Judge Kozinski
Judge Kozinski

Ninth Circuit Chief Judge Alex Kozinski, joined by Judges Pregerson, Reinhardt, Thomas, and Watford dissent from the court’s denial of rehearing en banc in United States v. Olsen. The entire dissent is a must read, thoroughly researched, and a terrifying catalogue documenting what these judges recognize as an “epidemic of Brady violations” infecting our legal system.  Here’s one of my favorite quotes:

A robust and rigorously enforced Brady rule is imperative

because all 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 . . .

Here’s another one:

When a public official behaves with such casual disregard

for his constitutional obligations and the rights of the

accused, it erodes the public’s trust in our justice system, and

chips away at the foundational premises of the rule of law.

When such transgressions are acknowledged yet forgiven by

the courts, we endorse and invite their repetition.

And another, which hits the nail on the head, again laying the problem at the feet of the judges who are empowered to solve it:

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.

All who are concerned about Brady violations must read this opinion. It provides a remarkable resource of examples and authorities, along with a ray of hope that some of our federal judges are starting to catch on and are willing to address the problem.

We wonder how many more innocent people have to be convicted by corrupt or negligent prosecutors for more judges to see the light, require the prosecutors to produce documents, and reverse convictions when the prosecutors violate their constitutional obligations–not to mention lie to the court. Until far more of our judges align with Kozinski & his fellow dissenters on this issue, and hold prosecutors accountable for their blatant disregard of the law, we are all at risk and injustice flourishes. That is completely unacceptable in a free society that supposedly derives from the Rule of Law.