Dissenting Judge Kozinski Recognizes Epidemic of Brady Suppression

Ninth Circuit Judge Kozinski may be a conservative, but he has long ago earned my respect for his honesty and ability to not simply tow the party line. His dissent in United States v Hicks, Ninth Circuit No. 10-36063 is no exception. It is rare that a dissent may be a call to action, but this case may be that exception.
Brady v Maryland prosecutors to disclose all evidence which is exculpatory in nature or which mitigates punishment. Unfortunately, in our adversarial system prosecutors are often tempted to bury this evidence. The problem comes with the fact that the person exercising this judgment has a conflicting obligation Moschus is to try and convict a defendant. What prosecutor is theoretically the Minister of Justice career advancement is normally based on convictions. Prosecutor to conceal evidence rarely phrase discipline for doing so and I virtually never prosecuted.
Kenneth Olsen was charged with developing chemical weapons of mass distraction. There was evidence presented at trial that he was attempting to develop the chemical ricin. The quantities impurities of this drug however were so low that the government was going to have a difficult time proving that the defendant had any intent to injure other people. To overcome this, the assistant United States attorney call Arnold Meinkhoff as their expert witness. Prosecutor concealed an internal investigation which showed huge problems with this expert witnesses integrity or level of care. Fourteen of his one hundred investigations which were audited showed serious problems.
This was never turned over to the defense counsel. The majority of the Ninth Circuit Court of Appeals upheld this nondisclosure. A majority of United States Court of Appeals for the Ninth Circuit then denied en band rehearing.Judge Kozinski not only dissented from the results in that case, but noted that Brady violations had reached epidemic proportions.
Judge Kozinski further wrote:
“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."

The problem is systemic. Prosecutors cannot be trusted to determine what evidence must be turned over to undercut their cases. Courts need to move this determination from the prosecutor to an independent master. Similarly forensics needs to be moved from an adversarial branch government to a branch under the court which is not incentivized in anyway to call a matter in one want manor or the other. These experts also need to be shielded from the other evidence and opinions in the case so that all they are determining is based on the evidence they are charge with investigating.

Wilful Blindness" Why Some Prosecutors Don't Want to Know About Police Perjury

The East Bay Express has a blog piece about the problem with police perjury and how many prosecutor’s do not think it is their obligation to check with police departments to see what history these officers have. Police who get caught lying are not always fired and when they are fired, they often stay in law enforcement -- just switching departments.


Some police departments maintain “Brady lists” of officers with troubled pasts. They try to keep these officers from being affiants in search warrants where possible and regard it as their duty to turn evidence of past scandals over to the defense. At least in California, however, there is no consistent policy about what is in a Brady policy or when a prosecutor has to go back to the police department looking for evidence of past lying on the part of a given officer.


The now disbanded California Commission on the Fair Administration of Justice had recommended in their 2008 report that prosecutor’s offices maintain strict and consistent Brady lists. Unfortunately, police departments have pushed back because they think that these lists will make these tainted cops unusable.


One of my new favorite blogs (the Open File) has a nice commentary on this article. The Open File about prosecutor misconduct and urging public accountability. Not surprisingly on the same page are articles about convictions being overturned because the police have failed to turn over more than 11,000 pages of exculpatory evidence in one case, of a federal judge in New Orleans overturning another conviction because their US Attorney’s Office elicited perjured testimony, and a 9th Circuit case overturning a money laundering case because the declassified summaries turned over to defense counsel were misleading and withheld favorable evidence.

As I was about hit the “publish button” on my software, I saw today’s story about Debra Milke, the German mother convicted of aiding and abetting the murder of her son and received the death penalty. The Maricopa County Arizona prosecutor had concealed the fact that the police officer who supposedly took her undocument “confession” had a long history of perjury. Not surprisingly, the prosecutor concealed evidence that the police had a history of perjury. Despite the fact that there was four incidents of perjury by the officer he was kept on the force. Judge Kozinski’s opinion can be found here. Chief Judge Kozinski is the chief judge of the Ninth Circuit a independent minded conservative. Despite the Arizona’s Attorney General’s vow to appeal this ruling, I don’t think he has much chance. While the US Supreme Court has not been kind to the Ninth Circuit, this error strongly suggests actual innocence and seems to be within the four corners of Brady.

Sixty Minutes Profiles Texas Exoneree Michael Martin

Tonight’s 60 Minutes had an interest story (possibly a rerun) on Texas Exoneree Michael Martin. Mr. Martin was convicted of murdering his wife because the prosecution had hid various reports showing that the police had contemporaneous reports which showed that the Defendant’s three year old son had exculpated the Defendant. The police buried it. The prosecution fought the Defendant’s request for a DNA test for five years. The test showed that the someone else committed the crime.

Great Brady Decision from SCOTUS


The Supreme Court has declined to extend constitutional safeguards against the use of some eyewitness testimony at criminal trials, ruling against a New Hampshire man who was convicted of theft. Perry v. New Hampshire, 10-8974.

The court voted 8-1 Wednesday to turn away Barion Perry's claim that courts should be able to exclude eyewitness testimony when identifications are made under suggestive circumstances, even when there is no evidence of manipulation by the police. Judges can already can bar testimony when the police do something to influence a witness to identify a suspect.

Justice Ruth Bader Ginsburg said in her opinion for the court that in cases with no police misconduct, juries can weigh the reliability of eyewitness testimony. Justice Sonia Sotomayor wrote a dissenting opinion. The decision may not be as awful as many members of the criminal bar first thought. While the Court refuses to move the due process clause to follow the science of bad eye witness identification, it does so only based on the notion of the lack of state action in that case. In cases involving state actors there is a little more hope. On p. 9, n. 5, the majority restates the 20 year old Neil/Manson factors. The good news is that it lists the five factors is non-exclusive. The Court makes it clear that the five traditional factors are among the 'factors to be considered.’” This seems to suggests that could could ask a Court to consider many more factors, such as the laundry list stated by other courts, particularly the recent decision of the New Jersey Supreme Court. The bad news is that the Court fails to address the scientific criticisms of the Manson factors, which the State is likely to read as implicitly reaffirming them. This was a lost opportunity to fix binding federal precedent which is unarguably scientifically flawed -- the states can follow Henderson and ditch the test as a matter of state constitutional law. Still, the Court ignored forty-five years of scientific research on the subject and that is troubling.


Lansing Journal Calls for Regime Change in Ingham County Prosecutor's Office

Last week, the Lansing State Journal took the unusual action of calling for the ouster of incumbent chief prosecutor Stuart Dunning. According to the Journal: “That day also should be the end of his prosecutorial career. Ingham County voters must look elsewhere on Nov. 4 for someone to lead the Prosecutor's Office; someone who can gain and hold the public trust. Dunnings clearly cannot.” The Journal did not endorse Dunning’s opponent (J. Nicholas Bostic). Instead, it concluded by noting: “At this time, it's unclear who would be the best person to lead the Prosecutor's Office in 2009. What is clear, though, is it should not be Stuart Dunnings III.”