In an exhaustive indictment of government discovery and Brady/Giglio gamesmanship, the District of Columbia Court of Appeals, Judge Catherine Friend Easterly [great judicial name], recently ordered a new trial for DC Inmate Carl Morton in United States v. Vaughn et al. Morton and co-defendant Alonzo Vaughn were convicted for (1) aggravated assault and (2) assault on a law enforcement officer in connection with an incident at the D.C. Jail in which a group of men attacked a fellow inmate and a corrections officer who came to that inmate’s aid. Unbeknownst to either defendant, the government’s, Assistant United States Attorneys Mary Chris Dobbie and Reagan Taylor, primary and strongest identifying witness, presented to the jury as “Officer” Angelo Childs, had recently been adjudged to have made demonstrably false allegations regarding an earlier inmate assault. “Officer” Childs was subsequently demoted from Lieutenant to Sergeant as a result of that false testimony.

In a Department of Corrections Office of Internal Affairs (OIA) “Final Report,” Childs and other officers were shown to have falsely reported a separate incident regarding alleged inmate assault.  In the relevant portion of this report — which the government suppressed — the investigator concluded that Childs’ report was, in fact,  contradicted by video footage taken of the scene. Instead of turning the entirety of the report over to defendants, or to the court, the government prosecutors strategically excised the damning portions and submitted only the innocuous and inconclusive portions (sound familiar):

the government submitted to the trial court ex parte what it said was the OIA Final Report, but in fact was only the first five pages of the ten-page report (and included none of the documents in the appendix, 76 pages in all). The first five pages of the OIA Final Report contain “background” information, investigative notes, and a full reproduction of Officer Childs‟s account of an inmate assault in his Incident Report without any indication that that account was being questioned; the findings adverse to Officer Childs begin on the sixth page.

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Sidney Powell’s Licensed to Lie: Exposing Corruption in the Department of Justice is a disturbing, enlightening, and superbly presented exploration of one of the most dramatic and chilling accounts of injustice in American judicial history. Written with the skill of a novelist, the keen eye of a memoirist, and the passion of an early American pamphleteer, Powell takes us on a journey through an institutional landscape created to protect the innocent and punish the guilty transformed into a house of “legal” horrors, the framing of an innocent man, the concealing and altering of evidence, the ignoring of the law, the flouting of political power, the constant display of an ego-driven desire to win at all costs, even if the result is the devastation of a  good a family who must have felt stunned by the despotic evilness of a government suddenly and completely in charge of their lives.

As dark and disheartening as it is, there is a lesson here that should be taught in every civics class—the greatest human ideal of Justice is only as good as the character of those who administer it, existing only if its guardians are devotees to integrity and fairness.

And yet in all this frustration and anger, there manages to remain a ray of hope. For ultimately this book becomes the unintentional profile of a  courageous and strong woman determined to fight through the corruption, cronyism, vindictiveness,  amoral egos, and repeated miscarriages of justice in order to free the light of truth from the dark place in which it had been deliberately hidden Click here to read more »

Licensed to Lie is a compelling read and frankly, quite alarming.

It exposes why many Americans fear their own government.

It is a breathtaking read that examines the impact on the lives of innocent individuals when the United States Department of Justice pursues wrongful prosecutions.

Sidney Powell goes behind the scenes and reveals a story that will hopefully will inspire readers to insist upon on a judicial system that is fair and protective of all citizens.

-Mike Moses, Dallas, Texas

Autographed copies of Licensed to Lie may be pre-ordered only from the publisher through PayPal at www.LicensedtoLie.com.  The book is also available for pre-order through Amazon, Barnes & Noble, BooksAMillion, and Indiebound, and the author will appear in at least 10 cities for book signing events.  Watch for an event near you on the Event list on the Licensed To Lie website.

The book is now available for pre-order from BooksAMillion, Barnes & Noble, Indiebound, and Amazon!

Please note, however, that only books ordered through PayPal on the website www.LicensedToLie.com will be autographed by the author.  Watch for book signing events on our Facebook page and on the Licensed To Lie website!

The book includes a special Foreword by Ninth Circuit Chief Judge Alex Kozinski, in his personal capacity.

A tragic suicide, a likely murder, wrongful imprisonment, and gripping courtroom scenes draw readers into this compelling story giving them a frightening perspective on justice corrupted and who should be accountable when evidence is withheld. Licensed to Lie: Exposing Corruption in the Department of Justice is the true story of the strong-arm, illegal, and unethical tactics used by headline-grabbing federal prosecutors in their narcissistic pursuit of power. Its scope reaches from the US Department of Justice to the US Senate, the FBI, and the White House. This true story is a scathing attack on corrupt prosecutors, the judges who turned a blind eye to these injustices, and the president who has promoted them to powerful political positions

A gruesome suicide, a likely murder, a tragic and needless plane crash, wrongful imprisonment, and gripping courtroom scenes draw readers into this compelling story, giving them a frightening perspective on justice corrupted and who should be accountable when evidence is withheld.

Licensed to Lie: Exposing Corruption in the Department of Justice is the true story of the strong-arm, illegal, and unethical tactics used by headline-grabbing federal prosecutors in their narcissistic pursuit of power. Its scope reaches from the US Department of Justice to the US Senate, the FBI, and the White House. This true story is a scathing attack on corrupt prosecutors, the judges who turned a blind eye to these injustices, and the president who has promoted them to powerful political positions.

In a compelling Foreword written by Ninth Circuit Chief Judge Alex Kozinski in his personal capacity, he notes the importance of this issue, and as did the Washington Post recently, urges a national discussion of the issue.

The book will be out soon.  You may pre-order at www.LicensedToLie.com. Pre-orders will be autographed by the author and a portion of the proceeds will benefit the Constitution Project, NACDL, The Texas Equal Access to Justice Campaign, and Pisgah Legal Services.

Click here for a digest of federal cases from the past 15 or so years in which the courts have reversed or dismissed cases for prosecutorial misconduct and/or Brady violations.  Mr. Lewis has also included in the digest a number of additional federal cases in which courts recognized that dismissal in an appropriate remedy for egregious prosecutorial misconduct.

One of our favorites remains Kohring, in which Ninth Circuit Judges Thomas and Tashima reversed a conviction for Brady violations and rejected and reversed District Judge John Sedwick’s determination that the evidence was not “material” to the defense.  Judge Betty Fletcher wrote separately because the prosecution’s “egregious violations of [its] basic responsibilities”  and “unrepentant attitude indicates that no lesser remedial action would be effective.”

There is also a significant collection of Brady cases in Ninth Circuit Chief Judge Kozinski’s potent dissent from the denial of rehearing in Olsen, about which we have blogged here, here and here as the Los Angeles Times, The New York Times, and the Washington Post picked it up.

Entitled RAMPANT PROSECUTORIAL MISCONDUCT, the New York Times Editorial today joins the Los Angeles Times and cites Ninth Circuit Chief Judge Alex Kozinski’s recent dissent from the denial of rehearing en banc in the Olsen case, where many judges (but not enough) saw a significant violation of the defendant’s constitutional rights when the prosecutor failed to provide evidence that would have seriously impeached a crucial witness. Kudos to the Times for recognizing the problem and speaking out.

Brady violations undermine our system of justice and jeopardize the freedom of each of us. A prosecutor’s job is to seek justice-not obtain convictions, but far too many have lost their moral compass. One need only look at the legacy of injustice of the Enron Task Force prosecutors and the prosecutors of Ted Stevens and others in Alaska to see the ravages of the win-at-any-cost mentality that has infected our Department of INjustice-especially in high profile prosecutions.

The comments to the NYT Editorial so far are particularly telling. Yes, there are ethical rules that are supposed to apply to prosecutors, but the various bar associations are not enforcing them. To make matters worse, the Department of INjustice demands the right to filter all production of evidence favorable to the defense through the prosecutor’s lens of materiality and are advocating for the imposition of a materiality requirement in the bar rules nationwide. That means the prosecutor really doesn’t have to produce anything, and unless a defendant is lucky enough to have a judge like Emmet Sullivan or a handful of other district judges who compel the government to produce everything, the prosecutors are licensed to lie and convict on whatever their own view of their case is. The truth can be suppressed for years-if not forever-while innocent people languish in prison or are executed on death row.

On top of that, our Department of INjustice also opposes legislation proposed in a bi-partisan effort two years ago that would codify the rule of Brady and give it some teeth. Called the Fairness in Disclosure of Evidence Act, the legislation received wide support from almost every legal organization but one-the Department. That is sad and unacceptable. We’ve got to do better. Wrongful convictions destroy countless lives. There is no reason that an open file policy could not be standard operating procedure except in cases of national security or clear danger to witnesses. Those situations are comparatively rare. And the Fairness in Disclosure of Evidence Act should be enacted immediately.

In our effort to make this blog a valuable resource for practitioners and others in search of cases and materials on Brady violations and prosecutorial misconduct, Torrence Lewis has prepared a DIGEST OF SUPREME COURT BRADY AND MISCONDUCT CASES  decisions that we hope you will find helpful.

As with any resource we provide, we are not giving anyone legal advice, creating an attorney-client relationship, or engaging in legal representation. You should always consult your own attorney.

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.

Another panel of the United States Court of Appeals for the Ninth Circuit hits a home run for the Constitution!  After failures of every prior state and federal judge to act in the face of clear evidence, the Ninth Circuit has reversed a denial of a writ of habeas corpus and required release - or a new trial - for a criminal defendant because of a prosecutor’s Brady violation.

Authored by Circuit Judge William Fletcher for the panel including Circuit Judge Harry Pregerson and District Judge Mark Bennett (all pictured), the panel held (emphasis added) :

Gilbert Aguilar was convicted of first-degree murder after a jury trial in Los Angeles County Superior Court.  A young Hispanic man got out of a white Volkswagen Beetle and shot John Guerrero while Guerrero’s car was stopped at a stoplight. The only question at trial was the identity of the shooter. Aguilar’s defense was that another young Hispanic man, Richard Osuna, had shot Guerrero.

The prosecution introduced evidence that a police dog named Reilly had alerted to a “scent pad,” showing that Aguilar’s scent was present on the

front passenger seat of the white Volkswagen.

 The prosecution did not disclose to the defense that Reilly had a history of making  mistaken scent identifications, 

 even though it had stipulated to Reilly’s mistaken identifications in a different trial several months earlier.

    Following the stipulation, that court had excluded evidence of Reilly’s scent identification from the earlier trial.

     Reilly’s scent identification was the only evidence that tied Aguilar to the white Volkswagen.

Putting the scent identification to one side, the evidence against Aguilar was weak. No clear motive for Aguilar to shoot Guerrero was ever suggested at trial. No physical evidence tied Aguilar to the crime. The faces of Aguilar and Osuna are very similar, but Aguilar is older and, at the time of the shooting, was significantly taller. A number of eyewitnesses identified Aguilar as the shooter at trial. Several of those witnesses had earlier given a quite different physical description to police – one that matched Osuna in age and height rather than Aguilar.

The evidence suggesting that Osuna was the killer was substantial. Osuna’s brother was shot several days before Guerrero was shot. Two witnesses testified that Osuna jumped into a white Volkswagen Beetle to pursue Guerrero’s car as it drove past.  One of them testified that Osuna did so in the belief that the “fools” in the car had shot his brother. That same witness testified that Osuna told her a short time later that he had shot a “fool.” Even so, Osuna was never investigated as a suspect in this case. Indeed, the prosecutor in this case expressly told the police not to pursue an investigation of Osuna.cantly taller. A number of eyewitnesses identified Aguilar as the shooter at trial. Several of those witnesses had earlier given a quite different physical description to police – one that matched Osuna in age and height rather than Aguilar.

Read on in the full decision and it only gets worse. Click here to read more »