Long time readers of this blog know that I often complain how courts do not seem to take the problem of prosecutorial misconduct seriously. (Go here and scroll down for all my posts on the subject of prosecutorial misconduct.) Last October, however, I posted a story (which I started with that same first sentence) about how "luckily, there is one court that is doing its part: the Court of Appeals for the Ninth Circuit." In that story, I wrote about an oral argument (the story has a video of it) and a recent opinion.
Unfortunately, the latest on the subject from that court is not so encouraging. Last month it was reported that the court voted overwhelmingly to deny a rehearing in United States v. Olsen, 704 F.3d 1172, 1177 (9th Cir. 2013), a case where the Justice Department failed to fully disclose exculpatory evidence. Chief Judge Kozinski (joined by four other judges), however, issued a dissenting opinion opposing the denial of the rehearing. He begins the opinion with a sentiment I have been repeating for as long as I have been commenting on prosecutorial misconduct: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” The dissenting Opinion is available here.
The case and the opinion by Kozinski have generated much commentary. For more information and comments go to: Jonathan Turley, Seeking Justice, The Legal Ethics Forum, Seeking Justice, again, Huffington Post, The Los Angeles Times, and The New York Times,
The underlying problems in this case, like in so many others, deal with two related issues: the extent to which a prosecutor has a duty to disclose material to the defendant and how to determine if a conviction should be reversed because of Brady violations. Typically, courts will say that, under Brady, prosecutors have a duty to disclose evidence that is favorable and material. Many jurisdictions, and the ABA, have adopted rules that impose a broader duty to disclose; others have denied that the rules impose a broader duty.
In this particular case, the Circuit Court found that the information in question was evidence favorable to the defendant and that it had not been turned over to the defendant's attorneys, but the court also determined that the evidence wasn't material. And, having decided that the evidence wasn't material, the court did not decide whether the prosecutor engaged in misconduct.
To this, Kozinski reacted as follows: "The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."
This is a very important issue and I am going to take the chance here to predict that it will one of the hottest topics in Professional Responsibility circles this coming year.