Prosecutor misconduct and the most interesting man in the world

Photo credit: Kevin Bondelli pursuant to Creative Commons license.

Photo credit: Kevin Bondelli pursuant to Creative Commons license.

My jury returned a verdict in Sioux City, and I am back in Lincoln. While trying to catch up, I saw an article highlighted by How Appealing, my primary source for everything. The piece, written by Radley Balko in the Agitator Blog, begins with a quote from the most interesting man in the world, Chief Judge Alex Kozinski of the Ninth Circuit.

The judge writes: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” United States v. Olsen, Nos. 10-36063-36064 (9th Cir., December 10, 2013) (dissent). Is the most interesting man in the world merely trying to be interesting or is HE right?


19 responses

  1. Judge Kopf – I don’t know if there is an epidemic of Brady violations, but it is something that is ever present in cases. It is not enough for the judge, federal or state, to say the prosecutors are aware of their obligations. Quite frankly, most federal agents, and virtually no state law enforcement, have any idea what Brady requires. So, in my view, defense counsel have to be vigilant in pushing the issue and the trial judge has to take the obligation seriously to hold prosecutors and agents accountable for their failure to comply with the dictates of Brady. Otherwise, on too many occasions, trial is a game to be won at all costs.

  2. More often than not, the onus is on the judges to hold the prosecutors’ feet to the fire—especially in a system with overworked public defenders with very limited resources against an all-powerful state.

  3. “defense counsel have to be vigilant…”

    As Donald Rumsfeld said, there are known unknowns and unknown unknowns. It’s impossible for defense counsel to be vigilant for unknown unknowns, just as it’s hard to imagine that a witness recanting an identification isn’t understood to be Brady by an AUSA.

    Judge Kozinski’s notes that it’s the judiciary’s fault that there is every incentive to conceal and no incentive to disclose because the worst penalty to be imposed for concealment of Brady is a do-over, leaving the government no worse than had it been concealed in the first place. On the other hand, chances of the defense learning of concealed Brady are slim, so the probability is overwhelming that the government will get away with it.

    When an AUSA with integrity reveals Brady, and there are such AUSA’s and they do, it’s a wonderful thing. But we only learn about the AUSA who conceals by accident afterward, which leads us to ponder about the Brady no one ever learns about.

    Defense counsel have to be vigilant. AUSA’s have to show integrity. Judges have to show the fortitude to impose sanctions sufficient to make concealment (in the rare instance that it’s discovered) far worse than disclosure. Of the three, the side that has the least knowledge, control and ability to address Brady is the defense. Put the burden where it belongs.

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  5. I’ve seen a few (read: two or three) of these types of cases, and in my experience, the failure to disclose has not been intentional. Generally it is the result of a lack of communication between two departments, either because of incompetence or small-minded pettiness. At least in my experience, the state is NOT “all-powerful,” it is a collection of motley agencies who try to do individual jobs and, sometimes, communicate with each other.

  6. We’ve all had that experience, Judge K. AUSAs routinely lie to win, because all they really care about is their stats. And as SCOTUS explained, it is abhorrent when they do:

    The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor– indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

    Berger v. United States, 295 U.S. 78, 88 (1935).

    Judicial and prosecutorial misconduct are symptoms of a larger disease: a lack of accountability. As Jefferson put it, “In truth, man is not made to be trusted for life if secured against all liability to account.” [Letter, to A. Coray] When the players have some skin in the game, they will be more circumspect.

  7. This comes back to my hobby horse: power minus accountability equals tyranny. Authority intoxicates, and a lack of accountability is like a half-pint of whiskey. Liquid courage, or so to speak.

    If a judge knew s/he could be removed from the bench or a prosecutor, removed from the Bar for misconduct, you would see massively improved performance from both quarters.

  8. It is hard for me to say because of my limited experience, but prosecutors have routinely declined to provide me with evidence that I believe has exculpatory and/or impeachment value. I had one case that went on for two years (client had surgery at one point and waived speedy trial), and three days before trial, the prosecutor disclosed an interview with the complaining witness in which he pretty much recanted completely.

    There is zero incentive for prosecutors to comply with Brady, because judges (at least where I’m at) will do everything within their power to ‘save’ convictions (declining to give sanctions, putting words in the DA’s mouth when he/she is floundering, narrowly interpreting Rule 16 so that P isn’t required to discover a 911 call made to the local police, etc.). Moreover, there is a massive incentive NOT to disclose Brady material because (at least where I’m at), the prosecutors are retained/promoted based on their conviction rate. Judges are the only people who can stop Brady violations—but they don’t really seem to care since they presume everyone is guilty.

    This is opinion based on my personal experience, and is not intended to be a criticism of all judges or prosecutors (although, personally, the onus is on the judge/prosecutor to demonstrate to me that constitutional obligations are taken seriously).

  9. The war stories are always instructive. Everyone who has had to deal with our court system at length has at least one:

    We recently defended a minor accused of 4 felonies, including child pornography & sexual assault. As the case progressed, the detective’s original assumptions started falling by the wayside. Towards the end of the case, she stopped writing reports, identifying witnesses, and turning over evidence she’d gathered that ended up not supporting her prior conclusions.

    When we spoke with the DA about this, the DA claimed she’d turned over everything she had to us. We know her well, she’s a straight shooter. When we pointed out things we’d learned, from my investigation she was appalled. She kept demanding the Det produce items we’d identified. Less than 5 days before trial, which was our third trial date, we started getting supplemental reports from work done over 5 months earlier. Had we not conducted our own exhaustive 200 plus hour investigation this exculpatory evidence would never have been identified and turned over. But once we listed 30 witnesses the DA’s office was unaware of, the Det. had no option but to turn that info over.

    Based on those reports, the case against our client was dropped as to the original alleged victim, and our client agreed to plead to a misdemeanor charge, viewing child pornograpy, it was a selfie of his 16 year old girlfriend sent to him, not of the original victim identified by the Det.

    Too few defendants have the ability to have such an exhaustive investigation conducted on their behalf, or a DA honest enough to follow up. [Tom Payned]

    The system melts down at every level because the agents of the State are not accountable for what they do. is a classic example hitting close to home. From the highest and mightiest judge to the lowest gumshoe.

  10. I had the pleasure of spending an evening with Judge Kozinski several years ago at a conference. Believe it or not, he’s funnier in person than he is in print. And, he’s very wise in both places.
    In Texas, the Legislature just passed a major disclosure obligation for prosecutors in the wake of two major Brady violations. The bill is known as the Michael Morton Act because Morton spent 25 years in prison for killing his wife after the State withheld evidence another person committed the crime, then spent years trying to prevent DNA testing of evidence which later led to the identification of the true killer. Due to the State’s violation of Brady, not only did Morton spend a quarter century in prison for a crime he did not commit but another woman was murdered by the man. The then-district attorney resigned as a district judge shortly before he was to be removed from office and surrendered his law license as part of a plea deal for contempt of the original Brady order. The Texas Supreme Court also has lengthened the discipline statute of limitations so Brady-hiding prosecutors can be disciplined when their wrong doing is found years later.
    Yet, right now, I have a pending case family violence case in which the complainant has given the district attorney’s office several sworn statements that the crime never happened. The State is hiding them in a file marked “work product” to which defense lawyers do not have access. I got a glimpse of it when the prosecutor pulled them out during a pretrial bench conference this week.
    The judge has entered a Brady order with a compliance date and if the prosecutor does not comply, I intend to get a statement from the complainant that she gave those statements to the district attorney’s office. That will be followed by a motion to dismiss for prosecutorial misconduct and possibly grievances against the offending prosecutor and her superiors up the chain of command to the elected DA.
    Another lawyer I know is having the same experience with the same division of the district attorney’s office.
    How can prosecutors be so dumb. Or is it just that they think they can continue to hide exculpatory evidence and nothing will ever happen.
    It’s time courts took action against prosecutors who deliberately hide exculpatory evidence. And, a handslap followed by a new trial isn’t sufficient. Prosecutor’s who fail to disclose clear Brady material should be playing “You Bet Your License.” When a couple are disbarred for Brady violations, the word just might get out.

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  13. I think there’s more to the government’s burden than just having a “do-over.” Firstly, trials cost money. Some trials cost more than others. No one likes re-doing a separate trial. Secondly, as anyone who’s had the misfortune to do a retrial knows, you have all these sorts of credibility issue to deal with, especially if a lot of time has past, because you have a boatload of Jencks in the form of your 1st trial transcript. It can be bad enough at a first trial with witnesses who may not remember events of a year or two ago. But by the time a retrial comes along, perhaps after a direct appeal on a Brady issue, or worse yet, collateral attack, you could have a second trial 5-10 years after the first one. No AUSA wants that.

    Also, I think part of the problem has less to do with the AUSAs and more with law enforcement. I think the 2009-present period, with its many public Brady violations, such as Sen. Ted Stevens’s case and the unfortunate passing of Nick Marsh, have made prosecutors hyper-aware of Brady. On the other hand, law enforcement agents are less aware. Even if we want to say federal LEOs are more aware, and I’m not sure that we do, plenty of cases begin with State LEOs, who varying from jurisdiction to jurisdiction, may have an even lesser understand of Brady/Giglio.

  14. “[E]pidemic”? No. Just hyperbole from Judge Kozinski. But that is not surprising.

    Do Brady violations (which, as a matter of law, encompass good faith and bad faith conduct) occur? Yes.

    Can they be completely prevented? No.

    Can they be minimized? Yes.

    Every prosecutor needs to sit down with every member of his/her “prosecution team” (as that term has been defined by the Supreme Court) before trial and make sure that he/she has possession of all the evidence in the case, inculpatory and exculpatory. Then, before trial, the prosecutor should meet with defense counsel and make sure that defense counsel is in possession of all the evidence possessed by the prosecutor. This meeting should be documented, by having defense counsel sign an acknowledgment of the “open file” discovery.

    By following this procedure — a procedure that may be quite time-consuming in some cases — the prosecutor will be fulfilling his/her legal and ethical obligation; ensuring that the trial goes smoothly; and minimizing the likelihood that a favorable verdict will be reversed (on appeal or, more likely, in a habeas proceeding) on the ground of ineffective assistance of counsel (IAC).

    By the way, does Judge Kozinski believe that there is an “epidemic” of IAC? Based upon my reading of Ninth Circuit cases (especially habeas cases), many cases (especially the penalty phase of capital cases) are “infected” by IAC, at least according to that court. What does Judge Kozinski believe is at the root of this problem? Oh, let me guess, poorly paid and overworked federal and state public defenders and lazy and indifferent private counsel?

    When it comes to Brady and IAC/Strickland claims, it is easy to have 20/20 hindsight while sitting on a big leather seat in San Francisco a decade or more after the courtroom “battle” has been fought. It is an entirely different thing for government prosecutors and public defenders (especially at the state level) to juggle dozens and dozens of cases, in overcrowded, understaffed, courtrooms — cases that were investigated by officers who are faced with ever increasing caseloads because of, among other things, “realignment” programs (such as that in California) that are releasing more and more hardened criminals back on to the streets to victimize society.

    Judge Kozinski, next time you are about to use an overly broad brush of your pen to defame the work of less “interesting” members of America’s crumbling criminal justice system, please take a moment, get out of your lavish courtroom, and walk in their shoes.

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  16. Paul,

    I agree with you that most of these Brady-type violations are not intentional but either the product of sloppy trial practice or pure sloth. That’s why I think “open-file” practices ought to become the standard because they are easy to comply with and yet get the job done.

    By the way, like academics, Circuit judges frequently ignore the realities of a busy trial practice. Your advice to Chief Judge K. to temper his criticism with a dose of “real world perspective” is a good one.

    Thanks for writing.

    All the best.


  17. Jeff,

    At the federal level, a trial judge can demand that DOJ pursue an OPR-like investigation of a federal law enforcement agent who violates the requirements of Brady. As for state law enforcement officers, perhaps federal trial judges should demand that the US Attorney personally certify that any law enforcement agent employed by the state but used by the feds was instructed by the USA’s office in detail on the requirement of Brady, et al. These are just two responses to your valid concerns, and thoughtful people could think of far better responses. As my mean-ass mother used to say, it is merely following the axiom that where there is a will there is a way. And, in that regard, I agree with Chief Judge K. that it starts with federal trial judges.

    All the best.


  18. I should perhaps edit the comment I just wrote on the other post, as I had no idea that a Judge could order an investigation into federal law enforcement.

    As to solutions, those sound like good ones. I think a US Attorney might be wary of certifying that State law enforcement agents were trained. They’d need to well … need to be actually trained! Someone’s gunna have to pay for that.

    As to a broader solution: I wonder if DOJ couldn’t condition the COPS funding ( on intensive Brady training to state LEOs.

    Thank you again for your response to my comment, and this insightful blog as a whole.

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