The chief judge of a federal court of appeals has denounced “an epidemic of Brady violations abroad in the land.” The judge, Alex Kozinski, wrote on the subject in his dissent in United States v. Kenneth R. Olsen, Docket Nos. 10-36063 and 10-36064, issued December 10, 2013 by the United States Court of Appeals for the Ninth Circuit. Four other judges of the court joined his dissent.
The Brady rule, named for a Supreme Court case decided in 1963, requires prosecutors to disclose to criminal defendants all material exculpatory evidence—evidence that could lead to their acquittal at trial.
Arnold Melnikoff was a Washington State Police forensic scientist whose laboratory tests helped convict Olsen of knowingly developing a biological agent for use as a weapon. Unknown to Olsen or his attorney, Melnikoff had been investigated by the state patrol and found to have done sloppy and incompetent lab work in many cases. The first episode that came to light was Melnikoff’s faulty hair sample analysis that resulted in the wrongful conviction of a man for raping an 8-year-old girl; the man was exonerated by DNA analysis only after 15 years in prison.
The federal prosecutor in Olsen’s case made no effort to learn the scope or findings of the state’s investigation of Melnikoff and made misleading statements on the subject to Melnikoff’s judge before the trial.
Kozinski said the affirmance of Olsen’s conviction could have effects far beyond Olsen:
[The decision] 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]ll 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. Criminal liability for causing an innocent man to lose decades of his life behind bars is practically unheard of. 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.
(Kozinski cited the recent case of Texas prosecutor Ken Anderson, reported here, as the extremely rare example of criminal liability for a prosecutor.)
State official Elizabeth Brown repeatedly tried to inform the federal prosecutor about the investigation of Melnikoff. So far as the record showed, he only once returned one of Brown’s calls, leaving her a message; when she returned his call, he did not call her back.
Kozinski concluded the federal prosecutor didn’t take seriously his obligation to receive and relay to the defense exculpatory evidence:
Is there any doubt that if the Assistant U.S. Attorney had thought Brown had inculpatory evidence to provide him, he would have managed to connect with her? Or if these messages had been from a doctor or broker or child’s schoolteacher? We can be sure that the Assistant U.S. Attorney would have found the time for an extra phone call. But protecting the constitutional rights of the accused was just not very high on this prosecutor’s list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one’s daily errands signifies a systemic problem: Some prosecutors don’t care about Brady because courts don’t make them care.
Kozinski went on to observe that the case was not unusual:
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.
Kozinksi noted that the “rogue … forensic expert” in the case also fit a much larger problem. He listed forensic scientists in other states whose misconduct had played out over thousands of cases. He wrote:
Because modern criminal trials frequently turn on forensic reports, these incidents of misconduct raise the frightening prospect that many of the over 1.5 million people now populating state and federal prisons might, in fact, be innocent. How do rogue forensic scientists and other bad cops thrive in our criminal justice system? The simple answer is that some prosecutors turn a blind eye to such misconduct because they’re more interested in gaining a conviction than achieving a just result.
The majority decision, Kozinski said in conclusion, had “shrugged off” an egregious Brady violation.