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Chief Judge Writes Scathing Dissent Warning of “Epidemic Of Brady Violations” By The Justice Department

kozinskiDeptofJusticeI have long been a fan of the opinions of Chief Judge Alex Kozinski. While we disagree on many cases, Kozinksi often defies predictions and more ideological colleagues in ruling against the government. Chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals and considered a leading libertarian, Kozinski often rules in favor of individual rights — making him a refreshing voice on the federal courts which tend not only to be highly conservative on police powers but also populated by a disproportionate number of former prosecutors. Kozinski’s dissenting opinion this week in the case of Kenneth Olsen continues that legacy and further puts the bias of the federal court in favor of prosecutors into sharp relief. Kozinski opposed the denial of an en banc rehearing with four of this colleagues in the case of Kenneth Olsen, whose trial was marked by prosecutorial abuse. Kozinski began his decision with the chilling but true observation that “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” They didn’t. 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. For those who have been objecting to the expansion and abuse of police powers, it is important to remember that these abuses only continue because federal judges turn a blind eye to them.

Kenneth Olsen was convicted of knowingly developing a biological agent for use as a weapon in violation of 18 U.S.C. § 175. Olson admitted that he produced ricin but insisted that Olsen admitted that he did it out of “an irresponsible sense of curiosity.” To show an intent to use the ricin as a weapon, the prosecutors produced a bottle of allergy pills that was sent to the Washington State Police forensic scientist Arnold Melnikoff for evaluation. Because Melnikoff did not have the equipment for such a test, he sent them to the FBI lab. However, before sending them off, Melnikoff emptied the bottle on his lab table where ricin material had been placed earlier. He then sent them to the FBI which found small traces of ricin. It was clearly an improper procedure and for many it was par for the course of Melnikoff who have been previously criticized for sloppy work. This included prior cases from his work in Montana where at least two innocent people were convicted based on his faulty analysis. An investigation and report of experts of Melnikoff expressed significant doubt regarding “Melnikoff’s diligence and care in the laboratory, his understanding of the scientific principles about which he testified in court, and his credibility on the witness stand.” The Washington State Police later terminated Melnikoff’s employment and the Washington Court of Appeals affirmed the termination based on a “finding that Melnikoff was incompetent and committed gross misconduct.” Melnikoff v. Washington State Patrol, 142 Wash. App. 1018, at *11 (Wash. Ct. App. 2008).

While the defense counsel only knew of ongoing investigations, the assistant United States Attorney knew the full story and the utter lack of credibility for the key expert in the case. Kozinski noted:

Rather than inform defense counsel and the court of these important developments, the Assistant U.S. Attorney prosecuting the case materially understated the scope, status and gravity of the investigation. He claimed that the investigation was “purely administrative” and revolved around a decades-old complaint limited to DNA testing, which wasn’t at issue in Olsen’s case. Melnikoff’s lawyer, Rocco Treppiedi, made an appearance and represented that the WSP was “in the process of investigating” the matter and that, as of that time, there was “absolutely no evidence, no allegation that Mr. Melnikoff has ever done anything inappropriate with respect to anything other than his opinion testimony on the hair sampling.” The Assistant U.S. Attorney added that the WSP investigation was ongoing and represented that “[t]here is nothing further that you should know about.”

Notably, following a common practice, the court omits the prosecutor’s name. This has long been criticized as an aspect of the problem of shielding federal prosecutors from accountability for unethical acts. It also denies an easy record for defendants and defense counsel to confirm the record of prosecutors who are suspected for wrongdoing. However, recently the Ninth Circuit refused a demand from the Justice Department to remove the name of such a prosecutor. The Justice Department fights hard to keep the names out of such opinions and stories, as they did in the abusive Swartz case.

The prosecutor named in media reports at the time was Assistant U.S. Attorney Stephanie Whitaker, but there is no mention of the name of the prosecutor who is accused in the Olsen case.

The Justice Department has a long and troubling record of prosecutorial abuse and particularly Brady violations (here and here and here). This problem persists because of the Department’s culture and tolerance for such abuses. The Office of Professional Responsibility (OPR) has been the subject of long-standing complaints for its failure to act on allegations. I have personally had occasion to bring a couple complaints to the Justice Department of extremely serious misconduct by prosecutors and saw no action taken by OPR.

Kozinski’s opinion is much appreciated given this record but it clearly fell on deaf ears with his colleagues. Kozinski clearly tries to shame his colleagues into acting to guarantee fair trials and professional standards. He notes “[b]y turning a blind eye to this grave transgression, the panel has shirked its own duty and compounded the violence done to the Constitution by the Assistant U.S. Attorney.”  However, the result is, to put it simply, shameless.

Here is the opinion: usca9-brady

76 thoughts on “Chief Judge Writes Scathing Dissent Warning of “Epidemic Of Brady Violations” By The Justice Department”

  1. Skipples,

    Yeah. Wanting the rule of law and equal protection for everyone is exactly a fascist policy. In “I Don’t Know What Fascism Really Is” Land.

  2. Skip,

    I think a dictionary would not only help with your spelling, but would also improve your understanding of English words. Not really, but I try to be optimistic.

    Do this. Leave my reply showing on your screen for family members to see. With Christmas coming, it’ll make a great gift idea.

    SKIP NEEDS A DICTIONARY VERY, VERY BADLY.

    BTW, are you sure Gene’s positions aren’t indicative of his assumptions?

    What assumptions of Gene’s are you referring to?

    What do think his positions are? Other than you don’t know wtf you’re talking about. I think we all assume that.

  3. You guys are overlooking the tremendous entertainment value that an “epidemic of Brady violations” would entail.

    Imagine if there was a comparable law in force in Britain back in the 1970’s, you would have no movie about the Guildford Four, starring Daniel Day-Lewis.

    And, wouldn’t that be a shame.

  4. Gene H. “However, the story does highlight the need to 1) fire everyone at the OPR, 2) appoint an independent head to the OPR and make them responsible to someone other than the Deputy AG or the AG outside the DOJ and preferably outside the Executive given the perpetual politization of the DOJ by the Office of the President (analogous to an independent IG in other agencies) and 3) Congress should mandate that OPR agendas and minutes be published as public record and require that filings use attorney names.”

    Yea that going to happen!!!!! According the fascists policies of the great Gene H. You should be elected the great benevolent dictator and the world would be wonderful.

    “politization” – nice word.

  5. The Huffington Post (I know, I know) identifies the prosecutor accused of misconduct on the Olsen case as Assistant U.S. Attorney Earl Hicks, who works for the Office of U.S. Attorney for the Eastern District of Washington.

    1. Genie and RTC. You cannot recognize sarcasm? I was agreeing with the Judge to a degree, but it is not because Judges have forgotten their role in society. It is not hard to find many Judges with fascist mentalities. Are they just idiots that forgot, or are they fascists, like you guys, that think the sheeple should only have those rights you “The Almighty Genies”, wish to extend to them?

      Fascism is also an ideological mindset as well. Think of how screwed up the followers of Hitler’s and Mussolini’s minds were. Those that want to force their statist views on others and are willing to do most anything to do it. Look in the mirror dogs. It’s like religious zealots willing to burn others at the stake or hang them, because they will not repent their infidelity and change their evil ways. Instead you guys want to steal people’s property and/or put them in jail, if they disagree and resist.

      Many prosecutors are willing to lie, cheat and steal to get to the top of the dung heap and many Judges protect them along the way. More government will obviously solve the problem!!!!!

      You and others want to enforce your socialistic/fascist/communist or what ever statist BS views you can moronically justify on others and you don’t care which unalienable rights you have to take away to accomplish your fantasy world.

      One the Rule of Law, the following was written by John Hasnas, J.D., Ph.D., Philosophy, Duke University, LL.M., Temple University. Assistant Professor of Business Ethics, Georgetown University and Senior Research Fellow, Kennedy Institute of Ethics.

      http://rsjexperiment.wordpress.com/2011/12/29/the-myth-of-the-rule-of-law/#more-316

      Please read it guys.

  6. Thanks for illustrating that you don’t understand the difference between the rule of law and a form of government, Skipple. Justice Holmes is talking about the former.

    However, the story does highlight the need to 1) fire everyone at the OPR, 2) appoint an independent head to the OPR and make them responsible to someone other than the Deputy AG or the AG outside the DOJ and preferably outside the Executive given the perpetual politization of the DOJ by the Office of the President (analogous to an independent IG in other agencies) and 3) Congress should mandate that OPR agendas and minutes be published as public record and require that filings use attorney names.

    And good on Judge Kozinski.

  7. Most judges have forgotten that they are there to make sure the law is followed by the police and prosecutors to make sure that a fair trial is had by the defendant. Unfortunately for all of us prosecutors seem to have no ethics and the Bar and courts do nothing to change a culture that awards prosecutorial misconduct.

  8. The Link setforth above six comments from the top by AnonymouslyPosted, has the opinion. Please read it folks. Kozinski is a real person in a robe.
    He states it like this at the opening sentence:

    There is an epidemic of Brady violations abroad in the
    land. Only judges can put a stop to it.
    I

    1. Justice Holmes, Yea the forgot. Fascism is the idea of forcing ones rules on others, thus usurping their unalienable rights by force, when they disagree.

  9. Laboratories must be 100% independent of the entities collecting the “evidence” and should have no foreknowledge in regard to the material to be examined.

    It sure would be nice if judges would hold prosecutors accountable for their blatant nonfeasance.

  10. I think I was guilty of growing a ricin plant. The castor oil plant has attractive foliage, the seeds were readily available. I knew it, as well as other popular plants, was not edible. I didn’t know it was against the law to grow it.

    1. bettykath, Anything that is a competitor to the means of production of the ruling oligarchy is against the law. Go figure.

      Most people don’t understand that this is what regulation is really about. Protecting their special interest. The bankers have billions, perhaps even $trillions world wide loaned and invested and control the regulators. Why would the take the risk of various products and services being marketed and sold that could compete against things they are already involved with and control. The have a very neat little system in place and will use various means to keep it this way. There are thousands of stories on the various methods used ranging from accident to economic hit men.

  16. When I pushed the tag to open the case opinion itself on the article a sign came up on the screen that the opinion or file was damaged and would not open up. NSA at work. Just like they did to my Dogalogue Machine.

  17. One day…. One day…. Justice will prevail…. The judge is to be commended…..

  18. ““My personal opinion is that they executed Bin Laden,” begins Jeremy Scahill, unblinkingly.

    “If you strip it down, what you had is an unarmed elderly man, in his bedroom, shot in the face by the most elite force in the world. Almost everything that the White House officials told us that happened in the compound that night turned out to be a total fabrication.

    “I would have loved to have seen Bin Laden put on trial for his crimes. He had been indicted, in the 1990s, and was a reprehensible criminal, but I don’t believe for one second they were given orders to capture him, I think the whole point was to kill him.”

    He sighs.

    “I wasn’t like, boo hoo, Bin Laden’s dead, but I wasn’t jumping. America’s a very nationalistic country, and in episodes like that of his death, it becomes jingoism. People are drinking, dancing in the street, chanting USA like they’re at the World Cup, like they won it… It’s sick that we turned it into a sporting event.”

    http://www.huffingtonpost.co.uk/2013/12/11/jeremy-scahill-dirty-wars_n_4424944.html?ncid=edlinkusaolp00000003

    This is a good ruling. Justice does not come to anyone through the govt.’s lies. We have to want the truth as a society, as individuals. Right now, not enough people will demand justice. We need to change. This ruling is about trying to set things right. But there is a larger social movement which must form to support justice.

  19. Judges have historically been rubber stamps for Government, both with prosecutions and legislation. It’s just like with all the constitutional abrogations throughout history, that obviously usurp the intent of our founders and the Citizens they represented. There is a proper ways to change the Constitution, if there is a belief that the original intentions are no longer valid. It truly, in my opinion, brings into question, as to if our nation is even lawfully constituted today. How many abrogations to our Constitution must exist, before our government is no longer a valid constitutional republic? I sadly do not expect either Congress or the Judiciary to ever address such an issue, leaving the sheeple to hide from the winds of tyranny and oppression.

  20. Very well written article about the most important topic discussed on the blog. Can someone inform us who the “Brady Bunch” are on that Court of Appeals so that we can email them our concerns? Perhaps when all the comments are said and done we can fax the entire set to the Clerk for posting on their old fart bulletin board because they probably are not up to snuff on the technology of emails.

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