"An Epidemic of Brady Violations"

December 10, 2013

Chief Judge Kozinski of the 9th Circuit published a dissent today that castigates federal and state prosecutors across the country for failing to adhere to their professional and legal obligations. After discussing the facts of the case before the court, Kozinski writes:

I wish I could say that the prosecutor’s unprofessionalism here is the exception, that his propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors’ offices across the country. But it wouldn’t be true. Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend.“

For those unfamiliar with Brady v. Maryland, it is a U.S. Supreme Court case that imposes Constitutional obligations on prosecutors to disclose evidence in their possession to defendants when that evidence is (1) favorable to the defense, and (2) material to the guilt of the accused. Evidence is material if its disclosure would have created a "reasonable probability of a different result” at trial. When a prosecutor fails to disclose material evidence that is favorable to the defense, he violates the Due Process rights of the defendant.

So what Kozinski is saying is that there has been an epidemic of prosecutors suppressing evidence that is favorable to criminal defendants and that could change the outcome of their cases. It is rare to see a federal judge (particularly a high-profile judge like Kozinski) so openly chastize both federal and state prosecutors on a grand scale. It is unfortunate that this opinion appears as a dissent attached to an inconspicuous opinion denying a rehearing to the defendant. If more judges begin to make their voices heard on this issue, Supervising prosecutors may finally start taking their oversight responsibilities seriously. As Kozinski notes at the beginning of his opinion, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

7:25pm | URL: https://tmblr.co/ZMMjnx10sn5JI

(Notes: 16)