There Is An Epidemic Of
Brady Violations

Former chief judge of the Ninth Circuit Court of Appeals, Alex Kozinski, ruffled feathers following his dissentingopinion where the court declined to rehear a controversial decision in United States v. Olsen, 737 F.3d 625 (9thCir. 2013). The decision involved misconduct by AUSA Earl Hicks, at the time a prosecutor in the Eastern District of Washington, who was heavily criticized and named in the Ninth Circuit’s decision that upheld Olsen’s conviction after raising a Brady violation within the context of his habeas petition brought under 28 U.S.C. § 2255. Judge Kozinski stated in his dissenting opinion that “[t]here is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” We wholeheartedly agree with Judge Kozinski’s appraisal of the frequency of Brady violations, the taint to a fair trial resulting from Brady violations, and that the judiciary is the most appropriate institution to police and remedy this type of AUSA misconduct.In the Olsen case, one of the government’s forensic analysts who assisted in determining whether Olsen hadtried to develop a biological agent for use as a weapon, was under investigation for forensic misconduct. The analyst’s testimony had previously led to three other wrongful convictions and an investigation of the analyst’s practices revealed improprieties in 14 other analysis as well. AUSA Hicks knew about the investigation and failed to disclose it to Olsen’s lawyers, a classic violation of the Brady Doctrine. As in many prosecutions where it becomes evident that prosecutors withheld exculpatory or impeachment evidence from the defense, the Ninth Circuit affirmed the conviction finding that Olsen would likely still have been convicted even if the forensic misconduct would have been disclosed. In other words, under the Brady Doctrine, the withheld evidence was not “material.”Judge Kozinski’s dissent reveals his concerns that “[the decision] will send a clear signal to AUSA’s that, whena case is close, its best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way…“Apparently, that is what happened to Olsen. Judge Kozinski also remarked that “[p]rotecting the constitutional rights of the accused was just not very high on the AUSA’s list of priorities. Thefact that a constitutional mandate elicits less diligence from a government lawyer than one’s daily errandssignifies a systemic problem: “Some prosecutors don’t care about Brady because courts don’t make them care.” Judge Kozinski is exactly right, but what gets lost in the philosophical and legal debate is that when courts look the other way to protect reputations of prosecutors, or to make sure defendants remain convicted because the judge believes him or her to be guilty, people go to prison—some for a very long time without any effective redress from their wrongful conviction. Even worse, some of these defendants subject to discovery abuse by AUSA’s are actually innocent of the offenses for which they were charged and convicted.