed to fully disclose exculpatory evidence. For those who have been objecting to the expansion and abuse of police powers, it is important to remember that these abuses only continue because federal judges turn a blind eye to them. 

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The Justice Department has a long and troubling record of prosecutorial abuse and particularly Brady violations (here and here and here). This problem persists because of the Department’s culture and tolerance for such abuses. The Office of Professional Responsibility (OPR) has been the subject of long-standing complaints for its failure to act on allegations. I have personally had occasion to bring a couple complaints to the Justice Department of extremely serious misconduct by prosecutors and saw no action taken by OPR.  

Kozinski’s opinion is much appreciated given this record but it clearly fell on deaf ears with his colleagues.

Turley's blogs usually draw interesting and often informative comments, so I recommend that readers at least browse the comments.

JAT Comment:  In my mind, the known instances of at least probable Brady violations are troubling.  I suspect, however, that many, perhaps most, Brady violations do not  become known for a host of reasons.  Only by sending a message with the known violations is there any hope to give prosecutors the incentive, at least in most cases (if for no other reason than fear of disclosure), to meet their Brady obligations.

Addendum 1/4/14 7:00pm:

The New York Times has this editorial:  Rampant Prosecutorial Misconduct (NYT Editorial 1/4/14), here.  Key excerpts:

In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence. 

Yet far too often, state and federal prosecutors fail to fulfill that constitutional duty, and far too rarely do courts hold them accountable. Last month, Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, issued the most stinging indictment of this systemic failure in recent memory. “There is an epidemic of Brady violations abroad in the land,” Judge Kozinski wrote in dissent from a ruling against a man who argued that prosecutors had withheld crucial evidence in his case. “Only judges can put a stop to it.”

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The Brady problem is in many ways structural. Prosecutors have the task of deciding when a piece of evidence would be helpful to the defense. But since it is their job to believe in the defendant’s guilt, they have little incentive to turn over, say, a single piece of exculpatory evidence when they are sitting on what they see as a mountain of evidence proving guilt. The lack of professional consequences for failing to disclose exculpatory evidence only makes the breach of duty more likely. As Judge Kozinski wrote, “Some prosecutors don’t care about Brady because courts don’t make them care.” 

Courts should heed Judge Kozinski’s call, but it will take more than judges to fix the problem. Prosecutors’ offices should adopt a standard “open file” policy, which would involve turning over all exculpatory evidence as a rule, thus reducing the potential for error. 

Fighting prosecutorial misconduct is not only about protecting the innocent. It is, as Judge Kozinski wrote, about preserving “the public’s trust in our justice system,” and the foundation of the rule of law.