Fed. Judge: Prosecutorial Misconduct an ‘Epidemic’

Federal Judge Alex Kozinski, the chief judge of the 9th Circuit Court of Appeals, declared in a dissenting opinion in a case that prosecutorial misconduct — in this case withholding important information from defense attorneys — is an epidemic in this country. Radley Balko has the details.

Judge Kozinski begins his dissent by saying, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” Balko explains what that means:

Brady of course is shorthand for the Supreme Court decision that requires prosecutors to turn over exculpatory evidence to defense attorneys. In Olsen, a decision released this week, the 9th Circuit court found extensive prosecutor misconduct on the part of Assistant U.S. Attorney Earl Hicks, who works for the Office of U.S. Attorney for the Eastern District of Washington. (Kozinski’s opinion doesn’t name Hicks, nor do most press accounts of the decision, but I will. These prosecutors need to be identified by name.)

Kenneth Olsen was convicted of “developing a biological agent for use as a weapon.” While there was little question Olsen did try to produce ricin, the problem for the government was that there was little specific evidence that Olsen intended to kill someone with it. He attributed his chemistry to morbid curiosity. The strongest evidence from the government was a bottle of allergy pills found in Olsen’s lab that, according to forensic specialists, contained traces of ricin. This would seem to indicate that Olsen was preparing to use the ricin to poison people.

But at the time of the trial, one forensic who handled the pills, Arnold Melnikoff, was under investigation for forensic misconduct. His testimony had already led to three wrongful convictions. A broad and damning internal investigation of his work looked at 100 randomly-chosen cases and found improprieties in 14 of them, including contaminants in his tests; “mistakes in case documentation, administrative documentation, evidence analysis, data interpretation, and written reports”; and “a tendency for conclusions to become stronger as the case developed, from notes to written reports to testimony.”

AUSA Hicks knew about the investigation of Melnikoff, and its sweeping scope. But not only did he fail to disclose this to Olsen’s attorneys, he allowed Melnikoff’s attorney to characterize is at as an “administrative” review that was limited to one case from 10 years ago.

Now here’s the bad part. Two of the three judges in the case decided that even though the prosecutor engaged in misconduct, it didn’t really matter because the jury likely would have convicted him anyway. Kozinski wrote a blistering dissent:

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…

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.

Amen, brother. The courts constantly look the other way when prosecutors violate the constitutional rights of defendants, giving them absolute immunity. And that’s why this goes on so often.

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  • steve84

    Land of the free!

  • http://motherwell.livejournal.com/ Raging Bee

    Apologies for the OT comment, but can anyone tell me why a) the HetPat link isn’t on the FTB blogroll, and b) the blogroll only shows 22 FTBs now, where it used to show more than 30? Is that a technical glitch, or did FTB lose more than ten bloggers while I was asleep?

  • colnago80

    Re Raging Bee @ #2

    In particular, Mano Singham’s blog doesn’t show on the FTB blog roll and his blog didn’t work properly this morning.

  • mobius

    For judges to base their finding on what they feel a jury was “likely to do” is just wrong. In a case like this, I feel the court should have spanked (metaphorically) the prosecutor and ordered a retrial so that we could see what a real jury would really do.

  • mobius


    Re Raging Bee @ #2

    In particular, Mano Singham’s blog doesn’t show on the FTB blog roll and his blog didn’t work properly this morning.

    I too follow Mano’s blog. What I saw was that his banner was changed. His blog was still there. I did not look at the sidebar were blogs were listed, however. Things do seem to have returned to normal.

  • Chiroptera

    Actually, Mano’s blog is missing on the side bar right now as I type this (1:25 pm Central). There is a blank space where the link is supposed to be.

  • colnago80

    Although I was able a few minutes ago to access Prof. Singham’s blog and a thread therein, I was unable to post a comment.

  • D. C. Sessions

    I feel the court should have spanked (metaphorically) the prosecutor

    Nice Firesign Theater reference.

  • D. C. Sessions

    Oops. Cheech and Chong.

  • Trickster Goddess

    Other odd stuff: yesterday it kept sending me the mobile version of Phyrangula on my desktop. Other FTBs were normal except when I reloaded Dispatches it switched me to mobile.

  • Pteryxx

    Balko’s massive August post should be required reading on the level of The New Jim Crow.

    The Untouchables: America’s Misbehaving Prosecutors, And The System That Protects Them

    Just a few samples:

    Emily Maw, director of the New Orleans Innocence Project, a group that advocates for the wrongfully convicted, says violations in low-level cases are much less likely to come to light. “It’s expensive to discover a Brady violation. They’re usually found after conviction, with the help of investigators and attorneys poring through police reports and prosecutors’ files.”

    In fact, because Brady violations are suppressions of evidence, they’re only likely to come to light once a defendant is given full access to the state’s complete case file. In Louisiana, that only happens after conviction. Moreover, the only defendants who have the right to a state-provided attorney after conviction are those who are facing the death penalty. Indigent defendants sentenced to life or less must find pro bono help, or they’re on their own.

    This means that the only convictions systematically vetted for Brady violations in Louisiana are death penalty cases. And here, the numbers are quite a bit more alarming. Between 1973 and 2002, Orleans Parish prosecutors sent 36 people to death row. Nine of those convictions were later overturned due to Brady violations. Four of those later resulted in exonerations. In other words, 11 percent of the men Connick’s office attempted to send to their deaths — for which prosecutors suppressed exculpatory evidence in the process — were later found to be factually innocent.

    In fact, this kind of charge stacking is quite common, and considered a negotiating tactic in the plea bargain process. “It’s ingrained in plea bargaining,” Silverglate says. “It allows prosecutors to effectively punish defendants for insisting on their right to a jury trial.” […]

    But it isn’t just that charge stacking itself isn’t considered unethical, it’s that piling on charges is a tactic often used to encourage plea bargaining. And plea bargaining also tends to whitewash prosecutorial misconduct. Over 90 percent of criminal cases are resolved with plea bargains (PDF) before they ever get to trial. The defendants who accept these agreements are less likely to appeal, so the vast majority of criminal cases are never screened for prosecutorial misconduct.

    After a forum on wrongful convictions last year at Tulane University, Plattsmier asked the Innocence Project of New Orleans for a list of cases in which an innocent person had been convicted due to prosecutor misconduct. “I checked the list to see how many of the prosecutors had been reported to our office. Even I was surprised when we found that none of them had. No one had filed a complaint.”

    Though defense attorneys may seem most likely to file those complaints, few of them do — and there are some good reasons why not. For one, ethics complaints usually aren’t considered until criminal and civil trials are settled. That way, if a state supreme court makes a finding of ethical misconduct, it will have no impact on a client’s criminal appeal or his lawsuit. More important, Plattsmier says, defense attorneys are reluctant to file complaints because of the damage a complaint could do to the working relationships they have with prosecutors. A complaint could make an aggrieved prosecutor and his colleagues less likely to cut deals or to ask judges for leniency for an attorney’s other clients.