WALL OF SHAME for Brady Violators
Alaska United States District Judge John W. Sedwick (pictured left) has just been added to our Judicial Wall of Shame for his failure to grant a new trial in the Operation Polar Pen Prosecutions in US v Kott and US v Kohring that were corrupted by the same prosecutors who also corrupted the prosecution of Alaska’s United States Senator Ted Stevens.
Fortunately, the Ninth Circuit panel of Judges Thomas, Tashima and Fletcher reversed Judge Sedwick’s decision in a scathing opinion. Ninth Circuit Judge Betty Fletcher was added to our Wall of Fame for her concurrence, in which she excoriated the prosecutors for their “reckless disregard” of the rights of the defendant. She would have dismissed the indictment because the prosecutors’ “unrepentant attitude indicates that no lesser remedial action will be effective.” Judge Fletcher wrote that only the extreme remedy of dismissal was sufficient to “impress upon the government the reprehensible nature of its acts and omissions.”
Judge Fletcher was right. The prosecutors and the Department of Injustice learned nothing from being caught in egregious misconduct in the Stevens case. They argued that the same misconduct in Kott and Kohring was not material, the Department opposes the Fairness in Disclosure of Evidence Act, and they now seek to impose a materiality requirement in the ethical rules governing prosecutors nationwide. If the Department of “Justice” succeeds, only the government will decide what a defendant receives according to the prosecutors’ own biases and ambitions, and there will be no meaningful review.
Judge Kozinski is right too. We are awash in Brady violations, and judges must put a stop to it. It’s way past time for judges nationwide to heed the warnings of Judge Emmet Sullivan on April 7, 2009 and the Kozinski chorus on the Ninth Circuit who recognize this serious threat to the liberty of all of us.