Monday, April 14, 2014

A rampant and epidemic lie

Hello and Happy 2014. Running for re-election (May 20 -- NO contributions, please) along with work, family, and that virus that's been going around, has diverted me from writing for the past while. I have several things to catch you up with, including a ridiculous LIE.

Around New Year's the Los Angeles Times and then the New York Times published editorials claiming prosecutorial misconduct was "epidemic" (LAT) and "rampant" (NYT).  Their sole source for the claim is the extremely quirky and uber-libertarian 9th US Circuit Court of Appeals Judge Alex Kozinski. I follow the usually anti-law-enforcement 9th Circuit closely, have had dinner with Kozinski, and am published with him in a collection of essays about capital punishment, Debating the Death Penalty (Oxford University Press, 2005).

In the Olsen case, Kozinski and a couple other 9th Circuit judges on the uber-left political fringe bitterly dissented over the 9th Circuit's majority refusal to agree with the defendant's claim that a federal prosecutor's actions during the trial amounted to "egregious misconduct" and therefore his conviction should be thrown out.

When a judge screws up, a case is merely reversed. When a defense attorney doesn't do her job, it's called ineffective assistance of counsel. And even the American Bar Association (overwhelmingly defense attorneys) has voted to start differentiating between genuine, malicious (and extremely rare) prosecutorial misconduct, and simply prosecutorial error. That's how it should be.

I drafted an Op-Ed in response to the editorials, but was delayed in submitting them and then it became too late for the papers to run it. It received a good response from my colleagues at the National District Attorneys Association. I append it just below, followed by the LA Times and NY Times editorials.

Draft Op-Ed in response to NY Times and LA Times on "rampant" and "epidemic" prosecutorial misconduct. 

The sudden clamor about "rampant prosecutorial misconduct" is the result of a minority dissent from the usually extremely pro-defendant 9th U.S. Circuit Court of Appeals in the Olsen case. Judge Alez Kozinski, the controversial uber-libertarian chief judge, drafted a minority opinion in which he was joined by former chief judge Stephen Reinhardt, generally identified with the much more defense-oriented wing. While the rarified air of the editorial board may have succumbed to Kozinski's turgid prose, a reading of the majority opinion (the one that matters) yields a very different result.

Kozinski may be something of an legal "wunderkind", being appointed to the federal bench in his early 30s. But he has never served as a trial lawyer, let alone a prosecutor. To damn the entire profession of prosecutors in America based on the tiny number reviewed by his panel of a federal appeals court would be like ascertaining judicial integrity based on the recent sentencing habits of judges in Alabama and Montana, who gave what amounted to a free pass to convicted child molesters. Fortunately, those judges are the exceptions, not the rule.

The Olsen case was conducted in federal courts, where only 5 percent of all prosecutions in America are set. The defendant claimed the prosecutor had committed a Brady violation -- where a prosecutor fails to disclose known exculpatory or helpful information to the defense. Such violations usually result in the reversal of a conviction and can have catastrophic consequences for the career of any prosecutor who commits such an act.

What at first glance may seem like a simple rule -- that prosecutors have a duty to seek justice first and only then seek convictions -- becomes much more nuanced when you look at actual Brady decisions.

For example, prosecutors are imputed with the knowledge of police officers who don't even work for them. Let's say a five-agency task force arrests a guy for drug dealing. One officer working the periphery of the case may have spoken to a woman who claimed to have information about the guy, but the officer found the woman kind of batty and ignored her, failing even to write a report. As the case lurches through the several levels of appeals, a defense investigator may uncover that what the woman would have said (if she'd been asked) would in fact have helped the defendant, if not by completely exonerating him then perhaps by reducing his role in the criminal enterprise.

Under the current interpretations of Brady, the prosecutor (particularly in a large office with hundreds of assistants) is deemed to know EVERYTHING that every other prosecutor was ever told (even going back decades to before that particular prosecutor entered law school) or, in this example, and to be responsible for the failure to follow-up by what appeared during the initial investigation to be a minor witness.

For most of us who prosecute for a career -- not as a step to six- and seven-figure incomes defending white-collar defendants -- the worst possible trial outcome is not an acquittal. Any of us worth our salt have lost cases where the defendant was clearly guilty. No, the worst nightmare of any prosecutor is convicting someone who is innocent of that offense. For that reason, many prosecutors' offices have established elaborate protocols to ensure that questionable witnesses are not relied upon and to ensure that any information, no matter how minor, calling the case into question will be disclosed.

Ninety-five percent (95%) of prosecutions are conducted by elected state and county prosecutors like myself, who in addition to being accountable to the trial and appellate courts also face review by their state Bar associations and ultimately the approval -- or wrath -- of voters. Those of us who are seen as cutting corners to win usually find ourselves unemployed, as we should.

America's prosecutors are proud of their role in a system that does everything it can to exonerate the innocent and hold the guilty accountable.

Joshua Marquis


A respected judge warns of an epidemic of violations of the so-called Brady rule, which holds that prosecutors must turn over evidence favorable to the accused.
By The Times editorial board
December 29, 2013

In 1963, the Supreme Court established a rule of evidence that is now well known to viewers of television courtroom dramas. In Brady vs. Maryland, it held that prosecutors must turn over to defense attorneys evidence favorable to the accused and "material either to guilt or punishment." But prosecutors, including in Los Angeles, have complied grudgingly with the Brady rule. Some have ignored it altogether.

Now a respected federal appeals court judge has warned of "an epidemic of Brady violations abroad in the land." Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals sounded the alarm in the case of Kenneth Olsen, a Washington state man convicted of developing a biological agent for use as a weapon. Kozinski argued that Olsen should have had his conviction thrown out.

The evidence against Olsen took two forms: voluminous records of his browsing the Internet for information about poisons (which Olsen attributed to his own curiosity about "strange and morbid things") and a bottle of allergy pills found in Olsen's possession that allegedly contained ricin.

The defense argued that a forensic scientist with the state police who analyzed the pills before they were sent to the FBI may have contaminated them. But the argument wasn't as strong as it could have been because prosecutors had failed to turn over information about an investigation of the scientist's work in other cases that found fault with his "diligence and care in the laboratory, his understanding of the scientific principles about which he testified in court, and his credibility on the witness stand."

Despite this lapse, a three-judge panel of the 9th Circuit upheld the conviction, citing "reasonable probability" that the jury would have found Olsen guilty even if it had known about the investigation. As Kozinski notes, this approach guts the Brady rule by telling prosecutors they need not turn over exculpatory evidence "so long as it's possible the defendant would've been convicted anyway."

Kozinski argues that this case is representative of an "epidemic" of Brady rule violations. He cites a string of decisions, including a 2012 case in which the Supreme Court by an 8-1 vote ordered a new trial for a convicted murderer because prosecutors had withheld crucial information.

Kozinski is right: Courts need to deal more harshly with prosecutors who don't play fair. The message, he says, should be, "Betray ... and you will lose your ill-gotten conviction." Congress and state legislatures can do their part by enacting laws such as a model statute developed by the National Assn. of Criminal Defense Lawyers that would make it harder for prosecutors to evade their Brady obligations. Prosecutors need to stop playing games with Brady.

Copyright © 2014, Los Angeles Times

The New York Times
Rampant Prosecutorial Misconduct

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.”

The defendant, Kenneth Olsen, was convicted of producing ricin, a
toxic poison, for use as a weapon. Federal prosecutors knew — but did not
tell his lawyers or the court — that an investigation of the government’s
forensic scientist, whose lab tests were critical to the case, had revealed
multiple instances of sloppy work that had led to wrongful convictions in
earlier cases. A state court found the scientist was “incompetent andcommitted gross misconduct.”

Yet the majority of the federal appeals court panel ruled that the
overall evidence of Mr. Olsen’s guilt — including websites he visited and
books he bought — was so overwhelming that the failure to disclose the
scientist’s firing would not have changed the outcome.

This is the all-too-common response by courts confronted with Brady
violations. Judge Kozinski was right to castigate the majority for letting
the prosecution refuse to turn over evidence “so long as it’s possible the
defendant would’ve been convicted anyway,” as the judge wrote. This
creates a “serious moral hazard,” he added, particularly since prosecutors
are virtually never punished for misconduct. According to the Center for
Prosecutor Integrity, multiple studies over the past 50 years show that
courts punished prosecutorial misconduct in less than 2 percent of cases
where it occurred. And that rarely amounted to more than a slap on the
wrist, such as making the prosecutor pay for the cost of the disciplinary

Brady violations are, by their nature, hard to detect, but Judge
Kozinski had no trouble coming up with more than two dozen examples
from federal and state courts just in the last few years, and those are surely
the tip of the iceberg. According to the National Registry of Exonerations,
43 percent of wrongful convictions are the result of official misconduct.

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.

A version of this editorial appears in print on January 5, 2014, on page SR10 of the New York
edition with the headline: Rampant Prosecutorial Misconduct.

© 2014 The New York Times Company