New York Times Joins Kozinski Chorus on Epidemic of Brady Violations
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.
1 Comment
dr d b karronLong Beach, New York 11561
FLAG
By the standard espoused in the Olsen case, if the defendant was not found to have actually produced, or had ricin in his possession, he could still be found guilty by purely circumstantial evidence. This seems to include evidence that he had an interest in the substance, wrote about it, but did not actually produce it.[on review this was not precisely true; he thinks he made it but was working from a morbid curiosity] So who could[did] he poison ? This case is almost as bad as the [chicago] politician with a big mouth who talked about crimes but was never proven to have committed any single criminal act. In law school we are taught the elements of a crime must all converge for a crime to occur. All the elements. Not one or two of the elements. Yet we write our laws without real principles and our prosecutors prosecute and convict without justice. Because they can and its their job. Overwelming circumstantial evidence should not trump hard evidence that obviates the crime no matter how pages of weak testimony. In drug cases, If a defendant does not have drugs in their system, they can not and should not be liable for criminal drug use. If the lab can’t return this matter of fact because it is tainted, corrupt, or incompetent, the defendant does not have drugs in their system. No matter how much the circumstances seem to indicate it. This failure to reveal the lab was tainted in the pivotal material evidence turns justice into a witch hunt.