Kudos to the LA Times for noticing and joining the Kozinski chorus on the need for Congress, legislatures and judges to ACT to stop prosecutors from playing games that cause wrongful and unjust convictions of innocent people. That prosecutors can play games amounting to obstruction of justice, and sometimes subornation of perjury, in today’s society is inexcusable and an outrage. Yesterday’s LA Times editorial, pointing to a Kozinski dissent we have already featured, is a clear and correct call to action:

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.

Yes, prosecutors need to STOP, and it will take good judges, Congress, legislatures, and Bar Associations to make them. The Department of Justice vehemently opposes bipartisan and otherwise widely-supported legislation called the Fairness in Disclosure of Evidence Act, which has been pending in Congress for two years. DOJ’s opposition to this legislation is an oxymoron and an affront to the entire system of justice.

I can’t help but note, however, that the LA Times needs a new and better picture of Judge Kozinski.  Here you go:

The BLT: Blog of LegalTimes reported today that ethics complaints are on the rise against lawyers in D.C.

The Office of Bar Counsel is on track to receive more attorney ethics complaints in 2013 than it did in 2012, especially related to criminal cases.

According to the latest bar counsel statistics, the office received 1,090 complaints as of Nov. 13, up from 1,021 complaints received by the same time in 2012. There were a total of 1,081 complaints received by bar counsel in 2012.

Remarkably, the D.C. Bar doesn’t know the reason for the increase.

We can help them with that.

Deputy Bar Counsel Elizabeth Herman does admit that most of the increase is from criminal cases. Perhaps she and her colleagues should take seriously, actually investigate, and take action on complaints against federal prosecutors for Brady violations and other misconduct-including current White House Counsel Kathryn Ruemmler from her days on the Enron Task Force. The D.C. Bar seems to have lost the grievance filed against Ruemmler somewhere in its political airspace.

If the Bar disciplined prosecutors for Brady violations, it would help put a stop to many injustices while better serving the Bar, the courts, and the public.

Stay tuned to this blog for more information on this topic.

 For different reasons, but like  Michael Morton in Texas, a California man spent 11 years in prison for a murder he did not commit.  Finally, DeAndre Howard is a free man.  As the Los Angeles Times reports:

Not only had Howard always maintained his innocence, but in 2004, one of the attempted murder victims wrote  a declaration that “the truth remains that DeAndre Howard never attempted to murder me. Neither did he murder victim Mark Anthony Freeman.” Howard’s defense attorney at the time of trial did not even interview the victim, Ragland, before the trial. 

From behind bars, Howard fought for his innocence. He began filing a flurry of appeals, which hinged on his belief that his trial lawyer hadn’t properly defended him. His main point of concern was that his lawyer had never interviewed Ragland despite Howard’s entreaties to do so. Howard said his position was bolstered in 2004 when Ragland sent a letter to Howard’s appellate attorney saying that Howard wasn’t the gunman.

The California state courts had summarily rejected his claims-obviously giving no thought to the facts or issues, and the federal district court denied his habeas petition.

It took the Ninth Circuit Court of Appeals to grant Howard habeas relief on his claim of ineffective assistance of counsel for his trial attorney’s failure to interview Ragland-the survivor of the shooting in a case where eyewitness testimony was shakey at best. In an opinion authored by Nancy Gertner, District Judge sitting by designation, and joined by Chief Judge Alex Kozinski who often speaks out against government misconduct and in protection of individual rights, and Circuit Judge Dorothy Nelson, reversed the district court’s denial of Howard’s habeas petition and remanded the case for a hearing.

Then, as The Los Angeles Times reports:

After years of fighting for his innocence from behind bars, a federal judge had finally granted him an appeal. Prosecutors, he said, gave him a choice.

He could plead guilty to involuntary manslaughter and get out in time for a Thanksgiving dinner with his family. Or he could go back to trial and risk spending the rest of his life in prison.

He chose trial. That felt final. It felt right.

“There was no need to compromise your integrity just so you can go free,” he said. “I felt that’s something you have to hold firm to even if your life is on the line.”

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.